Jackson ex dem. De Ridder v. Rogers

11 Johns. 33

• Court: New York Supreme Court
• Decided: January 15, 1814
• Status: Published

Opinion

Per Curiam.

It struck the court on the first perusal of the second plea contained in the record of the action of replevin, that it was a disclaimer of any holding under the present lessor of the plaintiff, and so it must have been understood in the court below. But on further examination of the whole record, the pleas and the issues appear to have been confined to the fact whether the barn in which the distress was made was part and parcel of the 100 acres covered by the lease, and the pleas were not intended as a general disclaimer of holding any lands whatever under the lease. The place of taking a distress is material and traversable; and at common law the distress was to be made upon the demised premises, and it is only in the cases mentioned in the statute, that the distress may now be made off the premises. The whole question put in issue by those pleas was, whether the barn was or was not on the 100 acres demised. The doctrine of forfeiture, if it applied at all to a disclaimer by a tenant for life, did not apply to this case, and when the defendant offered to show that his disclaimer was only intended to be confined to the barn, and that the barn was not covered by the lease, and that the original lessor had admitted it, the evidence was material, and ought to have been received. It went to sIioav that he was only contesting the legality of the distress in a place not included in the lease, and that, as to the lands actually demised, he had no intention of doing any act incongjgtent with his duty as a true and loyal tenant.

A new trial ought, therefore, to be awarded, with costs to abide the event °f tllC Suit‘

New trial granted.