Cossey against Diggons
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1819 |
| Date | 10 May 1819 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 465
IN THE COURT OF KING'S BENCH.
cossey against diggons. Monday, May 10th, 1819. Where an avowry stated that the defendant held the premises at a certain yearly rent, to wit, the yearly rent of 721. and the plaintiff pleaded, 1st, non tenuit, and, 2dly, riens in arrear; and the first plea was found for the plaintiff: Held that the 2d plea became thereby immaterial, and that the proper course was to discharge the jury from finding any verdict upon it; but that if any verdict was entered upon it, it must be entered for the plaintiff. Replevin. The defendant pleaded three avowries, stating that the plaintiff held and enjoyed the premises in which, &c. of her the defendant, by virtue of a certain demise theretofore made at and under a certain yearly rent, to wit, the yearly rent of 721., payable half-yearly, and avowed in the first avowry for one year and a half's rent; in the second, for half a year; and in the third, for 961. 10s. 10d., parcel of one year and a half's rent. The plaintiff pleaded in bar to each avowry : first, that he did not hold and enjoy the premises in which, &c. at and under the yearly rent of 721., payable, as in the same avowry mentioned, in manner and form as in the same avowry alleged ; and, secondly, that nothing of the said rent in the same avowry mentioned was in arrear to the defendant: upon all which pleas issue was joined. 466 COSSET :. DIGGONS 2 B. & ALD. 547. At the trial before Graham B., at the last assizes for the county of Suffolk, the rent was proved to be 721. 9s. per [547] annum, upon which the plaintiff contended that all the issues ought to be found for him; for if the rent mentioned in the avowries was negatived, nothing of that rent could be in arrear. The learned Judge told the jury that there were two questions for them to consider, first, whether the plaintiff held at 721. a year; 2dly, whether any thing was due. As to the first, he said that the plaintiff, having denied that he ever held at 721. a year, the defendant was bound by her avowries to prove that tenure; and that where a landlady undertook to prove a given rent, she must prove it accurately, as laid. As to the second point, he stated to them that his present opinion was, that they ought, on the pleas of riens in arrear, to find what rent was due. The jury found the rent to be 721. 9s.; and that 361. 4s. 6d. was due for half a year's rent. The associate being at a loss how to enter the...
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