Executors.

one of several co-heirs in gavelkind, in his own right, with a cognizance as bailiff of the other co-heirs, is sufficient without averring an authority to distrain from the other co-heirs. An avowry by a husband alone in his own name for rent due in the right of his wife, is good, if it appear on the record that he was entitled to make the distress b. Tenants in common cannot join in an avowry for rent, though they must join in an avowry for damage feasant c.

An executor or administrator may avow for rent due to the deceased, in his lifetime; and he need not shew the testator's title, or how he (the defendant) was entitled to distrain; at all events, the omission cannot be objected to after verdict ; nor need he shew how the plaintiff became entitled to hold the premises f. In replevin, an avowry or cognizance for rent admits the property of the goods in the plaintiff'; but if the plaintiff's plea subsequently shows the property of the goods to be in another, the plaintiff cannot maintain the action 8. Where the avowry is for parcel of a rent, or penalty only, it ought to shew that the residue has been satisfied or discharged, otherwise it will be bad on demurrer h.

3.—Avowries and cognizances for damage feasant.] Avowries and cognizances, damage feasant, are not within the 11 Geo. II. c. 19, the title of the avowant, therefore, must be set forth with particularity. It is not sufficient to state that the defendant was lawfully seised or possessed, &c., but the seisin in fee, or the demise, must be set forth according to the fact. Where in replevin 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.,

a

Leigh v. Shepherd, 5 Moore, 297. 2 B. & B. 465.

b Wise v. Bellent, Cro. Jac. 283. Gravenor v. Woodhouse, 9 Moore, 148.

Harrison v. Barnby, 5 T. R. 246. Cully r. Spearman, 2 H. Bl. 386.

d 32 Hen. VIII. c. 27. 3 & 4 W. IV. c. 42. s. 37.

e

Martin v. Burton, 1 B. & B. 279. 3 Moore, 608.

f Meriton v. Gilbee, 8 Taunt. 159. 2 Moore, 48.

Clarke v. Davies, 7 Taunt. 72. h Hunt v. Braines, Mod. 402. Holt . Sambach, Cro. Car. 104. Johnson v. Baines, 12 Mod. 84.

Bac. Ab. Rep. F. Hawkins . Eccles, 2 B. & P. 359.

he took them and drove them through A. in his way to the pound; upon general demurrer, the avowry was held to be well pleaded".

SECTION VII.

SUBSEQUENT PLEADINGS.

THE defendant having pleaded, or avowed, or made cognizance, the plaintiff either suffers judgment by default, or replies to the plea in abatement or in bar, or confesses judgment on the avowry or cognizance, or pleads thereto; an avowry or cognizance being, as we have seen, in the nature of a declaration, the plaintiff's reply thereto is termed a plea and not a replication, as in other actions. A plea in abatement of an avowry is unheard of in modern practice. Pleas in bar traverse some allegations in the avowry or cognizance, or allege new matter.

Formerly it was considered that de injuria could not be De injuriâ. pleaded to an avowry ; but in a modern case it has been held, that to an avowry under a distress for a poor's rate, a general plea in bar de injuria was sufficient. To an avowry or cog- Nil habuit nizance for rent, the plaintiff cannot plead nil habuit in tenementise; but he may plead non demisit or non tenuit, or a tender of Non dethe rent 8.

Where an avowry stated that the defendant held the premises at a certain yearly rent, to wit, the yearly rent of 721, and the plaintiff pleaded, first, non tenuit; and secondly, riens in arrière; and the first plea was found for the plaintiff; held, that the second plea became thereby immaterial, and that the proper course was to discharge the jury from finding any verdict upon

in tenementis.

misit.

Levancy and couchancy.

Payment.

Set off.

it, but that if any verdict was entered upon it, it must be entered for the plaintiff a.

In replevin for taking a stranger's cattle for rent in arrear, a plea, that the cattle "were not levant and couchant in the close in which," &c., is bad on demurrer, for not showing the circumstances under which the cattle came upon the close, so as to entitle them to be privileged from distress; for the mere want of levancy and couchancy was not sufficient to protect them from distress; if they were on the premises with the consent of the owner, levancy and couchancy were immaterial ".

Payment may be pleaded in bar to an avowry". Therefore to an avowry for rent, the tenant may plead payment of a ground rent to the original landlord. So he may plead payment of an annuity, secured out of the lands demised previously to the demise to him, for the arrears of which the grantee of the annuity had threatened to distrain. Where to an avowry in replevin for rent in arrear, the plaintiff pleaded in bar, payments for land-tax and paving rates for six successive years, in order to avoid a distress; and that the sums so paid by him exceeded the amount of the rent distrained for; held, that such a plea was bad on demurrer, as the tax and rates should have been deducted by the plaintiff from the rent of the current year, and as the plea in substance amounted and was equivalent to a set-off. The plaintiff cannot claim on his plea, a deduction for land-tax, unless the sum distrained for was due at the time of such payments. The statutes of set off do not extend to the action of replevinh. But a plea in bar that the plaintiff had let other property to the defendant at a larger rent, and that it had been agreed that the two rents should be set off against each other, has been held goodi.

1337

Replevin for taking the plaintiff's goods and chattels; to Departure. wit, a lime-kiln; avowry for rent; plea in bar that the limekiln was affixed to the freehold; the court held the plea in bar to be bad, because it was a departure from the declaration a.

To an avowry or cognizance for damage feasant by a free- Plea to an holder, a copyholder, or his tenant, the plaintiff may deny his avowry for title, or allege title in himself, or in some other person by feasant. damage whose license he put his cattle there; or he may allege a right of common in the locus in quoc; or he may plead "a tender of

amends." d

In replevin, the plaintiff may plead several matters to an avowry or recognizance, but not to pleas in bar or justifications. But by Reg. Gen. H. T. 4 W. IV., pleas, avowries, and cognizances, founded on one and the same principal matter, but varied in statement, description, or circumstance, (and pleas in bar and in replevin, are within the rule,) are not to be allowed."

SECTION VIII.

EVIDENCE.

THE nature of the evidence in replevin depends upon the issue. Under a plea of non tenuit or non demisit, the defendant must prove a demise as alleged in the avowry. Evidence of the plaintiff's holding under such circumstances as would warrant the defendant to make a distress, will be sufficient to sustain this issue f. The plaintiff cannot, in this action, give evidence to disprove his landlord's title, even though it be founded in fraud . Proof of payment of rent to the avowant, is primá facie evidence that he is the owner of the land; yet in a case where the plaintiffs did not originally receive the possession of the land from the avowant, it is competent to rebut the title of

a Niblet v. Smith, 4 T. R. 504.

b 2 Saund. 206. a. n. 22. 1 Saund. 103. b. 1 Ch. Pl. 591.

tit. Pleader, 3 K. 20.

Com. Dig.

* Com. Dig. tit. Pleader, 3 K.

Riens in arrière.

Witnesses.

the avowant, by showing that he paid rent under circumstances which did not entitle the avowant to the rent. The plaintiff, who had occupied lands under A., upon A.'s death entered into an agreement to pay rent to the defendant, and pay 1s. as an acknowledgment of his title, being ignorant that it was disputed; it turning out afterwards that the defendant had no claim to the property; held, that the plaintiff might dispute the defendant's title in a plea of non tenuit in replevin ". But where the plaintiff came into occupation under one who had submitted to a distress by the defendant; it was held, that he was thereby estopped from disputing the defendant's title to the rent, though the latter had put in evidence a document which showed that the plaintiff's predecessor occupied under a lease to which the defendant was in law a stranger; for it was not incompatible with that document that there might be a subsequent deed between the occupiers and the defendant; and as payment of rent, or submitting to a distress, was an acknowledgment of tenancy, the plaintiff should at least shew that such acknowledgment was by mistake, or that some other person was entitled to receive the rent.

If issue be joined on the plea of riens in arrière, which admits the title of the defendant, it is incumbent on the plaintiff to prove that no rent is due. Under this plea, the plaintiff cannot shew payment to one who claimed by a superior title, under a threat of distress; such payment should be pleaded specially d

The party under whom the defendant makes cognizance is not an admissible witness for him; but he is a good witness for the plaintiff, though his declarations are not admissible in evidence for him, because he may be examined himself. In replevin, by an under-tenant against a landlord, who, in order to satisfy rent due from his tenant, distrained on the undertenant, and avowed as bailiff of his tenant; held, that the

a

Rogers v. Pitcher, 6 Taunt. 202.
See Fenner v. Duplock, 2 Bing. 16.

с

b Gregory v. Doidge, 3 Bing. 474.

Cooper v. Blandy, 1 Bing. N. C.

43. 4 M. & Scott, 562.

Taylor v. Zamira, 6 Taunt.

524. As to payments of which the plaintiff may avail himself, see ante. e Golding v. Nias, 5 Esp. 274. Hart v. Horn, 2 Camp. 92. Johnson v. Mason, Esp. 89.