any matter of interest or authority, mediately or immediately derived from the plaintiff, or any commandment."

Tender of Arrears.-The same rule holds in this case as in the case of tender of amends for damage feasanta; for if the tenant, before distress, tender on the land the arrears of rent, the taking of the distress becomes wrongful, and the tenant may maintain trespass for the caption: but if the distress has been made, and before impounding the arrears are tendered, then the detainer only is unlawful, and the tenant must bring detinue. But it is incumbent on a party pleading a tender to be accurate in his plea, and to prove a tender to the full amount stated. Hence where defendant pleaded nothing in arrear beyond £16, and pleaded a tender of that sum; proof of a tender of £15: 16s. was holden insufficient, although the latter sum only was proved to be due for rent.

4. Property.

The defendant may plead property in himself, in bar of the action, and this plea may conclude with a prayer for a return and damages. So property in a stranger may be pleaded in barf, and the conclusion of this plea, praying a return, is goods. So it is a good plea to say, that the property is to the plaintiff and to a stranger; and where there are two plaintiffs, that the property is to one of themh.

5. Statutes:

1. Of Limitations.

2. Of Set-off.

1. Stat. of Limitations.-By stat. 21 Jac. 1. c. 16. s. 3, actions of replevin shall be commenced and sued within six years after the cause of action. Hence actio non accrevit infra sex annos is a good plea in bar in replevin.

2. Set-off. There cannot be a set-off in replevin. Avowry for rent arrear [plea, riens in arrear] and issue thereon. Plaintiff had given a notice of set-off', and offered to support

it by evidence at the trial; but Denison, J. rejected it. The court of C. B. were of opinion, that the evidence was properly rejected, observing that this case was neither within the letter nor the intention of the statute. The issue was special, and not general. It was not an action upon a personal contract. The rent savoured of the realty, and the remedy was by distress; replevin, they added, was a mixed action. The judgment, if for the avowant, must be for a return of the cattle. To take the benefit of the statute, plaintiff and defendant must plead properly. In debt on bond, defendant cannot set-off under non est factum or solvit ad diem, but must plead specially. Perhaps by way of special plea to the avowry, plaintiff might have pleaded a mutual debt of more than the rent. There could not have been a set-off by defendant under non cepit, nor could there be for plaintiff under riens in arrear. To an avowry for rent arrears, the tenant pleaded that a certain sum (equal in amount to the rent arrear) was due for ground rent from the avowant to the original landlord; that payment of that sum was demanded of the avowant, who refused to pay the same, whereupon the original landlord demanded payment of the tenant, and threatened to distrain, and that tenant, in order to avoid a distress, paid the ground rent: on demurrer, the plea was holden to be good; Buller, J. observing, that there was a difference between a payment and a set-off; the former might be pleaded to an avowry, though the latter could not. So the tenant may pleadd payment of an annuity secured out of the demised lands previously to the demise to him, for the arrears of which the grantee had threatened to distrain.

IX. Of the Judgment:

1. For the Plaintiff.

2. For the Defendant.

1. For the Plaintiff.-As by the nature of the proceedings in replevin the goods distrained are delivered by the sheriff to the plaintiff; if he recovers, he can have judgment for damages only. If the plaintiff has judgment on a demurrer, the form of entry is, "that the plaintiff do recover his da

b 2 G. 2. c. 22. s. 13.

c Sapsford v. Fletcher, 4 T. R. 511.

d Taylor v. Zamira, 2 Marsh. R. 220.

6 Taunt 524. S. C.

mages, by reason of the premises," whereupon a writ of inquiry is awarded to ascertain the damages, and on return of the inquisition, final judgment is entered for the damages found by the inquisition, and costs de incremento. If the plaintiff obtains a verdict, then the jury, on that verdict, ascertains the damages and costs, and the judgment is, "that the plaintiff do recover against the defendant, the damages assessed by the jurors, and costs de incremento.”

2. For the Defendant.-At the common law, when the merits of a suit in replevin were decided by a verdict for the defendant, or judgment for him on demurrer, or confession by the plaintiff, the judgment for the defendant awarded him a return of the distress irreplevisable. A different rule obtained in the case of a nonsuit, for in that case the defendant was not entitled to this judgment. To remedy the inconvenience which proceeded from the plaintiff, in the case of nonsuits, having several replevins for one and the same cause, it was enacted, by stat. 13 Edw. 1. c. 2, that as soon as the return of the beasts should be adjudged to the distrainor, the sheriff should be commanded by a judicial writ to return the beasts to the distrainor, in which writ is to be inserted a direction to the sheriff not to deliver the beasts without a writ making mention of the judgment given by the justices (29). By this statute, if the plaintiff in replevin be once nonsuited, he cannot have a new replevin, but must sue out a writ according to the directions of the statute. This writ is termed a writ of second deliverance. It is a judicial writ, issuing out of the court of record in which the nonsuit was had (30). The writ of second deliverances, is a supersedeas in law to the sheriff to forbear to execute the writ de retorno habendo

(29) It appears from the words printed in italics, and those which follow them in the statute, viz. quod fieri non poterit nisi per breve quod exeat de rotulis justic' coram quibus deducta fuerit loquela," that the provisions of this statute are confined to those cases where the cause has been removed into the superior court, aud the plaintiff has been nonsuited there. If this be the true construction, it will follow that, so long as the cause remains in the county court, the plaintiff may replevy the distress after nonsuit there, and return made in infinitum, as he might before this statute.

(30) See the form of this writ, Gilb. Repl. Cap. II. S. VII. 4.

(31) obtained on the nonsuit of the plaintiff, if delivered to the sheriff before return is made. If upon the writ of second deliverance, the party replevying makes default a second time for any other cause, the statute has provided, that the distress shall remain irreplevisable for ever.

In the case of a distress for rent arrear, the statute 17 Car. 2. c. 7, has prescribed to the defendant a mode of proceeding in the four following cases:

I. If the plaintiff shall be nonsuit, before issue joined, in any suit of replevin by plaint or writ lawfully removed: The defendant must make a suggestion in nature of an avowry or cognizance for the rent arrear, whereupon the court, upon prayer of the defendant, will award a writ of inquiry touching the sum in arrear at the time of the distress, and the value of the distress. On the return of the inquisition, the defendant will have judgment to recover the rent arrear, if the distress amounts to the value of it; if not, then to recover the value of the distress, with full costs (32).

II. If the plaintiff shall be nonsuit, after cognizance or avowry made, and issue joined: In this case the jurors that are impanelled to inquire of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears and the value of the distress, and thereupon the defendant is entitled to the same judgment as in case I.

III. If, after cognizance or avowry made, and issue joined, the verdict shall be given against the plaintiff: As in the last case, the jurors that are impanelled to inquire of such issue shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the distress (33), and

(31) But not to the writ of inquiry of damages on stat. 21 H. 8. c. 19. Salk. 95. or on stat. 17 Car. 2. c. 7. Ventr. 64. 2 Wils. 117.

(32) For the form of prayer, writ of inquiry, and judgment, where the distress amounts to the value of the rent, see Lilly's Entries, 3d edition, 1758, p. 610. For the form of the judgment where the distress is of less value than the rent, see Tidd's Practical Forms, 1st ed. p. 292. If the plaintiff be nonprossed after defendant has avowed, for want of a plea in bar, it seems unnecessary to add a suggestion, the cause of the distress being sufficiently ascertained by the avowry. See the form of the writ of inquiry in this case, in Tidd's Prac. Forms. 1st ed. p. 163, 164.

(33) It must be observed, that if the jurors give a defective verdict, e. g. if they find the value of the distress, but omit to find the sum of the arrears, this omission cannot be supplied by a writ of

thereupon the defendant is entitled to the same judgment as in case I.

IV. If judgment be given upon demurrer for the avowant or person making the cognizance: In this case the court, at

inquiry; because the statute directs that the jurors, who are impannelled to try the issue, shall inquire concerning the sum of the arrears. Sheape v. Culpepper, 1 Lev. 255. The case of Sheape v. Culpepper was recognised by Lord Hardwicke, C. J., in R. v. Kynaston, B. R. T. 10 G. 2. MS. where it was holden, that the court could not supply a defective verdict, where several traverses had been taken on a return to a mandamus, under the statute 9 Ann. c. 20, and the jury had omitted to find damages and costs for the plaintiff. See also Ca. Temp. Hardw. 297. This point was again moved in Freeman v. Lady Archer, 2 Bl. 763.; and Gould, J., then expressed a doubt, whether a writ of inquiry could be granted to supply a defective verdict for the defendant in the case of an avowry for rent arrear. It appears clearly, from the case of Sheape v. Culpepper, that it cannot. And in a subsequent case, where the jury found a verdict for the avowant, and damages to the amount of the rent claimed in the avowry, but did not find either the amount of the rent in arrear, or the value of the distress, and judgment was entered for the damages assessed; it was holden, that this judgment was erroneous, and could not be amended into a judgment under the statute, because the neglect of such inquiry by the jury could not be in any manner supplied.* Rees v. Morgan, 3 T. R. 349. In cases where the court is not restrained by the express words of the stat. 17 Car. 2. c. 7. s. 2. (which relates to rent arrear only) an inquiry may be granted to supply omissions on the part of the jury at the trial of the replevin. Hence, where the defendant avowed, as overseer of the poor, for a distress for a rate under stat. 43 Eliz. c. 2. and at the trial, the plaintiff was nonsuit, and the jury was discharged without any inquiry of the treble damages given by the 19th section of that statute to defendants in case of a nonsuit after appearance; an application was made to the court that the avowants might have a writ of inquiry awarded to supply this defect, which application, after much debate, was granted. Herbert v. Walters, Ld. Raym. 59. Salk. 205. Carth. 362. S. C. A similar application was made in the case of Valentine v. Fawcett, 2 Str. 1021. Ca. Temp. Hard. 138. where a verdict had been given for the defendant, who had avowed under the same statute 43 Eliz. c. 2. Lord Hardwicke, C. J., (with whom the rest of the court concurred,) was of opinion, that a writ of inquiry ought to be granted, upon the ground, that the words of this section of the statute were sufficient to take in this case, viz. "that defendant shall recover treble damages, to be assessed by the same

But the court in this case permitted the defendant to amend his judgment by entering a common law judgment.