
    * Alexander v. Harris, bailiff of Crammond.
    
      Pleading a/nd practice in replevin.
    
    An averment of a demise for three years, is not supported by proof of a lease for one year certain, and two years further possession, on the same terms, by consent of the landlord.
    
    The plea of no rent arrear, admits the demise, as laid in the avowry.
    
    The court is bound to give judgment for double rent, under the statute of Virginia.
    Alexander v. Harris, 1 Cr. C. C. 243, affirmed.
    Error to tbe Circuit Court of tbe district of Columbia, sitting at Alexandria, in an action of replevin.
    Avowry by the defendant, stating that Crammond was seised in fee of the locus in quo, and demised the same to the plaintiff for the term of three years, at a certain rent, and that because $111.67 of the rent was in arrear and unpaid, he acknowledged the taking as bailiff of Crammond, &e., and prayed judgment for double rent. Plea, ought not to avow, &c., because, he says, that the said sum of $111.67 of the rent aforesaid, at the time when, &c., was not in arrear and unpaid to the said W. Crammond, nor was any part thereof in arrear, &c., and this he prays may be inquired of by the country, &c.
    On the trial, the defendant produced a letter from the plaintiff, to the defendant’s agent, agreeing to take the house for one year, at the rent of $120, payable half-yearly, and proved by witnesses, that the plaintiff took the house upon the terms mentioned in the letter,, and remained in possession three years; that at the end of the first year, no new express agreement was made, but the plaintiff continued in possession, with the consent of the defendant’s agent. The letter did not contain any agreement for renewing the lease, at the end of the term, by consent of the parties; whereupon, at the prayer of the defendant, the court below instructed the jury, that if they believed, from the evidence, that the plaintiff took the house for one year, by his letter, and afterwards, with the consent of the defendant’s agent, continued to hold the house for two years longer, under the letter, and without any new agreement, then the defendant was entitled to recover on his avowry ; but that if the terms of the letter were relinquished, and a new agreement made for the two years, the avowry was not supported by the evidence.
    *The plaintiff also produced to the court, after the verdict was rendered for the rent in arrear, as stated in the avowry, the replevin- *- bond given by the plaintiff, as evidence, to satisfy the court, that the defendant had distrained for more rent than he had avowed for, and more than the jury had found in arrear, and objected to the rendition of judgment for double rent, under the statute. But the court overruled the objection, and rendered judgment for double the rent found in arrear by the verdict.
    To which opinions of the court, the plaintiff excepted, and the verdict and judgment being against him, he brought his writ of error.
    
      M J. Lee, for the plaintiff in error,
    contended — 1. That it was necessary that the landlord, on the issue of no rent arrear, should prove his title in fee, according to the averment in the avowry.
    2. That he should prove the demise as laid; and that the evidence, in the present case, did not prove the demise stated in the avowry ; and—
    3. That the landlord was not entitled to double rent, because it appeared by the penalty of the replevin-bond given by the tenant, which was more than double the rent avowed for, that the landlord had distrained for more rent than was actually due. In support of these points, he cited Esp. N. P. 358 ; Bristow v. Wright, Doug. 640; and the Virginia Laws, New Rev. Code, 155.
    
      Hiort and Youngs, contra.
    A lease for a year, and so from year to year, if the tenant occupies for three years, may be laid as a demise for three years. Birch v. Wright, 1 T. R. 378 ; 4 Bac. Abr. 182.
    The bill of exceptions does not state that it' contains the whole evidence offered at the trial.
    The replevin-bond was the act of the plaintiff himself, and he might gratuitously give a bond in a larger penalty *than the law requires. The -1 act of assembly says it shall be at least in double the amount of the rent distrained for, but does not say it shall not be in a greater sum. Besides, the bond does not appear in the record.
    The plaintiff’s plea to the avowry does not deny the avowant’s title, nor the demise. It is simply the plea of no rent arrear, which admits the title and the demise, as laid in the avowry. By taking issue upon the rent arrear, the plea admits every other allegation in the avowry of the defendant. But if it does not, it is not competent for the tenant, who has enjoyed the land, to dispute the title under which he held. In ejectment, possession alone is a good title against all but the rightful owner. If the plaintiff would deny the demise as laid, he must plead non-tenure. 4 Bac. Abr. 8, 55, 64, 67, 71, 87, 104 ; 10 Viner 486.
    
      M J. Bee, in reply.
    If the defendant was not owner of the land, no rent was in arrear to him. The avowment must prove his case as laid. The case of Birch v. Wright is not like this, and the opinion of Judge Buller is extra-judicial.
    Marshall, Ch. J. — The only doubt is, whether the plea of no rent arreal admits the demise as laid in the avowry.
    
      E. J. Lee. — Nothing in arrear is the general issue in an action of debt for rent; and like the pleas nil debet, non detinet, and not guilty, puts the avowant upon the proof of his whole case. Warner v. Theobald, Cowp. 588 ; Buller’s N. P. 302.
    March 2d, 1808.
    
      
       The demise must be proved as laid. Barr v. Hughes, 44 Penn. St. 516. See Phipps v. Boyd, 54 Id. 342.
    
    
      
       Hill v. Miller, 5 S. & R. 355; Williams v. Smith, 10 Id. 202; Bloomer v. Juhels, 8 Wend, 448; White v. Cross, 2 Cr. C. C. 17; Green v. Nourse, 4 Id. 527.
    
   Marshall, Ch. J.,

delivered the opinion of the court as follows, viz : — In this case, two errors are alleged by the plaintiff in error. * 1 1st. That the circuit court misdirected the jury. *2d. That judgJ ment for double damages ought not to have been rendered on the verdict.

1. The avowry, which sets forth the title under which the distress was made, states a lease for three years certain. The plea to this avowry was, nothing in arrear,” and on this plea, issue was joined. At the trial of the cause, the avowant gave in evidence a lease for one year certain, and a subsequent possession for two years. On motion to instruct the jury that this lease did not support the avowry, the court said, that if the jury should be of opinion, that the subsequent possession was under the original contract, and without any new agreement, then the avowant was entitled to recover, otherwise not. The jury found a verdict for the avowant.

The lease stated in the avowry is obviously a different lease from that which was given in evidence. A lease for three years, is not a lease for one year. But it is contended, that a subsequent possession, without any new express agreement, amounts to an extension of the original lease, and for this Bacon’s Abridgment, and a dictum of Judge Bullee, in the case of Birch v. Wright, 1 T. R. 378, have been cited. But those cases do not prove the point they were supposed to establish. In those cases, the original terms of the lease admit of the extension which was afterwards made by consent of parties. The lease was made for one year, and afterwards from year to year, as long as both parties should please. The principle of continuance is introduced into the original contract, and the occupation for three years is evidence, that the circumstance had occurred, by force of which the contract should be a lease for three years. But in this case, the original contract contains no principle of continuance. It is for a limited time, and can only be extended by a new contract, either express or implied. The lease, therefore, offered in evidence, does not support the avowry.

But a question on which the court has felt more difficulty is this : Does the plea admit the demise, or is the avowant bound to prove it ? If the plea admits the demise, then, notwithstanding the variance, the verdict is right, and *the court has not erred in that part of the opinion which r*o0Q is against the party taking the exception. The issue gives notice to the parties of the point which is to be tried, and which the testimony must support. That which is admitted by the pleadings, need not be proved. If the plea in this case controverts the allegation in the avowry, that the tenant held under a lease for three years, reserving the rent stated to be reserved, then the avowant would be bound to prove the demise as laid. But if the plea admits the demise, then the avowant is not bound to prove it.

The plea is, that the sum distrained for of the rent aforesaid (that is, of the rent claimed under the lease stated in the avowry), was not in arrear and unpaid, nor was any part thereof in arrear and unpaid, at the time when the distress was made, as the avowant in his avowry hath alleged. This plea avers the single proposition that the rent was not in arrear, when the distress was made, and it is this averment alone that the party making the distress is to meet. The averment that the rent claimed in the avowry was not in arrear, when the distress was made, admits the contract by which the rent might accrue, and only denies that anything, at the time of the distress, remained due upon that contract. Upon principle, then, it would seem, that the plea had dispensed with proof of the demise laid in the avowry, by admitting it.

No case has been found in which the point has been expressly decided. It is said in Buller’s Nisi Prius, p. 59, “ If the plaintiff plead Hens in arrere in bar to an avowry, he cannot, upon such issue, give in evidence non-tenure consequently, the defendant cannot be required to show the tenure ; for if it was necessary to show it, the tenant would be at liberty to produce opposing testimony. It is also laid down in Buller, p. 166, that in covenant for non-payment of rent, riens in arrear, or payment at the day, is a good plea ; but riens in arrear, generally, *would not be a good -* plea ; and the reason appears to be, that riens in arrear generally, admits the breach laid in the declaration, and that the rent was not paid on the day. This principle is decided in Hare v. Saville, reported by Brownlow (2 Brownl. 273). Nothing in arrear on the day on which the rent is stated to have accrued, seems to be considered as equivalent to payment on the day ; but nothing in arrear on a subsequent day admits that the covenant was broken, and consequently, admits the covenant. It is not a good plea, because it admits the right of the plaintiff to recover damages. This furnishes a strong argument in favor of the opinion, that nothing in arrear on the day when the distress was made, admits that the rent accrued as stated in the avowry.

The case of Warner v. Theobald, Cowp. 588, was an action of debt for rent, by an assignee against an assignee. The plea of riens in arrear was demurred to, and consequently, the question to be decided by the court was, not what the plea admitted, but whether it was a bar to the action. Mr. Buller objected to this plea, because the plaintiff could not come prepared to know what it would be necessary to prove. The defendant might object to the assignment, or give in evidence payment before or after action brought. In answer to Buller, Wood said, “The form of the plea is nil debet, in the present tense ; but in this case, riens in arrere is a fairer plea than nil debet; because nil debet puts the whole declaration in issue, whereas, this confines the question to the single fact whether such rent was due.” In giving his opinion in support of the plea, Lord Mansfield certainly had not in view the question now under consideration; for he uses expressions which would apply differently to that question. He says, “ saying nothing is due, is the same as if he had said nil debet/” and immediately adds, “ besides, it is a more favorable plea for the plaintiff ;” he must then have applied the first assertion solely to the sufficiency of the plea as a bar, for it could not be a more favorable plea for the plaintiff, if it contested the whole declaration, *and admitted nothing, as is -* the case with nil debet.'1'1 He concludes with observing, “ if the rent was due, and is not, at the time of the plea, it could not have ceased to be due, by the plaintiff’s accepting it.” This case appears to the court to decide nothing further than that the plea pleaded was a good bar to the declaration in debt for rent, and to leave the question, how far it admits the demise laid in the avowry, open for consideration.

It is thought important in the inquiry, that the law appropriates a different plea, which controverts the demise, if the tenant means to contest it —the plea of non demisit. The court is of opinion, that the plea admits the demise ; and that there is no error in the instruction given to the jury, which is injurious to the party taking the exception.

In the judgment for double damages, there is no error. The law directs it positively.

Judgment affirmed, with costs.  