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taking is continued in every place in which the goods are afterwards detained. But under this issue the defendant cannot have a return of the goods, if found for him; it merely protects him from damages. (a) If he would defend on the ground that he never had the goods in the place mentioned, he should plead cepit in alio loco, which is a good plea in bar of the action. This plea does not admit the taking as laid in the declaration ; and therefore the plaintiff must prove such taking, or fail to recover.3
§ 563. Plea of property. If the defendant, besides the plea of non cepit, also pleads property, either in himself or a stranger, and traverses the right of the plaintiff, which he may do with an avowry of the taking, the material inquiry will be as to the property of the plaintiff, which the plaintiff must be prepared to prove, the onus probandi of this issue being on him ; for if the former issue is found for him, but the latter is either not found at all or is found for the defendant, the plaintiff cannot have judgment.4 (6) And where the issue is on the plaintiff's property, his right to the possession, at the time of taking, is also involved in the issue. (C)
§ 564. Avowry. An avowry or cognizance of the taking is ordinarily necessary, whenever the defendant would obtain judg
1 Walton v. Kersop, 2 Wils. 354; Bull. N. P. 54 ; 1 Saund. 347 a, note by Wil. liams; Johnson v. Wollyer, 1 Stra. 507 ; Abercrombie v. Parkhurst, 2 B. & P. 480.
2 Ibid. ; Bullythorpe v. Turner, Willes, 475 ; Anon., 2 Mod. 199 ; Williams v. Welch, 5 Wend. 290 ; Prosser v. Woodward, 21 Wend. 205.
8 People v. Niagara C. P., 2 Wend. 644.
45 Com. Dig. 757, tit. Pleader, K, 12; Presgrave v. Saunders, 1 Salk. 5; Bemus v. Beckman, 3 Wend. 667 ; Sprague v. Kneeland, 12 Wend. 161 ; Rogers v. Arnold, Id. 30 ; Boynton v. Page, 13 Wend. 425 ; Clemson v. Davidson, 5 Binn. 399 ; Seibert v. McHenry, 6 Watts, 301 ; Hunt v. Chambers, 6 Penn. Law Journ. 82; 1 N. J. 620 ; ante, $ 561, n.
6 Redman v. Hendricks, 1 Sandf. S. C. 32; Meritt v. Lyon, 3 Barb. S. C. 110.
(a) So where the pleas are non cepit or special property in the defendant enand non detinet, a judgment for return of titling him to the possession of the goods the goods is bad. Mattson v. Hanisch, (see ante, $ 561, n. a). 5 ml. App. 102. So if an action of re- (c) An officer who holds the goods plevin is defeated solely by reason of its under a valid legal process has such a being prematurely commenced, judgment property in them as will protect him in a for a return of the goods replevied will replevin suit. This is true not only of not be ordered. Martin v. Bayley, 1 those officers who execute the processes Allen (Mass.), 381.
of the courts of the State, e. g., sheriffs (6) Any evidence which tends to dis- and constables, but of marshals, and prove the property of the plaintiff in the others executing the process of the Fed. goods, e. g., proof of title in a stranger, is eral courts. Hannebut v. Cunningham, open to the defendant on such a plea 3 Ill. App. 353. (Schulen berg v. Harriman, 21 Wall. 44),
ment for a return of the goods, thereby making himself an actor in the suit, and obliging himself to make out a good title in all respects. Where the avowry or cognizance is for rent, it admits that the property in the goods was in the plaintiff; but the terms of the contract or tenancy must be precisely stated, and proved as laid, or the variance will be fatal. But it is not necessary to prove that all the rent was due which is alleged; for an allegation of two years' rent in arrear will be supported by proof of one only; the substance of the allegation being, that some rent was in arrear, and not the precise amount.? $ 565. Answer to avowry.
Under the issue of non demisit or non tenuit, which is usually pleaded by the plaintiff, to an avowry for rent in arrear, the defendant must prove a demise, an agreement for one being not sufficient; and the demise proved must be precisely the same as that stated in the avowry. But under this plea the plaintiff ordinarily cannot give in evidence anything which amounts to a plea of nil habuit in tenementis ; for as the tenant is not permitted directly to deny the title of his landlord by plea, he shall not be permitted to do it indirectly, by evidence to the same effect under another issue. But where the defendant's title expired before the rent became due, or the plaintiff came in under another title, and had paid rent to the defendant in ignorance of the defect of his title to demand it, or has been evicted by the lessor, he may show this under the plea of non tenuit.5 Proof of payment of rent to the avowant is always prima facie evidence that the title is in him.
§ 566. Plea of riens en arrere. The plea of riens en arrere admits the demise as laid in the avowry, putting in issue only the fact that nothing is due; if, therefore, as has just been stated, the avowant proves that any rent is due, he will be entitled to
1 Clarke v. Davies, 7 Taunt. 72 ; Brown v. Sayce, 4 Taunt. 320 ; Phillpot v. Dobbinson, 6 Bing. 104; 3 M. & P. 320 ; Cossey v. Diggons, 2 B. & Ald. 546 ; Davies v. Stacey, 12 Ad. & El. 506 ; Tice v. Norton, 4 Wend. 663. See also Jack v. Martin, 14 Wend. 507.
2 Forty v. Imber, 6 East, 434; Cobb v. Bryan, 3 B. & P. 348. 8 Dunk v. Hunter, 5 B. & Ald. 322. 4 Parry v. House, Holt's Cas. 489, and note by the reporter ; Alchorne v. Gomme, 2 Bing. 54 ; Cooper v. Blandy, 1 Bing. N. C. 45. The rule that the tenant shall not deny the title of his landlord applies only where there is a tenancy in fact. Brown v. Dean, 3 Wend. 208.
5 Gravenor v. Woodhouse, 1 Bing. 38 ; England v. Slade, 4 T. R. 682 ; Rogers v. Pitcher, 5 Taunt. 209 ; Fenner v. Duplock, 2 Bing. 10; Duggan v. O'Conner, 1 Hudson & Brooke, 459 ; Hopcraft v. Keys, 9 Bing. 613; Bridges r. Smith, 5 Bing. 411.
6 Johnson v. Mason, 1 Esp. 90, 91 ; Knight v. Bennett, 3 Bing. 361 ; Mann e. Lovejoy, Ry. & M. 355.
recover, though he should fail to prove that all is due which is alleged. Under this issue, the plaintiff nay prove that he has paid the rent in arrear to one who had a superior title, such as a prior mortgagee of the lessor, or a prior grantee of an annuity or rent charge.
§ 567. Distraint as bailiff. The allegation in the cognizance, that the conusor made the distress as bailiff to another, is traversable; but it may be proved by evidence of a subsequent assent to the distress, by the person in whose behalf it was made. If it were made by one of several parceners, joint-tenants, or tenants in common, in behalf of all, no other evidence will be necessary, the title itself giving an authority in law to each one to distrain for all. If the conusor justifies as bailiff of an executor, for rent due to the testator, the plea will be supported by proof of a distress in the name of the testator, and by his previous direction, but made after his death, and afterwards assented to by the executor.6
$ 568. Avowry for damage feasant, Where the avowry is for damage feasant, with a plea of title in the defendant to the locus in quo, which is traversed, the evidence will be the same as under the like plea of title in an action of trespass quare clausum fregit. And in general, whatever right is pleaded, the plea must be maintained by proof of as large a right as is alleged. If a larger right be proved, it will not vitiate; but proof of a more limited right will not suffice. And if an absolute right is pleaded, and the right proved is coupled with a condition or limitation, the plea is not supported; but evidence of an additional right, founded on another and subsequent consideration, will not defeat the plea. If issue is taken on the averment that the cattle distrained were
1 Hill v. Wright, 2 Esp. 669; Cobb v. Bryan, 3 B. & P. 348 ; Bloomer v. Juhel, 8 Wend. 449; Harrison v. Barnby, 5 T. R. 248 ; Waltman v. Allison, 10 Barr, 464.
2 Johnson v. Jones, 9 Ad. & El. 809 ; Pope v. Biggs, 9 B. & C. 245.
3 Taylor v. Zamira, 6 Taunt. 524. And see Stubbs v. Parsons, 3 B. & Ald. 516 ; Carter v. Carter, 5 Bing. 406 ; Dyer v. Bowley, 2 Bing. 94; Alchorne v. Gomme, 2 Bing. 54 ; Sapsford v. Fletcher, 4 T. R. 511.
4 Lamb v. Mills, 4 Mod. 378; Trevilian v. Pine, 11 Mod. 112 ; 1 Saund. 347 C, note (4), by Williams.
Leigh v. Shepherd, 2 B. & B. 465. 6 Whitehead v. Taylor, 10 Ad. & El. 210.
? Bull. N. P. 59, 60, supra, tit. Prescription, $ 544 ; Johnson v. Thoroughgood, Hob. 64; Bushwood v. Pond, Cro. El. 722; Bailiffs of Tewksbury v. Bricknell, i Taunt. 142.
8 Bull. N. P. 59 ; Gray's Case, 5 Co. 79 ; s. c. Cro. El. 405; Lovelace v. Reynolds, Cro. El. 546 ; Brook v. Willett, 2 H. Bl. 224.
levant and couchant, and the evidence is that only part of them were so, the averment is not proved.
§ 569. Tender. A tender, whether of rent or of amends for damage by cattle, if made before the taking, renders the distress unlawful ; and if made after the distress, but before impounding, it renders the detention unlawful. But it must appear that the tender, if not made to the party himself, was made to a person entitled to receive the money in his behalf; for if it was made to one who was not his receiver, but only his bailiff to make the distress, or to his receiver's agent, it is not sufficient. And a tender, even to a receiver, is bad, if the principal be present, for in such case it should have been made to the principal.*
§ 570. Competency of witnesses. The party under whom the defendant makes cognizance as bailiff is not a competent witness for the defendant, for he comes in support of his own title. (a) But he is competent to testify for the plaintiff, and therefore the plaintiff cannot give in evidence his declarations. And if distinct cognizances are made for the same goods, under different parties, not connected in interest, but one of the cognizances is abandoned at the trial, the party under whom it was made is thereby rendered a stranger to the suit, and, therefore, a competent witness.? A commoner, who claims by the same custom as the plaintiff, is not a competent witness in support of the custom ; but, where the plaintiff claims by prescription, a person claiming under a like prescription is still competent to testify for the plaintiff; for his interest at most is in the question only, and not in the subject-matter or event of the suit.8
1 Bull. N. P. 299 ; 2 Roll, Abr. 706, pl. 41 ; 1 Saund. 346 d, note by Williams. 2 The Six Carpenters' Case, 8 Co. 146 ; Pilkington's Case, 5 Co. 76.
3 Pilkington's Case, Co. 76 ; Pimm v. Grevill, 6 Esp. 95 ; Browne v. Powell, 4 Bing. 230.
• Gilbert on Replevin, p. 63 ; Pilkington v. Hastings, Cro. El. 813.
7 King v. Baker, 2 Ad. & El. 333. But a mere offer to abandon is not sufficient to render the witness competent. Girdlestone v. McGowran, 1 Car. & Kir. 702.
8 Ante, vol. i. $$ 389, 405.
(a) Where several actions of replevin witness cannot be required, before calling are tried together by order of the court, him, to substitute a new surety in his a surety in one of the replevin bonds is a place on the replevin bond. Kimball v. competent witness to testify in those cases Thompson, 4 Cush. (Mass.) 441. Parties in which he is not interested, in the same and interested persons are now almost, if manner as if the actions had been sepa- not quite, universally competent. rately tried ; and the party offering such
§ 571. Plaintiff's case. In an action for seduction, (a) the plaintiff must be prepared to prove, (1) that the person seduced was his servant; and (2) the fact of seduction : both these points being put in issue by the plea of not guilty.? (6)
1 For the evidence of an action for criminal conversation with the plaintiff's wife, see supra, tit. Adultery, and tit. Marriage.
2 Holloway v. Abeli, 7 C. & P. 528. It has been disputed, whether this action should be in the form of trespass or case.; but it is now settled, that it may well be brought in either form. Chamberlain v. Hazlewood, 5 M. & W. 515 ; 3 Jur. 1079 ; s. c. 7 Dowl. P. C. 816 ; Parker v. Bailey, 4 D. & R. 215. Sce supra, tit. Case, $ 226; Moran v. Dawes, 4 Cowen, 412 ; Parker v. Elliott, 6 Munf. 587. The form of the declaration in case is as follows : "For that the said (defendant)
-and on divers days and times after that day, and before the commencement of this suit, debauched and carnally knew one E. F., she then being the (daughter and] servant of the plaintiff ; whereby the said E. F. became sick and pregnant with child, and so continued for a long time, to wit, until the
when she was deliv. ered of the child of which she was so pregnant; by means of all which the said E. F. was unable to perform the business of the plaintiff, being her (father and) master aforesaid, from the day first aforesaid hitherto, and the plaintiff has wholly lost her service and been put to great expenses for her delivery, cure, and nursing. To the damage," &c.
The form in trespass is thus : “For that the said (defendant) on — and on divers days and times after that day and before the commencement of this suit, with force and arms assaulted one E. F., she then being the («laughter and) servant of the plaintiff, and then debauched and carnally knew the said E. F., whereby (here proceed as in the preceding form, to the end, concluding thus) and other wrongs to the plaintiff the said (defendant), then and there did, against the peace. To the damage,” &c.
Where the injury was done in the house of the father or master, the remedy may be pursued in trespass quare clausum fregit, the seduction being laid in aggravation of the wrong. i Chitty on Plead. 128.
(a) The statutes of the various States seduction under a promise of marriage, are on this and kindred subjects are very made crimes and prosecuted by the State. numerous, and are intended to give more State v. Dunn, 53 Iowa, 743; N. Y. ample redress to the injured party or to Laws 1840, c. 111 ; Boyce v. People, 55 punish the wrong as a crime. Thus in N. Y. 644; Wood v. State, 48 Ga. 192. some States the allegation of loss of service, (b) “The defendant, by limiting his which is a material allegation in the com- pleading to the general issue, will, as it mon-law action on the case, is made un- seems, be held to admit that the relation. necessary by statute. Va. Code, c. 145, ship of master and servant subsisted as $ 1. Michigan Comp. L. 1871, § 6175. alleged in the declaration (Torrence v. Kentucky Rev. Stats. c. 1, § 2. Again, Gibbens, 5 Q. B. 297 ; 8. c. 1 D. & Mer. in Indiana, an action for seduction is 226, overruling Holloway v. Abell, 7 C. given by statute to the seduced woman & P. 528); but still the plaintiff will be herself. In such an action of course the bound under that plea to establish not averments of the relation of master and only the fact of seduction, but the conseservant and of loss of service are imma- quent loss of service, without proof of terial. 2 Ind. Rev. St. (1876) p. 43 ; which the action cannot be maintained Smith v. Yaryan, 69 Ind. 445 ; Buckles (Eager v. Grimwood, 1 Ex. 61 ; Davies v. v. Ellers, 72 Ind. 220.
Williams, 10 Q. B. 725.” Taylor's Evi. In many of the States, seduction, and dence, 285).