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distress be tortious. As if he come on the land to distrain, and the tenant then tender the arrears due; in such case, if he distrain the cattle, it is tortious, and the defendant may replevy (a).—But it is not sufficient for the tenant to say that he was on the land on the day and ready to pay the rent; for if he did not make a tender at the time of the distress made, the taking was not tortious (b). The tender must be before the impounding, for when impounded they are in custodia legis (c).

Replevin was of cattle taken in A. The defendant avowed the taking in A. under a demise of certain premises of which B. was parcel, and because the cattle were damage-feasant in B. he took them and drove them through A. in his way to the pound ; and upon general demurrer the avowry was held to be well pleaded (d).

To an avowry for rent, the plaintiff in replevin may plead payment of an annuity reserved out of the demised lands (with power of distress) previously to the demise to him, for the arrears of which, the grantee of the annuity had threatened to distrain (e).

To an avowry for rent in arrear, the plaintiff pleads in bar, "that before and at the time of the supposed demise, and when the supposed rent became due, she was married to one J. C." Held that whether it were to be presumed that the coverture continued up to the time when the distress was taken or not, the plea was no answer to the avowry (f).

The plaintiff in replevin may plead in bar to the defendant's avowry or cognizance that he did not hold as tenant, with a plea of infancy (g).

Non demisit; nothing in arrear; nothing in arrear for part of the rent and tender of the residue; are good pleas to an avowry for rent (h).

So, a tender "and refusal may be pleaded to such avowry, without bringing the money into Court; because if the distress were not rightfully taken, the defendant must answer the plaintiff his damages (»).

After an avowry for rent arrear the plaintiff may pay into Court the rent for which the defendant avows, because the demand is certain: but not where the damages are unliquidated (k).

That the avowant afterwards used or sold the cattle or goods distrained, may also be pleaded (/).

So, to an avowry for rent, the tenant may plead payment of a ground-rent to the original landlord, which he paid to protect him

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self from a distress; for it is a payment of so much to the immediate landlord (a).

But the plaintiff cannot plead a set-off; because this action is founded in a tort, and the stat. 2 G. 2. does not extend to such actions; besides a set-ofF supposes a different demand arising in a different right (b). Neither can a mutual demand be given in evidence, where the defendant justifies under a distress.—Yet it is said, that he may plead a mutual debt of more than the rent by way of special plea to the avowry (c). At all events, payment may be pleaded. Therefore where to an avowry for rent, the tenant pleaded payment of a groundrent to the original landlord, it was holden good (a).

An allegation of payment of land-tax and paving-rates due for any period preceding the current year, is no plea in bar to an avowry for rent arrear (d).

If the land-tax and paving-rates be not deducted, (as they ought to be) from the rent of the current year, they cannot be deducted, or the amount of them be recovered back, from the landlord in any subsequent year (d).

A plea in bar in replevin stated, that divers sums of money, amounting to a certain sum, had been from time to time, duly assessed and rated upon the premises for land-tax, and from time to time paid by the plaintiff; wherefore he deducted the said sum, being the amount of the tax which defendant, as landlord, was liable to bear in respect of the rent. Held that this plea was bad, for not stating the specific periods for which the respective sums were assessed or paid, and in not stating that the payment was made after the rent distrained for had accrued, or was accruing (e).

In an avowry for non-payment of rent, a plea in a bar is de injur, sua propria absq. hoc, quod prad. R. cepit, &c. Non cepit is'a good traverse, but he should pursue his title, and de injury, sua propria is enough (/).

In replevin, plea of a former distress for the same rent, without adding that the rent was satisfied, is bad (g).

After issue joined upon a plea in bar to an avowry, the Court will not suffer the plea to be withdrawn and the avowry confessed, without consent, for the avowant will lose his costs (b).

As to what shall be a departure, replevin was for taking the plaintiff's goods and chattels, to wit, a lime-kiln, avowry for rent, plea in bar, that the lime-kiln was affixed to the freehold: the Court held

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the plea in bar bad, because it was a departure from the declaration, which had treated the limekiln as a chattel (a).

In an avowry for a distress for rent, the avowant was to shew a seisin, and such seisin by the star. 32 H. 8. c. 2. must be alleged within fifty years before the making of the avowry or conusance: and -though by stat. 21 H. 8. c, 19. the lord need not avow upon any person in certain, yet he must allege seisin by the hands of some tenant in certain, within fifty years.—Where the commencement of the rent appears, seisin is not material.

The stat. 32 H. 8. c. 2. which limits an avowry or conusance for rent, suit, or service, to a possession of fifty years next before making the avowry, &c. does not extend to a new rent created by Act of Parliament.

Where a tenant by mistake or misrepresentation, pays rent to a person not entitled to demand it, he is not precluded, by such payment, from giving evidence on a plea of non fenuit, in replevin against the supposed landlord, to shew that the latter is not entitled to the rent (£).

Proceedings in replevin will be staid after conusance, and plea in bar, upon payment of costs of the action and distress, and replevying and delivering up the replevin-bond to be cancelled, there being no special damage (c).

S Avowry, C. for Cattle damage-feasant.—Respecting avowry or conusance for damage-feasant, if the defendant avow, or make conusance for damage-feasant, he must shew, that the place where, &c. is his freehold, or the freehold of B. under whom he makes conusance: and if he say that he himself or B. was seised, he must say of what estate in fee, tail, or for life.

So, the bailiff who distrains for damage-feasant in right of a devisee, must set forth what estate the devisor had ; it is not sufficient to say in general, that he was seised.—The stat. 11 G. 2. applies only to avowries for rent arrear (d).

In replevin the title was by a lease made by a parson, and the avowry was that A. was seised of the rectory of H. and made the lease without shewing that he was parson: and by the Court, that would have been a good exception, had it not been said in the avowry, that he was seised injure ecclesia, which supplies all (d).

The general rule indeed in pleading is, that where a title is made under a particular estate, the commencement of that estate must be shewn, but that an estate in fee may be alleged generally (d).

(a) Niblct v. Smith. 4 T. R. Joj. | (c) Banks v. Brand. 3 M. & S. stS

(i) Rogers v. Pitcher, 1 Mais. 541, 6 (d) Bac. Abr. tit. Replevin. (F.) taunt, aoa. S. C. I (e) Ibid. Esp. »J J. 844.

In an avowry the issue was, whether the place where, &c. was the freehold of the avowant or not, and it was found by the verdict, that it was the freehold of the avowant's wife. Et per Cur.—It is found against the avowant, for when he saith his freehold, it is to be intended his sole freehold, and in his own right (a).

Though the cattle of a stranger cannot be distrained unless they were levant and couchant, yet it must come on the other side to shew that they were not so (a).

In replevin for bona, catalla, et averia, a conusance of the whole and a justification for part is bad; for if a distress be entire, and it be wrong in part, it is'bad for the whole (a).

If a man take a distress for a thing for which he had good cause of distress, but had good cause of distress for another thing, if a replevin be brought and he come into Court, he may avow for which he pleases (a).

To an avowry that the freehold was in the defendant or the party under whom he makes conusance, the plaintiff may say in bar, that it is his freehold; or the freehold of A. and by licence he puts his cattle there \ or, a special title by devise, fine, demise, &c. (b).

So, the plaintiff may plead in bar to an avowry, de son tort, with a traverse that locus in quo, b'V. is parcel of the tenements alleged to be held (c).

'Replevin for taking his cattle in the road, avowry for damagefeasant in the four acres, so took them there and drove them along the road to impound them; plea, in bar, that the road is not parcel of the four acres; upon demurrer, the avowry was held well enough and the plea ill; for by connecting the beginning of the avowry and conusance with the latter end thereof, it appeared to be one entire transaction (d).

So, the plaintiff may plead in bar "tender of amends" (e).

If the defendant plead that he was seised of three acres in locus in quo, C. it is sufficient, without saying how many acres the locus in quo, C. had.

Where there were two issues, and one only found for the avowant, he had judgment.—Where the parties agree in the facts, the circumstance of the jury finding otherwise is not material (a).

By stat. 21 H. 8. c. 19. all plaintiffs and defendants shall have like pleas and like aid primers in all such avowries, conusances, and justifications (pleas of disclaimer only excepted,) as they might have had before the Act.

(a) Bic. Abr.cit. Replevin. (F.) Esp. N. P. i (d) Mettravers v. Fosset. 3 Wils. ajy

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Section III. Of the Verdict and Judgment in Replevin.

On the execution of the writ of replevin by the sheriff, the beasts distrained are actually returned to the plaintiff, so that he hath the possession and use of the cattle pending the suit; consequently if the plaintiff in replevin have judgment, it can only be for damages.

At common law (even before the statute of Gloucester) the plaintiff in replevin could recover damages, and by that statute his costs. But the avowant or defendant was not entitled to either, till the 7th H. 8. c. 4. which gives damages and costs to every avowant, and to every person making conusance, or justifying as bailiff in replevin, for any rent, custom, or service, if his avowry, conusance, or justification be found for him, or the plaintiff be otherwise barred. Also, by scat. 21 H. 8. c. 19. it is enacted, "That every avowant, and every other person or persons that make any avowry, justification, or conusance, as bailiff or servant to any person or persons in any replegiare or second deliverance, for rents, customs, services, or for damages feasant, or for rent or rents, upon any distress taken in any lands or tenements, if the same avowry, or conveyance, or justification, be found for them, or the plaintiffs in the same be nonsuit, or otherwise barred, that then they shall recover their damages and costs against the said plaintiffs, as the same plaintiffs should have done, or had if they had recovered in the replegiare or second deliverance found against the defendants (a).

Neither this statute, nor that of 43 Eliz. [if the defendant avow as overseer for a distress for a poor's rate] tie the inquisition up to the same jury as are returned or impannelled, as the stat. 17 C. 2. c. 7. (of which hereafter) does. If, therefore, there be a verdict for the plaintiff, the jury usually assesses the damages: or the jury after verdict may be dismissed, and damages be assessed by the Justices, with the defendant's consent. Or if the jury do not assess the damages, and the goods, &c. should be detained, the plaintiff may make a suggestion thereof upon the roll, whereupon a writ shall go to inquire of the value of the cattle, &c. and damages; upon which the plaintiff shall have judgment for both (a).

If there be judgment for the plaintiff upon a relictd verificati;nt, cognovit actionem, nil dicit, Wc. or for want of a replication to his plea in bar to the avowry, or upon a demurrer, a writ of inquiry of damages shall be awarded: or at the request of the plaintiff, by the assent of the defendant, the Justices may assess the damages without such writ (a).

But if there be judgment for the plaintiff, quod adhuc detintt by de

(») 4 Sell. Pact. 271-*.

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