disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass before action brought," is confined to actions of trespass, and does not extend to replevinTM. Avowry, &c. for Rent Arrear.-At the common law, it was necessary for a termor in an avowry for rent due from his tenant, to shew out of what estate, and in what manner the term was derived, because particular estates being created by agreement of the parties out of the primitive estate, it was the office of the court to judge, whether the primitive estate and agreement were sufficient to produce the particular estate". To obviate the difficulties which the avowant for rent arrear had to encounter in setting forth long and intricate titles, it was enacted by stat. 11 Geo. 2. c. 19. s. 22. that defendants in replevin might avow or make cognisance generally, that the plaintiff in replevin, or other tenant of the lands, whereon the 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 holden of such honour, 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 (27). This statute does not extend to a rent charge. Evidence that plaintiff held under an agreement for a lease, (where rent has not been paid) will not support an avowry or cognisance under this statute, viz. that plaintiff held by virtue of a demise; for there is not any demise either express or implied. The sum stated in the avowry or cognisance to be due for rent is not material; for if it appears that less rent is due than defendant has avowed or made cognisance for, yet is he entitled to recover for so much as is due. m Allen v. Bayley, Lutw. 1596. n Scilly v. Dally, Salk. 562. Carth. 445 Ld. Raym. 331. S. C. Reynolds V horpe, Str. 796. • Bulpit v. Clarke, i Bos, & Pul. N. R. 56. p Hegan v. Johnson, 2 Taunt. 148.4 q Said by Lord Ellenborough, C. J. in Forty v. Imber, 6 East, 437. to be. the constant practice. (27) Nil habuit in tenementis cannot be pleaded in bar to an avowry for rent arrear under this statute. Syllivan v. Stradling, 2 Wils. 208. But see post, Taylor V. Zamira. 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. If the defendant avow for so much rent arrear", part whereof is not due at the time of the distress, and enters judgment for the whole, it will be error; but it may be cured before judgment, by abating the avowry as to the part not as yet due (28). Money may be paid into court on an avowry for rent arrear*. A rent is granted to A. for a term of years, with a clause in the deed, that A. and his heirs may distrain for the rent during the term: A. dies; the executor shall have the rent and distrain for it, and not the heir'. One joint tenant may distrain for the whole rent, but he ought to avow for part only in his own right, and for the residue he ought to make cognisance as bailiff to his companion. Parceners must join in an avowry for rent arrear1. A. and B. were tenants in common in fee of land; A. granted a lease for years of his moiety to C. reserving a rent; C. assigned the lease to B.; it was holden, that A. might distrain upon B. for rent arrear, and avow for taking the distress in any part of the land, An avowry, justifying the taking a distress for rent arrear for a ready-furnished lodging, is good; it having been holden, that a landlord is entitled to distrain for the rent of ready-furnished lodgings". Pleas in bar. Eviction.-To an avowry for rent arrear, the plaintiff may plead in bar an eviction or expulsion; for that occasions a suspension of the rent. But care must be taken, that an absolute eviction is stated in the plea, or at least such facts as amount in law to an eviction; for where, to an avowry for rent arrear for a dwelling-house, the Hunt v. Braines, 4 Mod. 402. Holt v. Sambach, Cro. Car. 104. t Johnson v. Baines, 12 Mod. 84. u Richards v. Cornforth, Salk. 580. x Vernon v. Wynne, 1 H. Bl. 24. y Darrel v. Wilson, Cro. Eliz. 644. z 5 Mod. 73. 12 Mod 96. a Stedman v. Bates, Ld. Raym. 64. d Hunt v. Cope, Cowp. 242. (28) See 1 Williams's Saunders, 285. n. 6. 8. and Harrison v. Barnby, 5 T. R. 248. plaintiff pleaded, that the defendant pulled down a summer-house, part of the premises, whereby the plaintiff was deprived of the use thereof; it was holden, that the plea was insufficient, because it stated merely a trespass, and not an eviction. Non dimisit. Non tenuit.-The most usual pleas in bar to an avowry for rent arrear are, 1. Non dimisit, that is, that the avowant did not demise; 2. Non tenuit modo et formâ, or that the plaintiff did not hold the land in manner and form, &c. When issue is joined on the non tenuit modo et formâ, the defendant is not holden to strict proof as to the identical time during which he alleges the tenant to have holden and enjoyed the land, &c. demised. Hence, where the defendant made cognisance for two years and a quarter's rent in arrear, and alleged, that for a long time, to wit, for two years and a quarter, ending on the 25th December, 1803, the plaintiff held and enjoyed the property demised, to which the plaintiff pleaded non tenuit modo et formâ, and issue was joined thereon; proof that the plaintiff held and enjoyed from the 23d of December, 1801, was adjudged sufficient to entitle defendant to a verdict for two years' rent. Riens in Arrear.-Riens in arrear, or no rent in arrear, may be pleaded in bar to this avowry; but such plea ought to conclude to the country; for where de injuria suâ propria absque hoc quod redditus fuit in aretro was pleaded to a cognisance for rent arrear; it was holdenf ill on special demurrer, as putting the defendant to an unnecessary replication. This plea admits the holding to be as stated in the avowry; hence if the avowry state that the plaintiff held the premises under a rent reserved quarterly, under the issue riens in arrear, the plaintiff will not be permitted to shew that he held, under a rent reserved half yearly. A general plea of de injuriâ suâ propriâ absque tali causâ to an avowry or a cognisance for rent arrear will be bad, on special demurrer; for this general plea can be pleaded only where the defendant's plea rests merely upon matter of excuse, and not upon any matter of interest or authority, mediately or immediately derived from the plaintiff, or any commandment." e Forty v. Imber, 6 East, 434. f Horn v. Lewin, Salk. 583. g Hill v. Wright, 2 Esp. N. P. C. 670. h Jones v. Kitchen, 1 Bos, & Pul. 76. i Crogate's case, 8 Rep 66. b. Doct. ph 114, 115. Tender of Arrears.-The same rule holds in this case as in the case of tender of amends for damage feasant; 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. 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 bar", and the conclusion of this plea, praying a return, is good. 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 them". 5. Statutes: 1. Of Limitations. 1. Stat. of Limitations.-By stat. 32 H. 8. c. 2. s. 3. "No person shall make any avowry or cognisance for any rent, suit, or service, and allege any seisin of any rent, &c. in the same avowry or cognisance in the possession of his ancestor, or in his own possession, or in the possession of any other, whose estate he shall pretend or claim to have above fifty years next before making the avowry or cognisance." This statute extends to such cases only, where the avowant was compelled to allege a seisin by force of some ancient statute of limitations, and consequently it does not render an allegation of seisin within the limited time necessary in those cases, where seisin was not required to be alleged before the statute, as in the case of a reservation or grant of a rent, where the title is founded on the deed. k 2 Inst. 107. 1 Wildman v. Norton, 1 Ventr. 249. m Presgrave v. Saunders, 1 Salk. 5. Butcher v. Porter, Carth. 243. o Parker v. Mellor, Lord Raym. 21. and Carth. 398. p 1 Inst. 145. b. q Foster's case, 9 Rep. 64. b. Fealty, homage, and such casual services, are not within this statute'. 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--Avowry for rent arrear [plea, riens in arrear] and issue thereon. Plaintiff had given a notice of set-offs, 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 defendants under non cepit, nor could there be for plaintiff under riens in arrear. To an avowry for rent arrear", 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 plead payment of an annuity secured out of the lands demised previously to the demise to him, for the arrears of which the grantee had threatened to distrain. x r Bennet v. King, 3 Lev. 21. s Absalom v. Knight, Barnes, 450. 4to. ed. Bull. N. P. 181. S. C. t 2 G. 2. c. 22. s. 13. u Sapsford v. Fletcher, 4 T. R. 511. |