case RICCARDS against CORNEFORTH in replevin if the defendant avow the take on  the September as a distress for two year and a half rend in arrear at the  Michaelmas ensue the judgement be erroneous for the distress be for half a  year rend more than be due but he may have abate his own avowry for the half  ear before judgement and have judgement for the residue S c salk S c Com Rep S  c ld ray comb Carth Mod Writ of error upon a judgement in the common plea for  take several cattle in the declaration mention on the twentysixth day of  September in the seven year of William the three in the parish of Enfield  modern the defendant make cognizance as bailiff to Ralph earl of Montague and  Elizabeth his wife and set forth that the duke of Albemarle be seize in fee of  the land in which c and be so seize demise the same to John Bathurst for  twentyone year under the yearly rend of one hundred and forty pound Payable at  ladyday and Michaelmas that the duke be so seize of the reversion do on the  fourteenth day of July in the year make his will and devise the reversion to  the duchess that the duke die and that the earl have since marry the duchess  et because three hundred and fifty pound de To give back prd super dimission  pillage superius reserve pro dvobus year et dimid One striving post death  pillage leader limit ad holiday S mich modern er p arch ult past the same Rado  comit Montague et elizabethae wife he tempore quo c aretro to be et insolut  idem the defendant ut ballivus pillage Radi conit Montague et elizabethae wife  he pro pillage three hundred and fifty pound de return pillage make cognizance  the plaintiff plead in bar and say that before the duke make his will be  execute a lease and release of these land to the earl of bath in tail and  traverse that the duke die seize upon which they be at issue and the defendant  have a verdict the error assign be that the declaration be of Hilary term in  the seven year of William the three which be in the year and the avowry and  plead be of the same term and the take be lie to be twentysixth September in  the seven year of William the three which be likewise in the year that the  defendant justify the take because three hundred and fifty pound rend be in  arrear for two year and a half limit ad holiday S mich arch ult past which  must be Michaelmas and that Michaelmas rend be not due at the time of the take  the cattle which be on the twentysixth of September so that the defendant have  avow for half a year rend after the distress be take and for this reason the  judgement be erroneous but on the other side several authority be cite to  prove that so much certainty be not require in a avowry as in a declaration  for though a avowry be in some sort a declaration yet it be not so in omnibus  for the avowant be a defendant and the law allow he more favour than a  plaintiff in a action who be to make out a title to the thing in demand and  therefore his declaration must be certain in declaration there can be but one  point in issue but in a avowry there may be two as for rend upon two demise  and if one be find for the avowant he shall have a return habend modern if the  avowant be not entitle to the whole rend for which he distrain yet he shall  have a return for so much as be in arrear it be true the book say more in the  that resolution in the case of Battey v Trevilian a that the quantity of the  rend must be agree in the plead and then if a dispute happen how much be in  arrear and the defendant avow for more than be due he shall have a return so  where the defendant avow for a rend Howell v Samback hob b and a nomin pnae  for nonpayment of it but lie no actual demand of the rend the avowry be  adjudge ill for the penalty because it can not be forfeit without a actual  demand of the rend but the plaintiff in replevin have a return brown v Dunnery  hob c for he have good cause to distrain for his rend in the case of goodman v  AylingYelv d the court make a distinction between a replevin and a trespass it  be a action of trespass for enter his house and take a chafingdish the  defendant plead that the house be parcel of a halfyard land hold of the earl  of Northumberland as of his manor of W by homage fealty incertain escuage suit  of court enclose of the park with pale and a pound of cummin rend and justify  his entry and take for the rend the plaintiff reply that it be hold of another  lord and traverse that it be hold of the earl modus et form the jury find that  it be hold of the earl as of his manor of p which be not the name set forth in  the avowry by homage fealty enclose of the park and the rend of a pound of  cummin et non aliter here the verdict do in no sort agree with the plea in the  tenure yet judgement be give for the defendant and the reason be because it be  a action of trespass in which the substance of the matter in question be find  and which be sufficient to excuse the trespass videlicet the take for the rend  and that the house be hold of the earl and though it be say in that case that  it will have be otherwise in a avowry for the avowant ought to make out a  title in omnibus because the plaintiff in replevin be to have a return cro  Elizabeth e yet that be not a authority against the case at bar but agree with  it for this avowant have demand but one thing which be rend and which be find  to be due though not so much as mention in the declaration and the true reason  why a avowant for service must make out a title to all be because if it be  find for he it will be a perpetual charge upon the tenant but in a avowry for  several sum of money due for rend it be modern er p sufficient if the  substance be find videlicet that rend be in arrear though not so much as in  demand modern it have be object that if a man distrain for rend due at several  day yearbook Henry pl a which distress be rescue and in a action of rescous  bring it appear by his own show that one rend be pass but the other be not at  the time of the distress take and a verdict for the plaintiff and damage  entire the plaintiff shall never have judgement for the damage he sustain by  rescue those cattle from he which he have take for rend before it be due so in  assumpsit if two breach be assign and one be ill assign and a verdict for the  plaintiff and damage entire he shall never recover because damage be intend as  well for the breach which be ill assign as for the other which be well from  whence they will infer that in replevin as this case be because the defendant  have avow for more rend than be due and damage entire the judgement ought to  be reverse but damage in a avowry be not give in respect of the rend for which  the distress be make but for take the cattle and be give to the defendant by  the statute Henry c in such manner as the plaintiff shall have if he have  recover which must be for take the cattle and not otherwise and so shall not  vitiate this judgement it be likewise object that by the judgement in replevin  the return ought to be irreplevisable so the defendant have distrain more than  will satisfy the rend real due at the time of the distress take shall retain  the surplus by virtue of this judgement for rend which be not then due but it  be answer that if the value of the cattle be less than the rend real due that  will be a sufficient answer to this objection the cattle now take be of the  value of forty pound and no more and the rend then due be two hundred and  forty pound but the court reverse the judgement principal for this reason and  say that the avowry quoad the last half year rend shall have be abate because  it be not due till three day after the distress make and for which the  defendant avow but see term Rep c now by the judgement in this action the  verdict be for the defendant the cattle take by he be for ever afterward  irreplevisable for two year rend and a half when upon tender of the two year  rend the man shall have his cattle again which be keep for such rend for which  they be not modern take for it be due after the distress judgement reverse  nisi but it appear to be the mistake of the attorney the avowry be afterward  amend in the court of common plea S c comy and the roll alter accord in the  court of king bench S c salk and upon these amendment the judgement be affirm  S c ld ray d