p. 641). If the distress is made by a bailiff or agent on behalf of all, all must join in the avowry and conusance(c). Tenants in common, on the other hand must avow the taking of the distress in respect of their several shares. Thus, if three tenants in common distrain thirty beasts, one of them must avow for ten, the other for ten, and the third for ten more(d). But one of several tenants in common may, as we have seen, distrain and avow for his own share of the rent (ante. p. 642).

769 Pleas in bar to an avowry-Non tenuit-Riens in arrere.-The plaintiff may, by a plea in bar, deny generally all the allegations contained in the avowry(e), unless he is compelled by a judge's order, under the provisions of the Common Law Procedure Act, to traverse separately the tenancy, the fact of the rent being in arrear, or the authority to distrain. The plea of non tenuit is a traverse of the demise stated in the avowry. It alleges that the plaintiff did not hold the said messuage or tenement, land and premises, under the alleged demise thereof in the avowry mentioned. Under this plea it may be shown that the tenure alleged in the avowry was extinguished and put an end to before the time of the distress, either by twenty years' adverse possession under the statute of limitations(f), or by a transfer of the landlord's reversionary estate to an assignee or mortgagee who has demanded the rent(g).

The plea of riens in arrere simply alleges that no part of the rent alleged in the avowry to be in arrear was in arrear. Under this plea payments made to a ground landlord, or other incumbrancer having claims paramount to the claim of the immediate landlord making the distress, may be given in evidence in reduction of the rent, as such payments are always presumed to be authorized by the landlord, he being obliged to protect the tenant from them, and are treated as payments of rent by the tenant(h). But payments which are not a direct charge upon the demised premises cannot be given in evidence in satisfaction and discharge of the rent, unless they were directed of sanctioned by the landlord(i). The meaning of the plea of riens in arrere is, that the plaintiff at the time of the distress was in arrear

(c) Stedman v. Bates, 1, Salk. 389.

(d) Litt. sec. 314–317. Philpott v. Dobbinson, 3 M. & P. 320.

(e) Trent v. Hunt, 9 Exch. 20.

(f) De Beauvoir v. Owen, 5 Exch., 177.

(g) Wheeler v. Branscombe, 5 Q. B. 379.

(k) Jones v. Morris, 3 Exch. 746. As to payments under the Metropolis Management Amendment Act, 1862, 25 & 26 Vict. c. 102, s. 96, see Ryan v. Thompson, L. R., 3 C. P. 144. (2, Davies v. Stacey, 12 Ad. & E. 511.

to nobody; and if he has not paid anybody, he cannot, under this plea, contest the defendant's right to the rent(k).

770 Payment of money into court.-If goods have been taken in closes A and B, and the defendant can justify as to part of the taking in A, but not as to the taking in B, as, for instance, if B was not part of the demised premises, the defendant may give up the case wholly as to B, by paying money into court in respect of the goods there taken, and partially as to A, by paying in respect of those which he does not propose to justify the taking of, and making avowry as to the residue().

771 of the plea of not guilty "by statute" in actions of trespass, or upon the case for an unlawful distress.-By the 11 Geo. 2, c. 19, s. 21, it is enacted, that in all actions of trespass, or upon the case, against persons entitled to rents or services, their bailiffs or other persons, relating to any entry upon premises chargeable with such rents or services, or to any distress or seizure thereupon, it shall be lawful for the defendants to plead the general issue, and give the special matter in evidence, inserting in the margin of the plea the words "by statute"(m). Under the plea of not guily "by statute," therefore, the defendant may give in evidence that he entered the plaintiff's house under a warrant of distress for rent, and was forcibly turned out of possession, and that he thereupon re-entered, and broke open the door of the house, in order to seize the plaintiff's goods. Everything which he might lawfully do in order to make the distress is admissible in evidence under this plea(n). The plea puts in issue not only the matter of justification, but the tenancy and ownership of the goods(0).

A plea of justification of trespass on the ground that the plaintiff had a right to distrain, must show that the plaintiff had such an estate and interest in the premises as would entitle him to distrain(p); or that he had some express authority or license to distrain. The common avowry of a distress for rent does not set out title, because the 11 Geo. 2, c. 19, s. 22, gives a statutory form, and therefore a lawful demise is implied; but that statute is confined to actions of replevin. 772 Pleas justifying an entry upon land for the purpose of distraining goods fraudulently removed, should set forth the fact of the tenancy, of

(k) Wightman, J., Wheeler v. Branscombe, 5 Q. B. 379.

(l) Lambert v. Hepworth, 2 Q. B. 729 ; 3 & 4 Wm. 4, c. 42, s. 21. As to payment into court generally, see post, ch. 21.

(m) Reg. Gen. Hil. Term, 16 Vict. R. 21; 1 Ell. & Bl. App. lxxxiii.

(n) Eagleton v. Gutteridge, 11 M. & W. 469.

(0) Williams v. Jones, 11 Ad. & E. 643; and see post, ch. 21.

(p) Pinhorn v. Souster, 8 Exch. 138.

rent being in arrear, and of the fraudulent removal of the goods by the tenant from the house demised to him by the defendant, in order to prevent the defendant from distraining the goods, and the deposit of the goods in the plaintiff's house, and should then go on to justify the entering the house in order to seize the goods under the provisions and in the mode prescribed by the 11 Geo. 2, c. 19, s. 1(q). 773 Pleas justifying the seizure of animals damage feasant, should set forth the defendant's possession of a close or of land whereon certain cattle of the plaintiff were trespassing and doing damage, and that the defendant thereupon took the cattle by way of a distress for the damage, and drove them to a common pound and there impounded them, and that this act of the defendant is the injury complained of · by the plaintiff in his declaration(r). If the plaintiff's cattle strayed from a high road into a defendant's close, through the defendant's neglect to repair fences, which he was bound by statute or prescription to repair, this must be replied specially by a replication, alleging that the cattle were lawfully using the highway, that it was the duty of the defendant to have fenced against the highway, and that he neglected so to do(s).

774 Plea of a recovery of the goods in an action of replevin.—A plea by the

defendant, setting forth that the plaintiff commenced and prosecuted an action against the defendant in the county court of the district within which the distress was taken, and obtained the judgment of the court for the return of the goods, and has recovered his goods, and damages for the taking and detaining them, is a good plea in bar to an action for an excessive distress, as it shows that the plaintiff has already had his remedy (t).

775 Eridence at the trial-Proof of distress.-In order to establish the fact of a distress having been made by the defendant upon the goods and chattels of the plaintiff, it is not necessary to prove an actual seizure of the plaintiff's goods. If the landlord's agent goes upon the plaintiff's premises, and declares that he has come to distrain for rent, and that nothing shall be removed, this, as we have seen, is evidence of the making of a distress, though no single article is touched by such agent (ante, p. 654). Where a warehouse-keeper or lodging-house keeper refused to let the goods and chattels of his tenant or lodger be removed

(q) See the forms in Norman v. Wescombe, 2 M. & W. 349. Rich v. Woolley, 7 Bing. 651. Bowler v. Nicholson, 12 Ad. & E. 341.

(r) Bond v. Downton, 2 Ad. & E. 26.

(8) Goodwyn v. Chevely, 4 H. & N. 631.

(t) Phillips v. Berryman, 2 Doug. 288; post, ch. 21.

until rent claimed by him to be due was paid, this was held to be evidence of the making of a distress (ante, p. 655). So, where the defendant's broker appeared upon the plaintiff's premises, and said, "Unless you pay me 217. for rent, and three guineas for expenses, I shall take your goods," and the plaintiff paid the money, it was held that it did not lie in the defendant's mouth, after receiving the money, to say there was no distress(u).

776 Proof of no rent being due, and of unlawful and excessive distresses.— If the plaintiff sues the defendant on the statute for distraining when no rent was due, he must prove that he held the land on which the distress was taken as tenant to the defendant, and must in general produce and prove the lease, if he holds under a written demise. If the lease is in the hands of the landlord, he should give the latter notice to produce it; he should then prove the amount of the rent, the period at which it became payable, and that it had been paid to and received by the landlord or his authorized agent, at the time of the levy of the distress. If the plaintiff complains of the wrongful seizure of goods not distrainable, he must prove the nature and character of the goods seized, and that they were privileged from distress (ante, pp. 644, et seq.), and it is for the defendant to show any circumstances rendering the distress in the particular instance lawful, such as that there were no other distrainable goods on the demised premises sufficient to satisfy the rent (ante, p. 645). If the plaintiff complains of an excessive dis. tress, he must prove the tenancy; the amount of rent payable to tho defendant; the value of the goods distrained, and that some actual or special damage has been sustained from the defendant's having distrained and taken an unreasonable quantity of the plaintiff's goods. It is not, as we have seen, for every trifling excess that an action is maintainable for an excessive distress. It must be disproportionate to some considerable extent (ante, p. 657), and must be productive of actual loss or damage to the plaintiff (x).

If the ground of action is that the defendant distrained for more rent than was really due, the plaintiff must prove that he tendered to the defendant the sum really due, with enough to cover the lawful charges of the distress(y); or that the defendant sold the things distrained, and realized by the sale of them more than was sufficient to satisfy the rent really due with the costs of the distress(z). A distress

(u) Hutchins v. Scott. 2 M. & W. 811.

(x) Lucas v. Tarleton, 3 H. & N. 120; 27 Law J., Exch. 246. Piggott v. Birtles, 1 M. & W. 450. (y) Glynn v. Thomas, 11 Exch. 878; 25 Law J., Exch. 125.

(z) Tancred v. Leyland, 16 Q. B. 680.

French v. Phillips, 1 H. & N. 567.

may, as we have seen, be excessive, although the goods when sold may realize less than the rent and expenses(a).

777 Proof of material averments in the declaration.-The statement in a declaration for an unlawful distress of the name of the person to whom the rent distrained for is due, is material, and must be proved as laid(b). But it is not necessary to prove the precise amount of rent alleged in the declaration to be due(c).

778 Proof that the defendant ordered or authorized the distress.—In order to prove that the distress was made by the order or authority of the defendant, the warrant should, if the distress was authorized by warrant in writing, be produced and proved, or a notice to produce it should be given to let in secondary evidence of it; but it is not necessary, as we have seen, to prove the warrant in order to fix the defendant as the author of the unlawful proceeding. His conduct, and acts, and admissions in the matter are evidence against him, although he has clothed his agent with an authority in writing. If he has received the money realized by the distress (ante, p. 677), or has personally interfered with the impounding or sale of the goods, or has ratified and adopted the act of the broker levying the distress, these circumstances are admissible in evidence against him, to show that he ordered or authorized the distress (see ante, p. 676, and post, ch. 20, s. 2). 779 When proof of special damage is necessary.-We have already seen that the 11 Geo. 2, c. 19, s. 19, provides that where a distress has been made for rent justly due, and an irregularity or unlawful act has afterwards been committed by the distrainor or his agents, the distress is not to be deemed unlawful, nor the parties making it trespassers ab initio, but that the party aggrieved by the unlawful act or the irregularity may recover full satisfaction for the special damage he has sustained and no more (ante, p. 664), and that, to enable a tenant to maintain an action against his landlord for an irregularity in selling goods distrained, it must be proved that he has sustained actual damage from the wrongful act, and if no such proof is forthcoming, it is the duty of the judge to direct a verdict for the defendant(d).

780 Proof of waiver of right of action.-A right of action for an unlawful or excessive distress once vested, can only be destroyed by a release under seal, or by the acceptance and receipt of something in satisfaction of the wrong done. A tenant, therefore, does not waive his right

(a) Smith v. Ashforth, ante, p. 657.

(b) Ireland v. Johnson, 1 B. N. C. 166.

(c) Gwinnett v. Phillips, 3 T. R. 643. Sells v. Hoare, 8 Moore, 454.

(d) Rodgers v. Parker, 18 C. B. 112; 25 Law J., C. P. 220. Lucas v. Tarleton, 3 H. & N. 116.