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REPLEVIN.

The evidence in the action of replevin varies according to the nature of the issue joined.

In some cases the defendant is allowed by statute to plead not guilty, or, in a general form, that the matter complained of was done under the authority of an act of parliament, and to give the special matter in evidence under such general plea; as by 43 Eliz. c. 2., s. 19., in the case of poor rates, and by 23 Hen. 8., c. 5., s. 11. in the case of sewers' rates. I Saund. 347. c. (n.) These cases are expressly exempted from the operation of the new rules of pleading.

Evidence on non cepit, or cepit alio loco.] The plea of non cepit, that the defendant did not take the cattle, &c. is termed the general issue in replevin. It lies upon the plaintiff to prove this issue, and if found for the defendant it merely excuses him from damages, but does not entitle him to a return. It is sufficient for the plaintiff upon this issue to show that the defendant had the goods in his possession in the place in which, &c.; for the wrongful taking is continued in every place in which he afterwards detained them. Wallon v. Kersop, 2 Wils. 354. The place in which goods are alleged in the declaration to have been taken is material. Weston v. Carter, 1 Sid. 10. If in fact the defendant neither took the cattle in the place named, nor had them there afterwards, the plaintiff must be nonsuited; but he is not entitled to a return, or to damages under 7 Hen. 8., c. 4., and 21 Hen. 8., c. 19., unless he pleads cepit alio loco, and adds an avowry by way of suggestion. 1 Saund. 347., note to Potter v. North. This avowry, so added, is not traversable.

Property in defendant or a stranger.] The defendant may set up the right of a third person, or of himself, to the property in the goods; for he has a right of possession against all but the right owner at the time of replevying. Bro. Replevin, pl. 31. Butcher v. Porter, 1 Salk. 94. The plea always traverses the property of the plaintiff; yet on issue thereupon, the defendant is to begin, because he also alleges the property to be in a third person named in the plea, or in himself. Colstone v. Hiscolbs, 1 M. & Rob. 301., cited antè, p. 177. And the plaintiff may prove property in part of the goods. Com. Dig. Pleader, 3 K. 12.

Avowry.] The defendant usually avows or makes cognizance in order to obtain a return of the goods; to which avowry or cognizance the plaintiff pleads in bar. The proofs under the most usual pleas in bar will be stated.

Avowry for Rent.] Where the distress is for rent, it is enacted, by 17 Car. 2., c. 7., s. 2., that in case the plaintiff shall be nonsuited after cognizance or avowry made and issue joined, or if a verdict shall be given against the plaintiff, then the jurors, impannelled or returned to inquire of such issue, shall at the prayer of the defendant inquire concerning the sum of the arrears, and the value of the goods or cattle distrained; and thereupon the avowant, or he that makes cognizance, shall have

judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, &c. The avowant, therefore, must be prepared to prove both the amount of the rent in arrear and the value of the goods or cattle taken; and the omission of this inquiry cannot be supplied by a writ of inquiry; Sheape v. Culpeper, 1 Lev. 255., 1 Saund. 195. b. (n); though the defendant may have the common law judgment for a return. Rees v. Morgan, 3 T. R. 349. In all cases, except avowries for rent, the omission may be supplied by writ of inquiry. 1 Saund. 195. b. (n).

Fraudulent removal.] A distress on goods fraudulently removed must be specially pleaded, and cannot be shewn under the general form of avowry. 2 Saund. 284. (n). The rent must be due at the time of removal; Rand v. Vaughan, 1 New Ca. 767.; and if the plaintiff pleads in bar denying the fraudulent removal, the defendant must shew that there was no sufficient distress left on the premises. Per Tindal, C. J., in Parrey v. Duncan, M. & M. 533. But the removal need not be shewn to be secret. S. C. ib. And even where the tenant admits he removed to avoid a distress, it is a question for the jury whether there was fraud. John v. Jenkins, 1 C. & M. 227.

Evidence on plea of non demisit, or non tenuit.] To an avowry for rent arrear the plaintiff usually pleads non demisit or non tenuit, upon which issue the defendant must prove the tenancy as stated in his avowry. He must prove a demise at a fixed rent; and therefore if he only shows an agreement for a lease, it is insufficient. Dunk v. Hunter, 5 B. & A. 322; Hayward v. Haswell, 6 A. & E. 265. But though the plaintiff enters upon the land under an agreement for a lease in which the amount of the rent is not stated, yet if he occupies and pays yearly rent, he becomes tenant from year to year at that rent, and an avowry, stating the terms of the tenancy accordingly, will be sufficient. Knight v. Benett, 3 Bing. 361. So if, entering under such an agreement, he acknowledges half a-year's rent to be due. Cox v. Bent, 5 Bing. 185; and see Saunders v. Musgrave, 6 B. & C. 524. But unless a person entering under an agreement for a lease pays the rent or promises to pay a rent certain, or to settle a rent certain in account, no demise at a rent certain can be implied, so as to entitle the landlord to distrain. Regnart v. Porter, 7 Bing. 451. So a tenant holding over after notice to quit given by the landlord, but not paying rent, is not liable to a distress; the mere holding over not making him tenant upon the old terms. Jenner v. Clegg, per Parke and Bolland, Bs., 1 M. & Rob. 213. The terms of the tenancy must be proved as laid; therefore if the rent reserved is higher than the rent stated, it is a variance; for the contract must be truly stated. Brown v. Sayce, 4 Taunt. 320. So where the defendant avowed for an entire rent of 170l., and it appeared that he had only two-thirds of that rent as tenant in common of the reversion with another not named in the avowry, it was held a variance on non tenuit. Philpott v. Dobbinson, 6 Bing. 104. But where the defendant avowed for taking growing corn in four closes, and stated that the plaintiff held the closes in which, &c., at a yearly rent, and it appeared that he also held two other closes at that rent, this was decided to be no variance; for every part of the land was liable to the whole rent. Hargrave v. Shewin, 6 B. & C. 34. ; and see Page v. Chuck,

10 B. Moore, 264. If the tenant avows for rent payable at Martinmas, this means New Martinmas; and if it appears that it is in fact payable at Old Martinmas, it is a variance. Smith v. Walton, 8 Bing. 235. Where the rent was reserved payable "quarterly, or half-quarterly if required," and the landlord received the rent quarterly for twelve months, it was held that he could not, without notice, distrain for a half quarter. Mallam v. Arden, 10 Bing. 299. The defendant cannot, on an avowry for double rent under the statute 11 Geo. 2., c. 19. s. 18., recover the single rent. Johnstone v. Hudlestone, 4 B. & C. 938. A lease at a rent of 401., with a covenant to make an allowance out of it of 51. payable to third persons, cannot be alleged as a lease at a rent of 351. Davies v. Stacey, 12 A. & E. 506. Where there were pleas of non tenuit and tender, proof of a tender of a year's rent in November, without stating when it became due or the terms of the holding, is no proof of a holding from Michaelmas to Michaelmas as stated in the avowry. Knight v. M'Douall, 12 A. & E. 438.

Amendment on the very terms of the tenancy will be permitted at Nisi Prius on this issue. Gayler v. Farrant, 4 New Ca. 286. In replevin against the assignee of the reversion of part, the defendant may avow specially, and leave the jury to apportion, or may avow generally as for a certain rent, in which case the judge may amend either by directing the amount to be altered, or the avowry to be converted into a special one; and this amendment may be prayed for after verdict, and before it is recorded. Roberts v. Snell, 1 M. & G. 577.

As the plea of nil habuit in tenementis is a bad plea to an avowry for rent in arrear (Syllivan v. Stradling, 2 Wils. 208.), so the plaintiff is not allowed to give in evidence, under non demisit or tenuit, any matter amounting to nil habuit in tenementis, even though the title of the avowant be founded in fraud; Parry v. House, Holt N. P. C., 489.; for a tenant shall not be allowed to dispute the title of his landlord, antè, p. 197, 417. And where the plaintiff in replevin came into the occupation of premises under a person who had submitted to a distress by the defendant, it was held, that he could not dispute the title of the defendant, though the latter had put in evidence a deed which showed that the plaintiff's predecessor occupied under a lease to which the defendant was a stranger. Cooper v. Blandy, 1 New Ca. 45. So where the plaintiff, being put into possession by A., was told by A. that the defendant was entitled, and thereupon paid defendant his rent, he cannot afterwards upon non tenuit set up the title of a third party who has taken no steps to eject the plaintiff. Hall v. Butler, 10 A. & E. 204. But where the plaintiff came in under another person and not under the defendant, and had paid rent to the defendant in ignorance of a defect in his title, the court of Common Pleas held that the plaintiff might show the want of title in the defendant. Rogers v. Pitcher, 6 Taunt. 202.; Gregory v. Doidge, 3 Bing. 474.; Claridge v. Mackenzie, 4 M. & G. 143. So a payment or acknowledgment made under the influence of a fraudulent or false representation will not estop the tenant. Doe v. Brown, 7 A. & E. 447. So under the plea of non tenuit the plaintiff may show that the defendant's title expired before the rent became due. Gravenor v. Woodhouse, 1 Bing. 38.; and see Downs v. Cooper, 2 Q. B. 256. Thus where a person, having an equitable title only, made a lease, and afterwards assigned all his interest at law and in equity, and then brought ejectment, the tenant was permitted to show the assignment as an answer to the action; Doe v. Edwards, 5 B. & Ad. 1065;

and he may show his landlord's title expired though he has paid rent to him after such expiration, provided the rent was paid in ignorance of the landlord's title. Fenner v. Duplock, 2 Bing. 10. Land belonging to a parish was occupied by A., who paid rent to the church, wardens. The latter executed a lease of the land for a term of years to B., and gave A. notice of the lease. It was held that A. was not estopped by having paid rent to the church wardens from disputing B.'s title, and that the latter could not derive a valid title from the churchwardens, who were not a corporation so as to hold or convey land. Phillips v. Pearce, 5 B. & C. 433.

It is no variance, under non tenuit, if it appear that the plaintiff held for a less time than that stated in the avowry. Forty v. Imber, 6 East, 434.

Under non tenuit, the plaintiff may shew an eviction by a third person and a subsequent attornment to the evictor. Hopcraft v. Keys, 9 Bing. 613. But if the landlord has evicted his tenant, and no fresh tenancy has commenced, the eviction should be pleaded. Semb. ib. 617. The plaintiff may dispute the avowant's derivative title from the landlord under non tenuit. Rogers v. Pitcher, 6 Taunt. 202.

An avowry under 8 Anne, c. 14., for a distress six months after the end of the tenancy, must be special.

Evidence on plea of riens in arrear.] The plea in bar of riens in arrear, proof of which lies on the plaintiff, admits the demise stated in the avowry. Therefore where, to an avowry for rent due upon a quarterly holding, the plaintiff pleads riens in arrear, he cannot shew that the holding is half-yearly and that no rent had accrued. Hill v. Wright, 2 Esp. 669. It will not be sufficient to support this plea to shew that part of the rent has been satisfied; for the defendant will be entitled to a verdict if it appear that part of the rent is in arrear. Cobb v. Bryan, 3 B. & P. 348. The plaintiff may, as it seems, under this plea (although a special plea as usual) shew that he has paid the rent to a superior landlord under a threat of distress; for such payment is in law a payment to the immediate landlord so as to leave no rent in arrear. Taylor v. Zamira, 6 Taunt. 524. ; Stubbs v. Parsons, 3 B. & A. 519. The payment is not less compulsory because the ground landlord has allowed the occupier time to pay. Carter v. Carter, 5 Bing. 406. So where a demand in respect of interest on a mortgage affecting the premises is paid with the avowant's assent, the plaintiff may avail himself of the payment under this plea. Dyer v. Bowley, 2 Bing. 94.; and see Pope v. Biggs, 9 B. & C. 245. But it is doubtful whether a collateral payment by the tenant, though stipulated for in the lease, can be shewn on this plea. Davies v. Stacey, 12 A. & E. 506. See further antè, p. 405. Where the plaintiff pleaded non tenuit, and riens in arrear, and the first issue was found for him, the second issue was held immaterial, and the proper course was to discharge the jury from finding any verdict upon it; Cossey v. Diggons, 2 B. & A. 546.; but as the costs of each issue are now divisible, a verdict must now be found on each, except by consent.

Evidence on traverse of being bailiff] If the plaintiff traverses that the defendant is bailiff as stated in the cognizance, the defendant must prove his authority to make the distress; and a recognition of his act

Trevillian v. Pine, 11 Mod. will be equivalent to a previous command. 112., 1 Saund. 347. d. (n). And the ratification may be after action. Per curiam in Whitehead v. Taylor, 10 A. & E. 213. One joint-tenant, or coparcener, or co-heir in gavel-kind has an authority in law, without proof of any express_command, to distrain as bailiff of his co-tenant; Leigh v. Shepherd, 2 B. & B. 466. ; but it is not clear that he can do so in spite of the express dissent of his co-tenants. S. C., and Robinson v. Hofman, 4 Bing. 565., and one tenant in common cannot receive the share of rent due to his co-tenant after notice to the plaintiff not to A corporation may pay it to him. Harrison v. Barnby, 5 T. R. 246. appoint a bailiff to distrain without deed. Smith v. Birmingham Gas Co., 1 A. & E. 526. Where defendant makes cognizance as bailiff of an executor for rent due to the testator, it is enough to prove a distress by the testator's direction, made after his death and before probate, but subsequently adopted by the executor. Whitehead v. Taylor, 10 A. & E.

210.

Evidence on avoury for damage feasance.] Where the defendant avows taking cattle damage feasant, he may plead that the locus in quo is his soil and freehold, which the plaintiff may deny, and the evidence in such case will be the same as under the plea of liberum tenementum in trespass quare clausum fregit. See post, tit. Trespass. So the plaintiff may plead in bar the defect of fences which the defendant was bound to repair, whereby the cattle escaped ; a right of common, way, &c. ; Com. Dig. Pleader, (3 K. 23.); in which cases the evidence will of course depend upon the issue joined.

Evidence on a plea of tender.] To an avowry for rent the plaintiff may plead a tender of the rent; to an avowry for damage feasant a tender of amends. A plea to an avowry for rent of a tender of 161. is not supported by proof of a tender of 15. 16s., though no more rent be due than the sum proved to have been tendered. John v. Jenkins, 1 C. & M. 227. A tender before distress makes the taking unlawful; after distress, and before impounding, the detention unlawful. Six Carpenters' case, 8 Rep. 146. b.; Ladd v. Thomass, 12 A. & E. 117. Although it has been held that a tender of amends to a mere bailiff is not good; Pilkington's case, 5 Rep. 76. ; 1 Brownl. 173. ; yet if the bailiff is the avowant's usual receiver, or if it appear from other circumstances that he is his agent for that purpose, such tender is good. Gilb. Repl. A tender to one deputed by the 89.; Browne v. Powell, 4 Bing. 230. bailiff is bad. Pimm v. Grevill, 6 Esp. 95. Tender either to the landlord or to his bailiff who makes the distress is sufficient. Smith v. Goodwin, 4 B. & Ad. 413.

Damages.] The damages recovered by the plaintiff are usually confined to the expence of the replevin bond, unless some special damage be alleged and proved.

Competency of Witnesses.

It has been held that the declarations of a person, under whom the defendant makes cognizance, are not evidence for the plaintiff, because he may be called as a witness for the plaintiff; Hart v. Horn, 2 Camp.

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