Of the plea. quently not entitled to judgment for a return, he must then justify and not avow. (a) Property in the defendant, or a stranger. Non cepit. Cepit in alio loco. Though in general, as above stated, a plea merely in justification does not entitle the defendant to a return, yet the plea of property in the defendant himself, or in a stranger, is an exception to this rule. Such a plea disaffirms the plaintiff's right to retain the property, and if found for the defendant, entitles him to a return without an avowry, even where property in a stranger is pleaded, because the defendant is entitled to the possession of the property against every one but the true owner. (b) But where the justification affirms property in the plaintiff, and merely excuses the defendant from damages, the latter cannot have a return, as if a lord distrains for homage, and the tenant dies, and his executor sues replevin; in this case the defendant may justify the taking, and excuse himself from damages, because the distress was rightly taken at first, though in consequence of the death of his tenant, he can no longer detain the distress as a pledge, and cannot therefore be entitled to a return. (c) The plea of non cepit, that the defendant did not take the cattle, &c. as the plaintiff has complained against him, is usually called the general issue in replevin. It only puts in issue the taking of the goods, and if found for the defendant, excuses him from damages, but does not entitle him to a return. If he wants a return he must plead cepit in alio loco, that he took the cattle in some other place (describing it), and traverse the place laid in the declaration, and in order to have a return, he must avow or make cognisance, stating the cause for which he distrained. (d) Where the defendant neither took the goods in the place mentioned in the declaration, nor had them in such place while in his custody, he may plead cepit in alio loco, and entitle himself to a return by adding an avowry, or cognisance, which in this (a) Doctr. Pl. 316. Bull. N. P. 54. (b) Presgrove v. Saunders, 6 Mod. 81. 1 Salk. 5, S. C. Wildman v. North, 2 Lev. 92. 1 Vent. 249, S. C. Gilb. Repl. 184. It was formerly held, that these pleas might be pleaded in abatement. Com. Dig, Pleader, (5 K. 11). Gilb. Repl. 184. (c) Doct. Plac. 316. 186. Gilb. Repl. (d) Johnson v. Wollyer, 1 Str. 507. Anon. 2 Mod. 199. 1 Saund. $47, notes, 5th edit. Com. Dig. Pleader, (3 K. 11). Gilb. Repl. 181. case is not traversable. (a) But if the defendant had the cattle of the plea. in his custody, in the place mentioned in the declaration, but took them in another place, where he was in fact justified in taking them, he must not plead cepit in alio loco generally, which in such case would be found against him (b), but must plead specially, that he took the cattle, &c. in such a place, setting out a right to take them there, and admitting that he had them in his custody in the place stated in the declaration. (c), The plea of cepit in alio loco is properly a plea in bar. (d) The defendant in replevin may plead the statute of limitations, 21 Jac. 1, c. 16, s. 3, by which replevin for taking cattle and goods shall be commenced and sued within six years next after the cause of such action or suit, and not after. The defendant should say actio non accrevit infra sex annos, for where he pleaded not guilty of the taking within six years, the plea was held bad, as giving no answer to the unjust detention. (e) Statute of limitations. The defendant in replevin is allowed by certain statutes to Justifications plead not guilty, or generally that the act complained of was done under authority under the authority of the statute. (f) Where the defendant seeks a return of the goods, he must avow, or make cognisance. of certain statutes. and cognisance. The person who avows or makes cognisance being entitled, if Of the avowry he succeeds, to have a return of the goods, is in the nature of a plaintiff, and therefore, in general, the avowry or cognisance, which is in the place of a declaration, must shew a good title in omnibus, and contain sufficient matter to entitle the party to a return.(g) It must give an answer to every material part of the declaration; thus where the plaintiff alleges, a taking in two places, and the defendant avows as to one only, it is bad on demurrer. (h) An avowant is considered to be within the statute (a) Anon. 1 Ventr. 127. Foot's case, 1 Salk. 93. Bullythorpe v. Turner, Willes, 475. Bull. N. P. 54. (b) Walton v. Kersop, 2 Wils. 354. Mattravers v. Fosset, 3 Wils. 295. (c) Abercrombie v. Parkhurst, 2 B. and P. 480. Bull. N. P. 54. (d) Bullythorpe v. Turner, Willes, 475. (e) Arundal v. Trevill, 1 Sid. 81. 1 Keb. 279, S. C. Gilb. Repl. 182. (f) 43 Eliz. c. 2, s. 19, as to poors' rates; 23 H. 8, c. 5, s. 11, as to sewers' rates; but see ante, p. 622, as to replevin lying where goods are taken under a distress given by act of parliament. See also Anon. T. Jones, 25. (g) Goodman v. Ayling, 1 Brownl. 213. Yelv. 148. Anon. 2 Mod. 199. 1 Saund. 347, b. notes, 5th edit. (h) Weeks v. Speed, 1 Salk. 94. Of the avowry 4 Anne, c. 16, s. 4, and may plead several pleas. An avowry and cognisance. being in the nature of a declaration need not be averred. (a) Where the defendant justifies, and seeks a return in right of another person, he must make cognisance, and not avow, the plea running, that " as bailiff of A. B. he well acknowledges" the taking (b), but if he says that "he well avows," instead of "well acknowledges," it is only matter of form. (c) It is sufficient for the defendant in his cognisance to say generally" as bailiff of A. B." without shewing his authority; and a subsequent agreement of A. B. to the distress is equivalent to a previous command. (d) The fact of the defendant being bailiff is in all cases traversable (e); but one jointenant or coparcener has an authority in law, without any express command, to distrain as bailiff of his cotenant. (f) Tenants in common must avow for their separate portions, and cannot join in an avowry for rent, because it is a demand in the realty (g); but in an avowry for damage feasant, which only concerns the personalty, tenants in common must join. (h) Parceners (i) and jointenants (k) must join in avowry; and if one jointenant or parcener distrains alone, and the replevin is brought against him only, he must avow in his own right, and make cognisance as bailiff to his cotenant, for the entire rent, and not for a moiety only in his own right. (1) An avowry for rent arrear jure uxoris may be by husband and wife, or by the husband alone. (m) As it is necessary, in an avowry, to state a good title in omnibus, it was formerly requisite, in an avowry for rent, to shew (a) Co. Litt. 303, a. 1 Saund. 347, Barnby, 5 T.R. 249. Gilb. Repl. 211. e. notes, 5th edit. (b) Gilb. Repl. 206. (c) Weadon v. Sugg, Cro. Jac. 373. (e) Trevillian v. Pine, 11 Mod. 112. (f) Leigh v. Shepherd, 2 B. and B. 465. 5 B. Moore, 297. (g) Litt. s. 314, 317. Harrison v. (h) Anon. Sir W. Jones, 253. Culley v. Spearman, 2 H. Bl. 386. (i) Stedman v. Bates, 1 Ld. Raym. 64. 1 Salk. 390, S. C. (k) Pullen v. Palmer, Carth. 328. Gilb. Repl. 209. (1) Page v. Stedman, Carth. 364. 1 Salk. 390. Pullen v. Palmer, Carth. 329. Gilb. Repl. 209. Leigh v. Shepherd, 2 B. and B. 465. 5 B. Moore, 297, S. C. (m) Wise v. Bellent, Cro. Jac. 44?. Osborne v. Walleeden, 1 Mod. 275. Gravenor v. Woodhouse, 2 Bingh. 73. For rent arrear. that the defendant, or the person from whom he claimed, was of the avowry seised, the quantity of estate of which he was seised, and that and cognisance. he made a lease to the plaintiff for life or years, or at will, and afterwards, if the defendant was assignee of the reversion, to shew the grant or descent of the reversion to him. (a) So where a termor, who had made an under-lease, avowed for the rent, it was necessary for him to state a seisin in fee, and to shew the creation of the term, and the conveyance of it to himself. (b) To obviate the difficulties imposed upon avowants by this strictness of pleading, it is enacted by statute 11 Geo. 2, c. 19, s. 22 (c), that it shall be lawful for all defendants in replevin, to avow or make cognisance generally, that the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent, during the time wherein the rent distrained for incurred, which rent was then and still remains due, or that the place where the distress was taken, was parcel of such certain tenements held of such honor, lordship, or manor, for which tenements the rent, relief, heriot, or other service distrained for, was at the time of such distress and still remains due, without further setting out the grant, tenure, demise, or title of such landlord or lessor, owner or owners of such manor; and if the plaintiff shall become nonsuit, discontinue or have judgment against him, the defendant shall recover double costs. Notwithstanding this statute, it may still sometimes be proper to insert an avowry at common law, as where the parties agree to distrain, in order to try the title to an estate in an action of replevin; in which case it may perhaps be advisable for the avowant to set forth his title specially, in order to give the plaintiff an opportunity of traversing some particular part of it. (d) Avowries and cognisances for distresses damage feasant, are not within this statute (e), nor avowries for rent charges. (ƒ) The defendant need not state, in his avowry, the exact amount (a) Thomps. Ent. 264. 2 Saund. 284, d. notes, 5th edit. (b) Scilly v. Dally, 2 Salk. 562. 1 Ld. Raym. 331, S. C. 2 Saund. ubi sup. (c) By a former statute, 21 H. 8, c. 19, s. 2, the lord was enabled to avow, without naming any certain person or tenant, which, at common law, was ne cessary. See Co. Litt. 268, b. Com. 188. (d) 2 Saund. 284, d. notes, 5th edit. Of the avowry of rent due, but may recover less than he has stated (a); though and cognisance. the terms of the tenancy, as to the reservation of the rent, &c. being matters of description, must be accurately stated. (b) It is not necessary to aver in the avowry, that the rent is still due and unpaid. (c) For rent arrear. For damage feasant. Where part of the rent has been satisfied, the defendant may either avow for the entire rent (d), or for the part which remains due, but in the latter case the avowry must shew that the residue has been satisfied. (e) There are several cases in which a distress is given by particular statutes, where it did not exist at common law, and in these cases it is in general necessary to avow specially, so as to bring the defendant within those statutes. Thus where cattle fraudulently or clandestinely conveyed away, to prevent the landlord from distraining, have been followed and distrained under statute 11 Geo. 2, c. 19, s. 1, 2, and the tenant brings replevin, the defendant must avow specially under the statute. (f) So where the landlord distrains within six months after the expiration of the tenancy, by virtue of the statute 8 Anne, c. 14, s. 6, 7, and the tenant replevies, the landlord must, in his avowry, shew specially that he took the distress by virtue of the statute. (g) But it is not necessary, in an avowry, under the statute 32 Hen. 8, c. 37, which enables the executors of tenants in fee simple, fee tail, and for life, of rent, services, &c. to distrain for the arrears, to state for what term the tenant held the premises, or the title of the landlord. (h) An avowry or cognisance for a distress damage feasant, not being within the statute 11 Geo. 2, c. 19, the defendant must set forth his title in such avowry or cognisance. It is however sufficient for him, provided he is the owner of the freehold, to state (e) Holt v. Sambach, Cro. Car. 103. Hunt v. Braines, 4 Mod. 402. 1 Saund. 201, a. notes, 5th edit. (ƒ) 2 Saund. 284, a. notes, 5th edit. (g) 2 Saund. 284, c. notes, 5th edit. (h) Meriton v. Gilbee, 8 Taunt. 159. 2 B. Moore, 48, S. C. Martin v. Burton, 1 B. & B. 279, 3-B. Moore, 608. S. C. Lingham v. Warren, 4 B. Moore,412. Staniford v. Sinclair, 2 Bingh. 193. |