
    Bain against Clark.
    NEWYORK,
    Oct. 1813.
    C. leased a <¡né" year, to fronTthe61st •April, isos, at th e rent of so dollars, endab'ofat the agreed to renew the lease year, provided Tvaat'the farm for his own
    On the 19th m8™lG.r’entTnder oVthe lease^ ^ by rendered v.p to'c^to'houi had ^ not been made, holding verthelesSjliayear’s^renT- and ^ngrcebig take aú lawful recovery'the thereof, according to the lease.
    G. having continued in tiuimautumn of 1808, sowed wheat and ryes and in October, sold the wheat, he. then growing, to B., who enclosed it with a fence. In November following, G. quitted the possession of the premises, and made the surrender to C.
    C. in Jhigust, 1809, took possession of the wheat and rye before it was reaped; and in an action ©f replevin brought by B., C. justified the taking as a distress for the rent in arrear. It was held, that by the surrender, there was an extinguishment of the estate of the lessee, and the lessor had no right to distrain, the relationship of landlord and tenant having entirely ceased; and that his only remedy was on the special agreement by G. to pay the rent. But that B., the plaintiff, had no right of action for the wheat and rye, because they became the property of C. after the expiration of the lease, G. not being entitled to the crop as emblements.
    
    Where an avowry did not set forth the estate, of which the avowant was seised, it was held bad, though the plaintiff had pleaded over, and a verdict was taken on the issue joined ; and the judgment was arrested, on that ground.
    THIS Was an action of replevin, for six acres of wheat and twelve acres of rye. The taking was alleged in the plaintiff’s declaration *° have been on the 20th August, 1809. The defendant avowed that he took the wheat and rye as a distress for rent in arrear, and J stated that one William T. Graves, for one whole year next before the taking, &c. enjoyed the said farm on which, &c. under a ^ease therefor from the defendant to him, reserving 30 dollars, payable on the 1st April, 1809, during which time the said Graves possessed and enjoyed the said farm, &c. as tenant of the defendant; and because the said 30 dollars rent, See,
    
    To this avowry, the plaintiff pleaded, 1. That the said Graves did not from, &c. enjoy the said farm, &c. under a lease theretofore made to him, &c. by the said defendant, as in his avowry he hath alleged, &c.; 2. Protesting that the defendant never made any such lease to the said Graves as, See.; that the said Graves on the 1st January, 1809, three months before the expiration of the ®aid term, left the possession of the farm on which the said wheat anc* r7e were taken, and during all the time from the 1st January, to the 20th August, when, &c. the said Graves was not in possession oi the farm on which, &c.
    
      Replication to the 2d plea, that the defendant did make such a lease to the said Graves, and that the said Graves did possess and enjoy the said farm on which, &c. under the lease, Sec. and of this the defendant put himself on the country, Sec.
    
    The cause was tried at the last Washington circuit, before the # Chief Justice. The following facts were admitted or proved at the . , tricti.
    The defendant was owner of the locus in quo, and had leased 
      a farm which included the premises on which the wheat and rye in question were growing, to one William T. Graves. The lease was dated the 10th November, 1807, for the term of one year from the 1st April, 1808, then next after the date; and Graves cove-» nanted to pay SO dollars rent, at the expiration of the term, and surrender up the premises to the lessor in good repair, &c. and not suffer any waste, &c. The defendant agreed to take part of the rent in rails to be used on the land; and also to renew the lease for the improved land at the expiration of the term, for one year next ensuing, provided he did not require the farm for his own use; and in case he did require it, then Graves agreed to surrender it, as aforesaid.
    On the lease'was endorsed a surrender by Graves, dated 19th November, 1098, by which, for the consideration of one dollar, hé surrendered up the premises, &c. to the defendant, to hold the same as if the lease had never been made; holding himself liable, nevertheless, to the payment of the rent mentioned in the lease, and that the defendant might have and take all lawful ways and means for the recovery thereof, according to the lease, and the laws of the state.
    
      In April, 1808, Graves took possession of the farm under the lease, and continued in possession during the summer, and in the autumn ’ sowed the wheat and rye in question; in October he sold the wheat and rye to the plaintiff, who enclosed it with a fence. In November, 1808, Graves quitted possession of the farm, and on the 18 th of the same month, executed the surrender as above mentioned. Immediately after the surrender, the defendant put one Martin into possession of all the premises covered by the lease, except the part on which the wheat and rye in question were growing., In August, 1809, the wheat and rye, before it was cut, was distrained by the defendant for the rent reserved in the lease, and alleged to be in arrear. •
    It was proved that in November, 1809, after the surrender by Graves, the defendant went on the land on which the wheat and rye were growing, took down the fence, and made a way through the same, which he used during the following winter for drawing logs to mill.
    A verdict was found for the plaintiff, subject to the opinion of the court on a case containing the facts above stated.
    A motion was made for a new trial, and also in arrest of judgment.
    
      
      J. Russell, for the plaintiff.
    Can the landlord distrain for rent arrear> a^er tb® expiration of the term, and after the tenant has quitted the possession ? At common law he could not. The rule was rigid in this respect. Our statute, taken from the English sfatute of 8 Ann. c. 14. permits a distress for rent arrear after the determination of the lease; “provided such distress be made within the space of six calendar months after the determination of such ^ease’ an(i during the continuance of the landlord’s title or interest, and during the possession of the tenant from whom such arrears became due.” The parties took issue on the fact whether the tenant was in possession, and it is found by the jury that he had surrendered up the possession.
    Again, as to the ground of arrest of judgment. No title is stated in the avowry, and it is a settled rule that the avowant in replevin must set forth his title, and allege the estate of which, he is seised, or the avowry is bad.
      1
    
    D. Russell and Foot, contra.
    The Avriting endorsed on the lease Avas not a surrender, but a mere license. To make a- good surrender, the surrenderer must have an estate in possession of the thing surrendered, at the time of the surrender. That it could not have been intended as a surrender is evident from the provision it contains, which is inconsistent Avith the idea of a sur? render.
    .if the doctrine of the plaintiff’s counsel is correct, then the defendant must be considered as having not only the possession, but the right of possession, and the .plaintiff could have no right to make the distress. And where the tenant leaves property on the premises, it is a continuance of the possession,
    In Beavan v. Lelahay and Lewis,
      
       it ivas decided that where by custom the tenant might leave his away-going crop in the barn, &Ce on the farm, for a certain time after the lease, the landlord might distrain the.com so left, after the expiration of six months from the determination of the lease. The principles on Avhich this case was decided, though confined to the case of a distress within the limited time, by the custom, support the opinion that the distress might be made at any time, while the contract between the parties may be supposed to continue, though the lease has expired, and the tenant has left the premises.
    Again, after the expiration of the term, the crop of wheat and ye sown, belonged to the tenant, as emblements,
    
      J. Russell, in reply, said that the defendant,
    by his avowr~j, admits ted the property hi the goods to he in the plaintiff; but justified the taking as a distress for the rent. If he meant to clahu the wheat and rye as his property, he ought to have so stated it in pleading0 In the case of Beavan v. Delahay and Lewis, there was a custom of the country as to the out-going crop. If there was any custom here, the defendant ought to have set it forth in pleading, that the plaintiff might have taken issue on it. The court will not take notice of the existence of a custom, unless averred and proved.
    
      
       3 Bl. Com. 11. Cro. Jac. 142. 1 Roll. Ab. 670. pl. 10.
    
    
      
       Sess. 11. c. 36. s. 17.
      
    
    
      
      
         Harrison v. M' Intosh, 1 Johns. Rep. 484.
    
    
      
      
        Shep. Touch. 302.
    
    
      
       1 H. Bl. 5. Com. Dig. Distress. A. 2 and n. (a). 2 Saund. 284. b. n. 2.
    
   Per Curiam.

The avowant has mistaken his rights. He had no right of distress for rent. The surrender on the 19th of November, 1808, was valid, and the effect of it was to extinguish the estate of the lessee, and to pass it to the original lessor, and with the extinguishment of the estate, the rent likewise became extinct. (Shep. Touch. 299, 300.) The relationship of landlord and tenant between the parties was completely gone, and though the lessee might continue bound for the year’s rent, by reason of the express agreement in the deed of surrender, yet that was a personal responsibility founded on the agreement, and could not arise from a continuance of the contract between them as landlord and tenant. The idea of a continuance of the rights and properties of the original contract, is altogether inconsistent with the fact and the effect of the surrender.

On the other hand, the plaintiff had no right of action, a$ the avowant had a right to appropriate the wheat and rye to himself, for it belonged to him as his property. The lease to Craves was for a year, and there was no provision in it that he should take the emblements, or the growing crop, and the lav/ does not give such a right on such a lease. -The doctrine of emblements is founded on the uncertainty of the termination of the lease. The sale of the growing crop by Craves to the plaintiff was a sale of a chattel in which he had no interest. The lessor agreed to renew the lease at the end of the year, provided he did not want the farm for his own use ; but this did not alter the case, as the period of the lease was fixed, and the tenant had no interest beyond that period.

Upon a' view of the whole case, there is no right of action. The plaintiff had no property in the chattels distrained, and the avowant is entitled to a return, as the possession of his goods was illegally taken from him by the replevin; and the verdict was taken for the plaintiff subject to the opinion of the court.

But the plaintiff has connected with the argument on the case, a motion in arrest of judgment, on the ground that the avowry did not set forth the title of the avowant.

The avowry was clearly defective in not alleging the estate of which the avowant was seised. (Harrison v. M'Intosh, 1 Johns. Rep. 380.) The only question that can be made is, whether it is to be held bad after pleading over by the plaintiff, and verdict taken upon an issue joined. The authorities on this point are contradictory. In Freeman v. Jugg, K. B. 12 Wm. III. (3 Salk. 307.) the defect was held to be cured by the pleading over and the verdict; but in English v. Burnell and Ingham, C. B. 5 Geo. III. (2 Wils. 258.) the judgment was arrested after verdict for this defect; and the court held it to be a case of defective title,, and not of a title defectively set forth. The latter decision is the most recent and best considered, and is founded on the best legal principles; for the verdict cannot possibly warrant the presumption that the estate of the avowant was shown to, and found by the jury. To uphold the plea after verdict is reducing the ancient and solid rule of pleading to a mere matter of form.

The judgment must, consequently, be arrested.

Judgment arrested.  