fendant's custody, as the wrong continues wherever the defendant has them a. in quo. The place of taking, as well as the vill or parish, are material and The locus traversable, and must be stated in the declaration, or it will be demurrable. If the close in which the cattle were taken has no name, it may be described by abuttals as being in the occupation of a particular individual. The defect, however, may be cured by the defendant's pleading over, or by verdict d. The precise day The day. is not material. The plaintiff may declare for several takings, part at one day and place, and part at another day and place. If several cattle be taken, some in one place, and some in another, the declaration should shew how many were taken in each e. The description and number of the cattle or goods Description taken should be stated with certainty, though the same strictness is not now required as formerly. There should, however, be more accuracy in the description in this species of action, than in trespass, as the subsequent judgment of retorno habendo must depend on the number and description of the goods taken; a declaration for taking divers "goods and chattels" of the plaintiff, without specification or enumeration, has been held bad for uncertainty; and though there was judgment by default, and a writ of enquiry had been executed, the defect was held not to be cured by the statute of geofails . of the goods. SECTION V. THE PLEADINGS. 1. Abatement. 1.-Abatement.] THERE is a distinction between pleas in abatement, in replevin, and in other actions; for in other actions a Walton v. Kersop, 2 Wils. 354. Reade v. Hawke, Hob. 16. Ward v. Savile, Cro. Eliz. 896. 1 Saund. 347. n. 1. c Potters v. Bradley, 2 M. & P. 78. If replevin be brought in an inferior court the place of the caption must be alleged to be within the jurisdiction of the court. Quarles v. d Id. e F. N. B. 68. f Com. Dig. Plead. 3 K. h Pope v. Tillman, 7 Taunt. 642. Non cepit. a plea in abatement goes merely to the form of the writ, but in replevin the deliverance of the goods is usually immediate, so that the plaintiff has possession before the defendant can plead thereto; therefore a plea in abatement must give the defendant a title to the return of the beasts; for it is not enough to quash the writ, as in other cases where the defendant is in statu quo, when the writ is quashed. Pleas in abatement, therefore, in this suit, partake of the nature of pleas in bar; indeed it is laid down by high authority, that they differ from pleas in bar only in this; that in abatement they do not avow or acknowledge the caption or detention, which is the gist of the action, but they must go to entitle the defendant to a delivery, or else they do not take away the force and effect of the writ of replevin, which is always executed by the delivery a. If there be a plea in abatement, and in order to obtain a return of the beasts, an avowry or cognizance be stated, with the cause for distraining alleged, the avowry cannot be traversed". Pleas of property and cepit, in alio loco, are instances of pleas in abatement. Where plaintiff in replevin took husband after the plaint, but before the removal thereof by re. fa. lo.; it was held that the defendant might plead her coverture in abatement, though he removed the plaint by re. fa. lo.c 2.-Non cepit and cepit in alio loco.] The plea of non cepit is the general issue in this action, by which the defendant puts in issue, not only the taking, but also the taking in the place alleged in the declaration. If it appear, however, that he had the goods in his custody, in the place alleged in the declaration, the plaintiff will be entitled to a verdict on this plea ". If the defendant had possession of the cattle, in the place mentioned in the declaration, only whilst he was taking them to the pound, he should plead that fact specially, he cannot avail himself of it, under a plea of non cepit. In case of distresses made under some statutes, as for poor's rates by the 43rd Elizabeth, Gilbert's Rep. 162. son's Rep. 46. Wilkin b Foot's case, Salk. 93. Willes, 475. Bac. Ab. tit. Rep. Woodf. L. & T. 713. Hollis v. Freer, 2 Bing. N. C. 719. 2 Hodges, 5. d Walton v. Kersop, 2 Wils. 354. Abercrombie v. Parkhurst, 2 B. & P. 480. 1 Saund. 387. c. 2. s. 19, or for the sewer's rate by 23rd Henry VIII. c. 5. s. 10, the defendant in replevin may plead not guilty a, and give the special matter in evidence. alio loco If under a plea of non cepit, the defendant proves the taking Cepit in the goods in another place, the plaintiff will be nonsuited b; but the defendant cannot have a return of the goods under this plea; to effect that object he should plead that he took the goods in another place, describing it, and traverse the place laid in the declaration, and avow or make cognizance, shewing his right to take the goods, as in a plea in abatement c. between avowry and 1. Of the nature of an avowry and cognizance.] THE pleadings which principally occur in replevin are avowry and cognizance. The distinction between which is this; where the action is against the principal or landlord he makes avowry,—that is, he Distinction avows taking the distress in his own right; where, on the other hand, it is against the bailiff or servant he makes cognizance,— cognizance. that is, he acknowledges the taking in the right of the principal or landlord; and where it is against both, the one avows and the other makes cognizanced. An avowry or cognizance is in the nature of a declaration; it sets forth the merits of the defendant's case, and shews that the distress was lawful. As the object of the avowry is to obtain a return of the goods, the defendant should state sufficient matter to entitle him to such return. Greater strictness is required in some cases, in stating title in an avowry than in a declaration e. In all cases, except where the defendant claims property in the goods, he must avow in order to entitle himself to a return. A party in justify a 1 Saund. 347. c. b Johnson v. Woolyer, 1 Stra. 507. c See 1 Saund. 247. e Id. 53. It is sufficient to avow the rally. ing a distress, may allege a different cause from that which he assigned on making it, if he can shew a legal justification for what he did, it is sufficient. Thus he may distrain for rent, and avow for heriot service a. 2.-Avowry and cognizance for rent.] At common law it was necessary to shew in an avowry or cognizance for rent, the quantity and commencement of the estate of the defendant, and other particulars respecting title, which was productive of much inconvenience, to remedy which it was enacted by stat. 11 Geo. II. c. 19. s. 22," that defendants in replevin might avow or make cognizance generally, that the plaintiff in replevin, or defendant's other tenant of the lands, whereon the distress was made, title geneenjoyed the same under a grant or demise at such a certain rent during the time wherein the rent distrained for accrued, 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." Rents, reliefs, heriots, or other services are expressly mentioned, in the statute, and it has been construed to extend to furnished lodgings b. But a rent-charge is not within this enactment ; nor is a heriot custom; the avowry therein, therefore, must allege seisin of the lord, &c. d An avowry being in the nature of a declaration, it is sufficient if it be certain to a common intent; it should, however, shew with certainty the place, day, and number of cattle taken. Although a landlord may avow generally for rent in arrear, yet the terms of the contract under which the tenant holds must be truly stated in the avowry *. So the terms of the tenancy as to the amount of the reserved rent, and times of payment, must be correctly described. Where the defendant avowed on a contract for 1107. rent, and proved a demise at 15s. an acre, amounting to 111., it was held to be a fatal variance. for more or fewer pre the defend ant held in not be fatal. An avowry for rent need not allege in precise terms that the plaintiff was tenant to the avowant; it is sufficient if the fact of the tenancy can be collected from the whole of the avowry b. But it will not be a fatal variance if the avowry state that the An avowry defendant held more premises than he did hold in fact. Where the defendant avowed for rent in arrear for a dwelling-house mises than with the appurtenances, and it appeared in evidence that the plaintiff merely occupied the upper part of the house, and that the shop and yard were in the occupation of other tenants; held, to be no variance . Nor is it a fatal variance if the avowry allege a holding of fewer premises. Where in replevin for illegally distraining plaintiff's growing corn in four closes, the defendants avowed the distress for rent in arrear, averring that plaintiff held the closes in which, &c., at and under a certain yearly rent; to which the plaintiff pleaded that he did not hold in manner and form as alleged; upon proof that the plaintiff held the four closes and two others at the rent stated in the avowry; held, no variance. It is not necessary to aver that the rent still remains due ; nor will it be a fatal variance if more rent be avowed for than is proved to be due; for if the defendant avow for more than is due he will be entitled to recover as much as he can prove to be due, as if he avow for two years and a quarter rent, and shew that two years rent are due, he will recover the latter sum f. e or more persons have a title. Where one is not sole seised, or has not sole title to the Where two entire rent, he cannot avow alone; therefore parceners must join in avowry or cognizance for rent, for they make but one heir, and the rent is an entire inheritance %. An avowry by |