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for an avowry is agreed to be in law, in the nature of a count; and, therefore, though the owner of the cattle begins the suit, yet, when the defendant confesses the taking of the goods, and avows, the substantial part of the avowry is, that he made, and that the plaintiff accepted, such a lease from him, under such a rent, whereby, in consequence of law, the cattle upon the land became liable to his distress; that the rent is in arrear, and that he took, and will detain the cattle, till the rent is satisfied. That this differed not from debt for rent, save only, that the one was using the legal remedy, upon the contract, against the person of the lessee, or his representatives; the other against the land itself, out of which the rent issues. That, in the case of an avowry, the real title to justify the taking and detaining the cattle is, that there was a rent reserved upon the lease, and which reservation subjects cattle upon those lands to distress for that rent; and the title or interest out of which the under-lease is derived, is but an inducement; and therefore, there can be no reason to make a difference between the pleading in an action of debt, and in an avowry; for, in both cases, if the lessee quietly enjoys under the demise he has taken, he ought to pay his rent, without prying into the title of his landlord, from whom he received the possession, and under whom he has enjoyed the lands. That great inconveniences would necessarily arise, from establishing a contrary doctrine; for, supposing a lease made for 1000 years, and an under-lease for 500 years, reserving a rent; and 100 or 200 years of the derivative term spent; must the representatives of the person who made the under-lease, and has, for so many years, had the rent paid without dispute, and can produce the under-lease, whereby that rent was reserved, lose his rent, or not dare to distrain for it, if, by any accident in such a length of time, he happens to lose his original lease, or any of the mesne assignments of it?——Again: if a man were to make an avowry upon such a lease, is it reasonable to compel him to lengthen a record in such a manner, as, perhaps, for a very small rent, to be obliged to plead all the assignments, wills, and letters [527] of administration, which have happened in 200 or 300 years; and to lose his remedy, if he has accidentally lost any one of the writings! And, that as the method of conveying estates for long terms of years, and carving lesser terms and interests out of those, had grown so much into use, it seemed absolutely necessary to allow of such pleadings, as in the present case; for, if such general pleading should be rejected, most of the long terms, created for protecting the great estates in England from incumbrances, or for raising portions for younger children, or the limitations made to secure those estates in the family, would prove entirely useless and ineffectual.

On the other side it was contended (T. Carthew), that the plaintiffs, who derived a particular estate to Mr. Tregagle, the grandson, had not shown how that estate commenced; by stating specially, who had the general estate in the land, and who made the lease for 500 years to the grandfather; so as that the defendant, who was a stranger, and, for ought that appeared to the contrary, a purchasor, might have an opportunity of traversing the title of the lessor, or any under whom he claimed; according to the ancient and settled rule of pleading; viz. that in all bars, avowries, conusances, etc. where title is made under a particular estate, be it for years, for life, or in tail, the commencement of such estate must be shewn. For, if it were otherwise, the defendant would be debarred from ever controverting the title of the land; and it would be impossible for him to know what to reply. And, that since the defendant had used all due means to try the title fairly, he ought not to be charged with this rent by a new found way of pleading, contrary to the ancient and established rules of common law; and especially, when he enjoyed but a part of the estate, out of which the rent in question was payable.

After hearing counsel on this writ of error, it was ordered and adjudged, that the judgment should be affirmed; and that the record should be remitted to the Court of Queen's Bench, to the end, execution might he had thereupon, as if no such writ of error had been brought into the House. (Jour. vol. 17. p. 48.)