Terboss against Williams

Terboss against Williams. A land!ord cannot distrain rent, after aad the tenant has th^premiseT; end abandoned si on ; though ^ d^adsaa®a removed have the term, the distrain the to-days after moved"6 from the . demised premises, though more elapsed befau¡ng due and the d-s" Where a plea simply denies certain facts set up in an avowry introducing no new matter, it should con-country*" but a a conclude with a verification, it will be good on general demurrer. A wrong conclusion of a plea in bar, can be taken advantage of only by special demurrer On demurrer to one of the plaintiff’s pleas to the defendant’s avowry. The action was replevin for certain household furniture, alleged to have been taken May 29th, 1823. The defendant avowed the taking as a distress for rent, upon a demise from him to the plaintiff, of a certain hotel lot in Salem, Washington county, at $450, annual rent; and averred that the plaintiff enjoyed the premises, under a demise from the defendant, from the 1st day of February, 1816, until the 1st day of May, 1823; and from thence until, &c. That on the 1st day of February, 1823, $1350 rent was due for three years; and that, on the day mentioned in the declaration, after that sum became due, the plaintiff fraudulently and clandestinely removed the goods from the demised premises; and within 30 days thereafter, the defendant distrained them for the $1350 in arrear. To this avowry the plaintiff interposed several pleas; one of which was, that all interest, title, term and estate which the plaintiff had by virtue of the demise, before the time when, &c. to wit, on the 1st of May, 1823, wholly ceased, determined and ended; and the plaintiff on that day wholly removed off, from and out of the possession of the premises: and had never since been in possession of the whole or any part; nor in any manner since that time been tenant to the defendant. General demurrer and joinder. D. Russell in support of the demurrer. S. Stevens, contra, cited Burr v. Van Buskirk, (3 Cowen, 263, 269, 271;) 1 R. L. 438, s. 17; 5 Laws, 178, b. s. 17; 1 R. L. 347; Bradb. on Distr. 127; Pennant’s case, (3 Rep. 54;) Co. Lit. 47, b.; 2 Saund. 284, b. note (2). [MAJORITY — Curia, per Woodworth, J.] Curia, per Woodworth, J. The avowry alleges a subsisting demise and possession by the plaintiff, when the defendant distrained the goods, fraudulently removed. The avowry is, therefore, sufficient. (The opinion expressed in Burr v. Van Buskirk, (3 Cow. 271,) that a distress off the premises can only be made within thirty days after the rent fell due, was not necessary to the decision of that cause ; and on more full consideration must be overruled. The plea substantially takes issue on the material fact in the avowry; for if the plaintiff’s interest ceased on the 1st May, 1823, and he removed off the premises before the time, when, &c. it negatives the averment, that the plaintiff was possessed, &c. as tenant to the defendant, at the time of making the distress. This fact being admitted by the demurrer puts an end to the right of distress. It is said, the plea ought to have concluded to the country. This is correct; but it is not cause for a general demurrer. (2 Saund. 190, n. 5.) I am of opinion that the plaintiff is entitled to judgment, with leave to the defendant to amend. Rule accordingly. Vid. Reynolds v. Shuler, ante, 323.