Shepherd v. Boyce

2 Johns. 446

• Court: New York Supreme Court
• Decided: November 15, 1807
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The cognizance in this case justifies the taking for rent, the goods and chattels replevied, and alleges, that the yearly rent reserved on the first tract is Ql. 5s. commencing on the 1st day of January, 1794; that the rent for the second tract is 71.10s. commencing the 1st day of January, 1793; and because the said sum of 171.16s. Id. was unpaid the 1st day of January, 1803, viz. 6Z. 5s. for the first tract, and 111. 11s. Id. on the second tract, he avows, &c. How these sums are made put, it is difficult to perceive, and the defendant has not, in his cognizance, undertaken to show. The rent is annual for both pieces of land. One year’s rent for both pieces does not make the amount.— One year’s rent-of the first, with respect to which the defendant is definite, and two year’s rent of the second piece, make more than the sum of 171. 16s. Id. so that to make out that sum, there must be a part of a year’s rent included. It is settled, by the cases referred to by the plaintiff’s counsel, that there cannot be an avowry or cognizance for part of the rent, wi;hout showing that the residue is paid. On this principle, the plaintiff must have judgment, unless the defendant elects to amend, on payment of costs.

Judgment for the plaintiff.