
    Joseph M. Lander, v. Francis A. Ware.
    The subsequent recovery of a judgment for rent due, will not prejudice the defence of an avowant in an action of replevin. It is sufficient to justify the taking1, by averring1 rent to have been doe at the time the distress was made.
    In replevin, the plaintiff may recover vindictive damages, as in the action of trespass; Vide, Blain and Green, ads Hilson, M. S. 1830; 2 Rice’s Digest, 249.
    If it is intended to charge the avowant in replevin, with damages, for such tortious proceeding under the distress, as makes him a trespasser ab initio, it is necessary that such matter be pleaded specially, as in the action of trespass.
    Tried before Mr. Justice Frost, at Fairfield, Spring Term, 1846.
    This was an action of Replevin.
    The defendant, by his avowry, admitted the taking of certain goods of the plaintiff, as a distress tor the amount of a year’s rent, which was then due, but not alleged to be still due. Issue was joined on the allegation that the rent was due at the time of the distress. It was proved, that a year’s rent was then due by the plaintiff to the avowant; but after the distress, the avow-ant had recovered a decree on summary process for the amount of the rent. The plaintiff offered some proof that the distress was excessive, &c. Evidence was also offered affecting the plaintiff’s claim for damages, which it is unnecessary to report. The jury were instructed, by the presiding Judge, that the claim for rent was merged in the decree, and that the avowant could not recover it again in this action—that the action of replevin was in the nature of an action of trespass, and the avowry, of a plea of justification—that they should, therefore, give a verdict for the defendant, if they found the rent to have been due when the distress was made; and farther, that as the plaintiff had not, by his pleading, put in issue the regularity of the distress, the case should be decided by the proof of rent in arrear, at the time of the distress.
    The jury found a verdict for the defendant, and the plaintiff appealed and moved for a new trial, because his Honor charged the jury as above stated.
    Buchanan, for the motion.
   Frost J.

delivered the opinion of the Court.

For an illegal distress, the party injured may have a remedy either by trespass or replevin. If trespass be brought, and the defendant justifies under a distress, and the plaintiff relies on any irregularity, whereby the defendant is made a trespasser ab initio, he must specially plead it. Bagshaw v. Gavard, Yell, 96; Gargrave v. Smith, 1 Salk. 221. If replevin is brought, the defendant either denies the taking under the general issue, non cepit, or justifies and avows the taking of the goods for rent in arrear. If he claims a judgment for rent and a return of the goods, he must aver not only that the rent was due at the time of the distress, but also that it still remains due. But when, by payment of the rent or other matter arising since the distress, he is not entitled to judgment for the rent and a return of the goods, it is sufficient to justify the taking by averring rent to have been due at the time the distress was made. Bull N. P. 54. In Blain & Green, ads Hilson, M. S. 1830, 2 Rice’s Digest, 249, it was ruled. that in replevin the plaintiff may recover vindicative damages, as in an action of trespass. This case is supported by Hopkins v. Hopkins, 10 J. R. 371, and by a long practice in our Courts, in conformity with it—and, besides, it advances justice by preventing the circuity of action that must ensue if the landlord might recover judgment for the return of the goods, as having been taken for a lawful distress; and the tenant put to an action of trespass to recover damages for a conversion or injury of the same goods, or other abuse of the license to enter and distrain, which would make the landlord a trespasser ab initio. But when the action of trespass is thus grafted on the action of replevin, it is necessary that the rules of pleading, which obtain in trespass, should accompany it. If the plaintiff in replevin, denies only the legality of the distress, he may plead to the avowry, non demisit, rien in arrear, or eviction, which are pleas proper to replevin. But if it is intended to charge the avowant with damages for such tortious proceeding under the distress, as makes him a trespasser ab initio, it is necessary that the plaintiff plead such matter specially, as in an action of trespass. The issue of rent in arrear, at the time of the distress, does not apprise the avowant of any objection to the regularity of the distress; and to give judgment for the plaintiff, on proof of an excessive levy, would subject the avowant to surprise and injustice.

The recovery of judgment by the avowant for the rent cannot prejudice his defence more then payment; and it is clear that a subsequent payment cannot make a distress illegal.

The motion is refused,  