
    Webber & Cody vs. Shearman.
    Holding over after the expiration of a lease for a year, is a continuation of the for mer tenancy subject to the same right of distress; and this, whether the first demise be by deed or by parol.
    
    Goods of a thud person remaining on the demised premises during such holding over may be distrained for the rent of the original term, though more than six months have elapsed since that term expired.
    Accordingly, where in replevin against a landlord he avowed the talcing of the goods in question by way of distress for rent, alleging that he demised the premises on which they were distrained to one G. for a year ending on the 30th of March, 1840, and that G. continued in possession as tenant till the 11th of August, 1841, when the distress was made": Held, not a good plea to the avowry that the rent accrued upon a demise under seal, and that the tenancy thereby created was determined more than six months previous to the distress.
    In replevin, an avowry that the goods were taken by way of distress for rent due from a stranger, alleging property in such stranger, is sufficient upon general demurrer, though there be no formal traverse that the goods belonged to the plaintiff; but otherwise, semble, upon special demurrer.
    The rule that a plea in replevin or a replication in any other action shall not be double, does not apply where one of the two facts denied is mere surplusage. Per Cowen, J.
    Accordingly, where, in replevin by W. & C. for talcing their goods from the farm of one H., the defendant avowed the taking by way of distress for rent due from G., averring the latter to be the owner of the goods, and that, he having fraudulently removed them from the demised premises to H.’s farm in order to prevent their being distrained, the defendant seized them within thirty days &c.: Held, that a plea, though denying both the ownership of G. and the fraudulent removal, was not bad for duplicity, inasmuch as the averments in the avowry respecting such removal were mere surplusage.
    If in such case the defendant intend to make the allegation of fraud material, he must give color by showing that the plaintiffs were in possession of the goods at the time of the distress. Per Cowen, J.
    On demurrer to avowries in replevin. The first, second and third counts in the declaration were for taking &c. certain property belonging to the plaintiffs, to wit, oats, potatoes, cattle, horses &c.; alleging the taking to have been on the 11th of August, 1841, from a farm &c. The fourth count was for taking &c. a large number of sheep, on the same day mentioned in the other counts, from a farm owned by one Luke Hitchcock.
    
    
      The defendant avowed the taking See. in the first, second and third counts mentioned, by way of distress for rent, alleging that Morris C. Griswold, for one year before and ending on the 30th of March, 1840, held and enjoyed the farm on which &c. as tenant thereof to the defendant, by virtue of a demise to Griswold theretofore made, at the yearly rent of $280, payable at any time after the 1st day of April, 1840, not beyond one year, with interest; and because the sum of $280, the rent aforesaid for the space of one year ending on the said 30th day of March, &c. and the interest thereon, was due and in arrear Sec. and the said Griswold continued in the possession and occupation of the said farm on which Sfc. from the said 30th day of March, thence until and at the time when Sec. as the tenant thereof to the said defendant, said cattle &c. being on said premises Sec., the defendant well avows &c.—praying a return.
    The defendant also avowed the taking &c. complained of in the fourth count of the declaration, by way of distress for rent due from said Griswold. This avowry, after setting forth the demise to Griswold, the rent due from him, and his continuance in possession, as in the first avowry, stated that, because the said sheep &c. were the property of the said Grisioold, at the time when &c., and, before the said time and after the said rent became due, viz. August 1st, 1841, were wrongfully, fraudulently and unjustly removed and taken by the said Gris-wold from and out of the said premises demised, with intent wrongfully and unjustly to defraud the said defendant of the said rent, and to prevent the said defendant from distraining the same fyc. and put in the place in the fourth count mentioned, the defendant well avows the taking within thirty days after said removal See.—praying a return.
    The plaintiffs’ first plea to the first avowry was, in substance, that, under an indenture signed and sealed by Shearman, (the defendant,) and said Griswold, Shearman demised said premises to Griswold for one year from the 1st of April, 1839, at said rent &c., due as aforesaid with interest, on which, and on no other demise, 'the rent distrained for arose. The plea then averred that the said demise and the tenancy thereby created, were determined and fully ended on the said first day of April, 1840; and that the distress was made more than six months after the determination of the said demise or lease. The plaintiff5s first flea to the second avowry was like the above. The third flea to the second avowry was, that the said sheep, at the time &c. were 7iot Griswold’s, and were not wrongfully, fraudulently and unjustly removed by said Griswold, from &c. with intent wrongfully and unjustly to defraud the defendant of the rent, and prevent the defendant from distraining, as in the avowry alleged.
    The defendant demurred generally to the first flea to the first avowry, and to the first flea to the second avowry. To the third flea to the second avowry, the defendant demurred specially for duplicity. Joinder.
    
      W. M. Allen fy C. P. Kirkland, for the defendant.
    
      J. W. Jenkins, for the plaintiffs.
   By the Court, Cowen, J.

Saying the tenant Griswold continued in possession as tenant to the defendant till distress made, is in substance an averment that Griswold held over till that time. It is no answer to say that the first demise was for a year by deed, and that specific demise and the specific tenancy under the deed were at an end when the distress was made. This is in no way incompatible with the continuing tenancy by a holding over. The pleas merely aver a termination of the tenancy by deed, leaving the fact unanswered that the implied tenancy and possession as averred by the avowries continued down to the time mentioned. Such continuance was sufficient to warrant the distress. The first tenancy need not be continued by deed. It is enough that it be continued by parol or by tacit consent. This was held substantially in Sherwood v. Phillifs, (13 Wend. 479.) The avowry and cognizance there, were on an original demise of two years, averring that, in virtue thereof, the tenancy continued for nine years, and avowing and acknowledging a distress for all the rent accruing in the course of one entire term of nine years. The averment was, that the premises were tenanted for the nine years by virtue of the original demise ; and this was held to make out a good case for the defendant. True, it did not appear whether the original lease was by seal or not. But for the. purpose of raising the right of distress, and continuing the term with a view to that right, it is the same thing. Holding over after the expiration of a sealed lease is a continuation of the same tenancy, and an enlargement of the same term. The avowry or cognizance need not state whether the demise was under seal or not. And though it appear to have been so by the plea or by evidence on the trial, and that the holding over was by express or tacit consent without seal, the legal effect is the same, for the purposes of distress, as if there had been an express enlargement by specialty. The occupation for so long, at such a rent, is the substance of the issue, whether under an extension by deed, or a continuation of the original tenancy under a modified form of contract.

It follows, that in order to defeat the case made out by the avowries, the pleas should have shown generally that the relation of landlord and tenant between the defendant and Gris-wold ceased more than six months prior to the time when the right of distress was exercised. (2 R. S. 412, 2d ed. § 1 ; Bukup v. Valentine) 19 Wend. 554.) On the contrary, the pleas virtually admit that both tenancy and possession continued down to the time of the distress. The first pleas to the first and second avowries respectively are therefore bad.

The second avowry admits that the sheep when distrained were off the demised premises, and bases the right to distrain them on what it considers two material facts •, viz. that the sheep belonged to Griswold, and that he had fraudulently removed them to prevent the distress. The plea denies both; and is therefore demurred to for duplicity. The avowry sets up matter of justification, not matter of excuse; and, under the general rule, perhaps only one of the facts, if each were essential, could be denied by the plea. (Tubbs v. Caswell, 8 Wend. Rep. 129.) It is said that this rule does not apply where the defence rests on two facts, and the denial of either would be insufficient. That here, a denial of the fraud alone would admit tit! e in Griswold, and so out of the plaintiffs. That it would not be sufficient, therefore, to traverse that alone; but the plea must, to be available, also deny Griswold’s property. There may be something in this ; but it strikes me that the whole allegation of fraud is entirely immaterial, and not to be regarded as amounting to any thing. The avowry is framed just as if Griswold were the plaintiff, and if so, the fraud might be material; but he is not. As against Webber & Cody, it was enough for the avowry to show property out of them, which I think it does by averring that it was in Griswold ; not formally, for want of a traverse that it was the plaintiff’s, but sufficiently in substance. (See Prosser v. Woodward, 21 Wend. 205 ; Ingraham v. Hammond, 1 Hill, 353.) It need not have stated any demise, or that Griswold had fraudulently removed the property; and in denying the fraud, it follows, that the plea has denied nothing beyond the fact that the property was in Griswold. In form, it should have done more, and re-affirmed property in the plaintiffs as alleged in the declaration ; but the defect is not in this respect specially assigned. The rule that a plea in replevin, or a replication in any other action shall not be double, cannot apply where one of the two facts denied is mere surplusage. In short, the line of pleading on the fourth count which terminates in the third plea to the second avowry is sufficient, in substance, to raise an issue on the question whether the property belonged to the plaintiffs when it was distrained, or whether it belonged to Griswold; and that alone is the true question. If the defendant had intended to make the fraud material, he should have given color, by showing that the plaintiffs were in possession of the property when it was distrained. (Brown v. Artcher, 1 Hill, 266.) It follows, on this view of the case, that the demurrer to the third plea to the second avowry is not well taken.

There must he judgment for the defendant on the demurrer to the first plea to the first avowry; also on the demurrer to the first, plea to the second avowry.

On the demurrer to the third plea to the second avowry, there must be judgment for the plaintiffs.

Ordered accordingly.  