Taylor v. Moore — 3 Del. 6

Majority

p. 6

ELIAS TAYLOR vs. GEORGE A. MOORE and MESHACK ELLIOTT.

Headnote

In replevin the defendant may avow generally for rent arrear; but if he state the lease specially he must state it truly.

Where a cause went off on an objection to the form of the avowry, the court granted a new trial on proof of an agreement between counsel to try the case on its merits.

Replevin. “Goods replevied and delivered to plaintiff, and defendants summoned.” Narr. The defendant, Moore, made cognizance as the bailiff of Elliott, who avowed the taking “for one year's rent, to wit: one hundred dollars, due from Elias Taylor, the plaintiff, to Meshack Elliott, the avowant, as assignee of Nehemiah Redden, on a certain lease in writing dated June 10, 1830.” Pleas, non dimi'sit; and rien in arrear.

In support of his avowry, the defendant offered in evidence a lease from Redden to Taylor, dated June 10, 1836, for one year from 1st January, 1836, at eighty-seven dollars and ffly cents rent per annum.

The evidence was objected to as not supporting the avowry; which must state the terms of the contract truly. (2 Leigh’s JVisi Prius 1332.)

To which it was replied, that the avowant was not bound to state the exact amount of the rent in his avowry. (Dig. 364; 2 Selwyn JVisi Prius 374.)

p. 7

Cullen, for plaintiff.

Wootten, for defendants.

The variance is fatal. The avowry is on a special contract for one hundred dollars per year rent, and the lease offered proves a renting at eighty-seven dollars and fifty-cents per year, which is a different lease from that stated in the avowry. The plea of non dimisit puts the lease in issue. ( 2 Leigh, 1333 ; 1 Chitty Pl. 304; 2 Saund. Pl. & Ev. 767.)

Doubtless a general avowry would be good under our act of assembly; but where a party undertakes to set out a special contract in his avowry, he must set it out truly as to its terms, and especially as to the amount of rent.

The lease being ruled out plaintiff had a verdict, which the court afterwards set aside on the motion and affidavit of Mr. Wootten, and on proof being made that there was an agreement between counsel, that this case should be tried on its merits; the consideration for which agreement was the releasing by Mr. Wootten, of an advantage he had on demurrer at the last term.