Larkin v. Wilburn

2 Blackf. 343, 1830 Ind. LEXIS 19

• Court: Indiana Supreme Court
• Decided: November 13, 1830
• Status: Published

Opinion

IN an action of replevin by Larkin against Wilburn, the defendant avowed the taking of the goods as a distress for rent, due to him from the plaintiff. To this avowry, the plaintiff pleaded non Ienuit and riens in arrear. Issues were joined upon these pleas. There was a verdict for the defendant on both the issues; the jury finding the amount of rent in arrear, but not the value- of the goods distrained. The Court held, that the common-law judgment for a return of the goods to the defendant, and for his costs of suit, might be rendered on this verdict; but that there could be no judgment in his favour for the arrears of rent

(1).

If the verdict, as in the case in the test, be against the plaintiff, the jury should inquire concerning the sum of the arrears, and the value of the distress; and the defendant will thereupon have judgment for the rent arrear, if the distress amount to the value of it, with costs. If the value of the distress be less than the anears of rent, the judgment is for the value of the distress, with costs. R. C, 1831, pp. 425, 426.—17 Car. 2. c. 7.—2 Selw. N. P. 379.