McLain v. Willey

Superior Court of Delaware

McLain v. Willey

75 A. 786, 24 Del. 245, 1 Boyce 245, 1910 Del. LEXIS 27

DecidedMarch 15, 1910

StatusPublished

This text of 75 A. 786 (McLain v. Willey) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McLain v. Willey, 75 A. 786, 24 Del. 245, 1 Boyce 245, 1910 Del. LEXIS 27 (Del. Ct. App. 1910).

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Opinion

Boyce, J.,

delivering the opinion of the Court:

In making avowry or cognizance in replevin, upon distress for rent in arrear, the defendant “may,” by Section 47, Chapter 120, Revised Code (1893), page 872, “avow or make cognizance generally for rent in arrear, stating to whom, for what premises, and for what time, without other particulars.”

The defendant in this case made in his cognizance the statement that “and at the time of the taking, to-wit, on February 19, 1909, the plaintiff owed for rent in arrear to his said landlord for said premises for the years A. D. 1907 and 1908 * * * which said rent is still in arrear and unpaid.” The plaintiff demurred, assigning as cause the insufficieny of the cognizance, in that it does not state any certain term or period, nor the beginning or ending of any certain term or period for which the said plaintiff was, or is supposed to be in arrear for rent to his said landlord.

[247]*247Under the statute, the defendant may avow, or make cognizance, as may be required, generally, without setting out the lease or agreement under which the rent is claimed.

King’s Admr. vs. Lambden, et al, 4 Harr. 283.

And generally the particularity of statement previously required is dispensed with, yet, we think, the plaintiff should be reasonably apprised by some certain dates of the time or term for which the rent in arrear is demanded by the landlord. In view of the fact that the renting year, in this county, was then from March 25th to March 25th, in the absence of a special letting, there is some vagueness and uncertainty as to what is meant by the words “for the years A. D. 1907 and 1908.’’ And, we think, the plaintiff is entitled to a more certain statement as to the dates of the time or term for which the said rent is in arrear.

There are two selected forms in 2 Woolley, Sections 1553 and 1554, which are good examples of the kind of statement which should be made, though less particularity might be sufficient.

The demurrer is sustained for the reasons assigned.

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Boyce, J.,

delivering the opinion of the Court:

In making avowry or cognizance in replevin, upon distress for rent in arrear, the defendant “may,” by Section 47, Chapter 120, Revised Code (1893), page 872, “avow or make cognizance generally for rent in arrear, stating to whom, for what premises, and for what time, without other particulars.”

The defendant in this case made in his cognizance the statement that “and at the time of the taking, to-wit, on February 19, 1909, the plaintiff owed for rent in arrear to his said landlord for said premises for the years A. D. 1907 and 1908 * * * which said rent is still in arrear and unpaid.” The plaintiff demurred, assigning as cause the insufficieny of the cognizance, in that it does not state any certain term or period, nor the beginning or ending of any certain term or period for which the said plaintiff was, or is supposed to be in arrear for rent to his said landlord.

[247]*247Under the statute, the defendant may avow, or make cognizance, as may be required, generally, without setting out the lease or agreement under which the rent is claimed.

King’s Admr. vs. Lambden, et al, 4 Harr. 283.

And generally the particularity of statement previously required is dispensed with, yet, we think, the plaintiff should be reasonably apprised by some certain dates of the time or term for which the rent in arrear is demanded by the landlord. In view of the fact that the renting year, in this county, was then from March 25th to March 25th, in the absence of a special letting, there is some vagueness and uncertainty as to what is meant by the words “for the years A. D. 1907 and 1908.’’ And, we think, the plaintiff is entitled to a more certain statement as to the dates of the time or term for which the said rent is in arrear.

There are two selected forms in 2 Woolley, Sections 1553 and 1554, which are good examples of the kind of statement which should be made, though less particularity might be sufficient.

The demurrer is sustained for the reasons assigned.

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Bluebook (online)

75 A. 786, 24 Del. 245, 1 Boyce 245, 1910 Del. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclain-v-willey-delsuperct-1910.