be expreffed, that the fheriff fhall not deliver them without writ, making mention of the judgment. And it further enacts, that if the party make default again, or for any other caufe return of the diftrefs be awarded, being now twice replevied, the diftrefs fhall remain irreplevisable.

By 45 Ann. c. 16. The plaintiff, with leave of the court, may plead as many pleas as he fhall think neceffary;

Jackfon, 28
G. 2. C. B.

and if a verdict be found on any iffue for the defendant, Bright and cofts fhall also be given; unless the judge certify that the plaintiff had a probable cause to plead fuch matters.

If iffue be joined on the property, the defendant may give Godb. 98. in evidence, the plaintiff's having the cattle in mitigation

of damages.

If the plaintiff plead riens arrear in bar to an avowry for rent, he cannot upon fuch iffue give in evidence

non-tenure.

Henley, per

If the defendant avow the taking damage feafant, and the Pring and. plaintiff prescribe for common for all commonable cattle, and upon issue joined thereon, give in evidence common for at Exon 1700. heep and horfes only, this will not maintain the issue; but

if he had a general common, and prefcribed for common for

any particular fort of cattle, it would be good.

Handing and Johnson, M. 20G. 2.

1 Vent. 54.

If a man prescribe for a certain number of cattle, it is not Raym. 726, Deceffary to shew they were levant and couchant, becaufe. it is no prejudice to the owner of the foil, the number being afcertained: But if the prescription be for a number uncertain, they must be levant and couchant; but a prescription for all cattle levant and couchant will be good; and need not be for all his cattle; for levancy and couchancy are a fufficient af. certaining what cattle may be put in, for no more fhall bet faid to be levant and couchant than the land is fufficient to maintain, and if the plaintiff were guilty of any fraud as to that the defendant may take advantage of it in pleading. If the jury find the plaintiff has common by prescription prout he has prefcribed, paying for it every year one penny to the defendant; the plaintiff fails in his prefcription, for it is intire, and the payment of one penny parcel of it. But in Gray v. Fletcher, where the copyholder prescribed to have common, and the jury found he had common prout he had prefcribed, but alfo found that the copyholders of that manor had used to pay to the lord a hen and fiye eggs yearly pro eadem communia,

Lovelace and

Reynolds,

Cr. E. 546. 5630

Co. 79.

Cro. El. 495.

it was adjudged to be well; for they were two prefcriptions, and the diftinction between this cafe, and the cafe of Lovelace and Reynolds, was taken and allowed in Kenchin and Knight, Mic. 23 G. 2.

So if a man prefcribe for common appendant to 300 acres in four towns, and the evidence is, that it is appendant to 200 acres, in two of the towns only, this will not maintain the stue; bu if he prefcribe for common appendant to his house and 20 acres, and upon evidence it appears that he has but 18, that will maintain his issue.

If a man avow taking the cattle, damage feafant, and the plaintiff plead tender of amends and a refufal, he fhall recover damages for the detaining, and not for the taking, because the taking was lawful; but if the tender were before the taking, the taking is tortious; if after impounding, neither the taking nor detaining is tortious. And after the avowant has had return irreplevifable, yet if the plaintiff make fufficient tender, he may have detinue for the detainer after.

In an avowry for rent the plaintiff may plead a tender and refufal, without bringing the money into court; because if the diftrefs were not rightfully taken, the defendant must anfwer the plaintiff his damages.

Note; That in order to prevent vexatious replevins of diftreffes for rent, the 11 G. 2. c. 19. enacts, that sheriffs and other officers granting replevins, fhall take from the plaintiff, and two refponfible perfons as fureties, a bond in double the value of the goods diftrained (to be afcertained by oath) conditioned for profecuting the fuit with effect, and for a return of the goods; and the fheriff is authorized to affign the bond to the avowant or perfon making conulance; and if the bond be forfeited, the avowant may bring an action in his own name, and the court may by rule give relief to the parties, &c. It has been holden, that an action upon the cafe will lie against a fheriff for taking infufficient pledges, and that withcut any previous fi. fa. againft the pledges.

In fuch action against the fheriff, fome evidence must be given by the plaintiff of the infufficiency of the pledges or furetics; but very flight evidence is fufficient to throw the proof on the sheriff: For the fureties are known to him, and he is to take care that they are fufficient.

Smart, Tr.

In replevin, both plaintiff and defendant are actors, there- Fggleton and fore either party may carry down the caufe; and if the defendant give notice, and do not go on to trial, the court will give cofts against him; for the fame reafon, the defendant may not move for judgment of non-fuit, unless the plaintiff have given notice of trial.

CHAPTER v

Of Refcous.

RE

ESCOUS is where the owner, or other perfon, takes F. N. B. 10. away by force a thing diftrained from the perfon diftraining, but the perfon must be actually in poffeffion of the thing, or else it is no refcous; as if a man come to make a diftrefs, and he be disturbed to do it; but the party may bring an action on the cafe for this disturbance.

The plaintiff ought to count for what rent or fervices F. N. B. 230. he took the diftrefs, and the defendant may traverse the

tenure.

If a man fend his fervant to diftrain for rent, &c. and rescous be made, the mafter shall have the writ, and he may join in the writ for the affault and battery of the fervant.

If a diftrefs be taken without caufe as where no rent is due, one may make refcous before the cattle is impounded. So if the owner tender the rent before the diftrefs taken.

If a man diftrain 40 fheep of A.'s, and as many of B.'s Cr. J. 468. damage fcafant, A. cannot by reason of the right of common

in the place where, and that he could not feparate his sheep

from B.'s, juftify refcuing B.'s fheep with his own. N. B. Co. L. 161,

The beats must be damage feafant at the time of the diftrefs,

and if they were damage feafant yesterday, and again to-day,

they can only be diftrained for the damage they are then doing. Ca. K. B. 660,

But by 11 G. 2. c. 19. If the leffee fraudulently convey

Heath's Maxim 76.

6 M. 211.

his goods from the premiffes, the leffor may within thirty days feize them as a diftrefs, where-ever found.

If the defendant plead Not Guilty, (which is the general iffue) he cannot give in evidence non-tenure of the plaintiff who diftrained for rent, but he ought to plead it.

But this action is rarely brought now-a-days, but a special action upon the cafe, in which non-tenure might be given. in evidence on the general iffue.-Note; by 2 W. & M. c. 5. 4. the plaintiff fhall recover treble damages, if the diftress be for rent, in fuch action upon the case for an unlawful refcous.

Refcous may likewife be made of any one taken up on legal process, and for fuch refcous the plaintiff may bring an action of rescous, or an action on the cafe against the refcuers. To fupport his action, it will be neceflary for him to prove, 1. The original cause of action. 2. The writ and warrant; which must be by producing fworn copies. 3. The arreft to fhew it legal. 4. In point of damage, it is expedient to prove that the perfon arrefted became infolvent, or not to be found; but this is not neceffary, for the defendant being guilty of violence against the process of the law fhall have no favour. However he may give in evidence, in mitigation of damages, the ability of the perfon arrefted, or that he is Jenk, 311. pl. ftill amenable to juftice; yet if the jury give the whole debt in damages, the court will not grant a new trial.

93.

6 M. 211.

Salk. 79.

Horner v.
Battyn & al.

B. R. H.
12 G. 2.

The perfon rescued may be a witnefs for the defendant, and though he be particeps criminis, if the defendant be guilty yet it fhall only go to his credit.

Note; That bare words will not make an arreft, but if the bailiff touch the perfon, it is an arreft, and the retreat a refcous. On a motion for an attachment against three perfons for a rescous of a perfon taken in execution, it was objected that there had not been, a legal arreft, as the bailiff, had never touched the defendant-per curiam, this is a good arreft; and if the bailiff who has a procefs against one, fays to him when he is on horseback, or in a coach, “you are my prifoner, I have a writ against you," upon which he fubmits, turns back or goes with him, tho' the bailiff never touched him, yet it is an arreft, because he fubmitted to the procefs but if inftead of going with the bailiff, he had gone or fled from him, it could be no arreft unless the bailiff had Jaid hold of him.

By

By 29 Car. 2. c. 7. f. 6. An arreft may be made on a Sunday for treafon, felony, or breach of the peace; but in other cafes, an arreft on a Sunday is void, infomuch that the party may have an action of falfe imprisonment: But a perfon may be re-taken on a Sunday, when arrefted the day before. So bail may take their prisoner on a Sunday, and render him on the next day.

Salk. 78.

2 Mod. 2307

Chief Juftice Holt doubted whether an arreft made by a 6 M. 211. bailiff's fervant would be lawful, even though in the prefence of a bailiff; and where the bailiff fent his follower up ftairs to arrest a man who was rescued by the defendant, referved the cafe for his opinion. But howsoever such a cafe might be determined, yet it would certainly not be good, if the bailiff were not quodam modo in his company.

It is not neceffary to fhew the warrant, or to tell at whofe Cr. J.-485 suit you arrest him, unless he demand it: And if you have two warrants in your pockets against him and produce neither, if he be rescued, either party at whofe fuit the warrants were made out may bring an action against the refcuers.

IR. R. 440

If the party rescued were taken upon procefs of execution, Cr. J. 419. the sheriff may maintain an action against the rescuers, because he is liable to an action of efcape; for he cannot return a rescous as he may upon mefne process. But if the prifoner had been once in gaol upon mefne process, the sheriff ought at his peril to keep him, and a refcous from thence is no excufe for him, neither is it an excufe where the fheriff is bringing him up by habeas corpus; and confequently in füch cafe likewife, he may have an action against 1 Str. 434. the rescuers.

In the return of a refcous, it is not neceflary to aver the Dy. 212. S. P. place where the refcous was made, if the place of the arreft be fhewn, for the refcous fhall be intended to be in the fame

place. It feems as if fuch a return is traverfable. Rex v. Clark and others, Tr. 29 Car. 2.

CHAP,