Gardner against Humphrey.
ALBANY,
Jan. 1813.
A declaration m replevin must state a theviL si°n may be cured by the defendant’s
States the precise house ov place, the plaintiff may traverse the place in the avowry, though not described with certainty in his declaration. But where the plaintiff does not traverse the place in the avowry, but joins issue on the tenancy, the locm in quo is rendered immaterial; and the plaintiff may show the taking of the goods in another place than the house demised, especially where the goods were removed from each house, leaving the rent unpaid, and were seized within 30 days thereafter.
If the plaintiff means to make the place material, he must, in his plea in bar, or replication to ike avowry, traverse the taking, in the place alleged, in the avowiy, and take issue thereon*
IN ERROR, from the court of common pleas of Orange . . . county. Humphrey brought an action of replevin, m the court below, against Gardner, “ for that Gardner, on the 2d May, at the town oí Newburgh, in the county of Orange, within the jurisdiction of the court, in a certain dwelling-house, took the goods . , . , and chattels (specifying them) of Humphrey, and unjustly detamed them,” &c.
There was avowry by G. that H. was “ his tenant of the dwelling-house in which,” &c. and had held it for a year for the rent *54of 100 dollars, which was due, and avowed that he took the goods, &c- ¡n the dwelling-house, in which, Sec,. as a distress for the rent, &c. with a verification.
The plaintiff pleaded in bar to the avowry, that he did not hold and enjoy the dwelling-house, in which, &c. as tenant thereof to the defendant, &c. in manner and form, &c. and tendered issue to the country.
At the trial, the defendant, to maintain his avowry, offered to prove that the plaintiff was tenant to the defendant óf a certain house in Colden-street, in Nefvburgh, for one year, ending the 1st May, 1811, at the rent of 100 dollars a year, and that the samé, rent was due and payable to the defendant on the 1st Slay, 1811, and for which he took the goods of the plaintiff) &c. The counsel for the" plaintiff objected to this evidence, unless the defendant would show also that the taking of the goods, &c. was in the house in Colden-street, of which the plaintiff was tenant, Sec. And it was admitted that the taking of the goods, &c. was in a house of the plaintiff situate in First-street, in Newburgh, to which the goods had been removed, by the plaintiff) from the house ip Col-den-street, a few days before the 1st May, 1811, and before the rent became due and payable. And the court below decided that the place of taking the goods was material, and that the defendant ' must show that the taking of the goods, &c. was in the house in Colden-street, of which the plaintiff was tenant to the defendant, . Sec. To this opinion the counsel for the defendant tendered a bill of exceptions, because the goods having been taken within 30 days after the rent became due, the place of taking was immaterial, &c.
The jury, under the direction of the court, found a verdict for the plaintiff, that he did not hold and enjoy the said dwelling-house; in which, &c. as tenant, &c. and assessed the damages of the plaintiff, &c. On which the court below gave judgment.
Fisk, for the plaintiff in error.
He cited 1 Saund. 347. n. (1). Hob. 16. Moore, 678. Carth. 373. 2 Salk. 569. 6 Mod. 1. Ld. Raym. 569. 922.
Ross, contra,
cited 1 Chitty’s Pl. 364, . 1 Saund. 347. 5 Com. Dig. Pl. 3 K. 4 Bac. Abr. 389. 1 Johns. Rep. 380. 2 Johns. Rep. 446. 8 Wentw. Pl. 126. 2 Saund. 284. n.
*55
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.