Gardner v. Humphrey

10 Johns. 53

• Court: New York Supreme Court
• Decided: January 15, 1813
• Status: Published

Opinion

Per Curiam.

The declaration did not, state the place within the town, with any certainty. It Was held, in Read v. Hawke, (Hob. 16.) that the declaration in replevin must contain a place certain within the town, or it would be bad on demurrer, but it was there admitted that the defendant might Cure this omission by pleading over, and not relying on the exception. Here the defendant in his avowry, states the taking to have been in a place which is apparently consistent with that mentioned in the declaration, but the defendant ascertains the precise dwelling-house intended, by saying it was the one that the plaintiff had occupied as his tenant under a stipulated rent. The plaintiff, in his plea in faar, might, perhaps, (though he had not described with any certainty the dwelling-house in his declaration,) have traversed the place in the avowry. This, however, he did not do. He did not join issue on the place, but denied the tenancy or holding under the defendant, and thus rendered the locus in quo immaterial. No person would have supposed, from the issue, that if a tenancy existed in a dwelling-house in Newburgh, and rent was in arrear, that the avowry would not have been maintained. The plea went tb the merits, but the place is not of the merits, for if the goods he removed, “leaving the rent unpaid,” they may be seized anywhere within 30 days thereafter. (Sess. 11. c. 37. s. 13.) It was said by Brian and Starkey, in 22 Edw. IV. 51. a. that if the defendant avow in one place, and the plaintiff say the taking was in another place, and name it, he must traverse the taking in the place in the avowry. If the plaintiff means to make the pláce material, he must do so in his plea in bar, or replication to the avowry, and join issue upon the place, and so are the precedents. (Rastall, 554, 555, 556.) It was, therefore, sufficient, upon the trial of this cause, for the avowant to have proved what he offered to prove, without going farther, and showing that the distress was made in the very house so demised. The place of the taking was not the point on which issue was joined. The plaintiff had "admitted the taking to be where the avowant had alleged it, and had only put in issue the fact of the tenancy.

The judgment below must be reversed, and the plaintiff in error, is at liberty to have the record remitted, or a Venire de novo awarded at the Orange circuit.

Judgment reversed.