
    Southall v. Garner.
    November, 1830.
    (Absent Brooke, P., and Coaeter, J.)
    Replevin — Pleadings—Common Law Rules in Force in Virginia — Avowry.—The common law rules respecting the pleadings in replevin, and particularly, in regard to the nicety and precision required in avowry, are in force in Virginia, unaffected by any statutory provision; therefore, an avowry, faulty according to the common law rules applicable to that pleading, was held bad on general demurrer.
    In an action of replevin, brought in the county court of Albemarle, by V. W. South-all, claiming as trustee for James Leitch, against Mary Garner, for goods which she had distrained for rent due her from Peter Laporte, Southall, in his declaration, complained that the defendant, on &c. at the parish of-- in the county aforesaid, in a certain dwelling house there, took the goods and chattels, to wit, two milch crows, three feather beds, &c. (enumerating sundry articles of furniture) of him the said plaintiff trustee as aforesaid, of great value &c. and unjustly detained the same &c.
    The defendant filed an avowry of which the following is an exact copy: “And the said defendant by her attorney, comes and defends the wrong and injury, when &c. and well avows the taking of the said goods and chattels in the said declaration mentioned, in the said dwelling house in which they are alleged to have been taken, because she says, that a certain Peter La-porte, for several months, to wit, for nine months next before the taking of the said goods and chattels, held and enjoyed the said dwelling house, in which the said goods and chattels were taken, with the appurtenances, *as tenant thereof to the said defendant, by virtue of a certain demise thereof to him the said Peter Laporte theretofore made, to wit, on the 1st day of January 1820, at and under the yearly rent of 400 dollars, payahle quarterly, to wit, on &c. by even and equal proportions; and because the sum of 100 dollars, parcel of the said rent, which had accrued during the quarter ending the 25th day of December 1820, was at the time when the said goods and chattels were taken as aforesaid, due and in arrear from the said Laporte to the defendant, the defendant well avows the taking of the said goods and chattels in the said dwelling house, for and in the name of distress for the said rent, so as aforesaid due and in arrear to the defendant ; and in this she is ready to verify &c. ”
    To this avowry, the plaintiff pleaded in bar, that Laporte, the tenant, during the year for which the premises were let to him by the defendant, as stated in her avowry, executed a deed of trust, which was after-wards duly recorded, whereby he conveyed the goods now distrained to the plaintiff, in trust, to secure a debt then and still justly due to Leitch; whereby the goods passed to the plaintiff as trustee for Leitch, and were not liable to be distrained for the rent due from Laporte to the defendant.
    And to this plea the defendant put in a general demurrer.
    The county court gave judgment for the defendant; the plaintiff appealed to the circuit court, which affirmed the judgment; and then he appealed to this court.
    The case was argued here by Johnson for the appellant, and Leigh for the appel-lee.
    The parties, in the court below, apparently intended to present the question, upon the construction of the act of 1815, ch. 15, l 7, 1 Kev. Code, ch. 113, \ 15, p. 450, whether goods mortgaged by a tenant, during his occupation of leased premises, and retained in his possession upon the premises, are liable to be distrained for the rent in arrear? In other words, whether, in such a case, the title of the mortgagee is paramount to *the rights of the landlord? And that point was argued by Leigh with much earnestness; but Johnson said the court could not get to that question in this case, and declined the discussion of it: for,
    He said, that upon Garner’s general de-murrrer to Southall’s plea in bar, the court must look back to the first fault in the pleadings; and it would find the avowry fatally defective: that this avowry was apparently framed upon the precedent, in 2 Chitt. Plead. 512, of an avowry under the statute of 11 Geo. II, ch. 19, '& 22, but it did not pursue Chitty’s precedent, and it would have been naught, even if we had any such statutory provision here, which we have not; much more was it faulty at common law, which is the law of Virginia on the subject. It was faulty, 1. Because it did not aver that the lease was continuing, or that the tenant was in possession and the landlord’s title continuing, at the time of the distress. At common law, distress could not be made after the lease expired: our statute authorised distress afterwards, if the tenant continue in possession and the landlord’s title continue; 1 Rev. Code, ch. 113, § 20, 21. 2. Because the demise and the landlord’s title were imperfectly set out: neither the commencement nor expiration of the term, but only the date of the lease, is set out; nor who were the parties to the demise; nor the days of payment of the rent; nor what was the title of the avowant; nor that she or any body else was seized ; nor that the property distrained was upon the demised premises; nor that it was the property of the tenant; which the 15th section of our statute concerning rents, certainly renders necessary. The common law required much strictness and nicetj' in avowries; and, in particular, it required the avowant to shew his title, and that the reversion is in him, and to set forth the demise with precision. Poole v. Longuevill, 2 Wms. Saund. 282, 284, b., note 3; Hale’s 2d exception to the avowry in Bennet v. Holbech, Id. 319, a. ; Scilly v. Dally, 2 Salk. 562, 1 Bro. P. C. 525; S. C. Reynolds v. Thorpe, *2 Stra. 766; Hawkins v. Eckles, 2 Bos &. Pull. 359; Harrison v. M’Intosh, 1 Johns. Rep. 379, 383.
    Leigh, contra,
    endeavoured to shew, 1. That the declaration was faulty in omitting to give any manner of description of the goods replevied, or of the place where they were taken. He did not contend, that an exact description of the goods, distinguishing them, with absolute certainty,from all other goods of the like kind, was necessary, for such description would be hardly practicable; but they might and ought to have been described and identified with all practicable certainty; they might and should have been described, as goods then in possession of Laporte, and at the house by him occupied. If it was right on general demurrer to the plea, to go back to the faults of the avowry, it was right to go a step farther back, and look to the faults of the declaration. 2. That the defects in this avowry, if they would have been fatal in a controversy between a landlord and his tenant, who has an interest to contest the avowant’s title and right to distrain, were immaterial in this controversy between the landlord and a stranger to the lease, who had no interest to contest the landlord’s right which the tenant did not dispute. All the cases cited by Johnson, were cases between landlord and tenant. 3. That though the avowry might be bad on special demurrer, it was not so on general demurrer. In the cases cited, the avowries were specially demurred to. The plaintiff cured the defects of the avowry here, by pleading to it; they were not such as would have been good cause in arrest of judgment; Freeman v. Jugg, 3 Salk. 307.
    Johnson replied,
    that the declaration was as certain as in such a case was practicable, and at all events the faults alleged against it, were cured by the defendant’s avowing. Bullythorpe v, Turner, Willes 476, note (a.) The avowry was bad on general demurrer; its defects were not cured by the pleading to it, and would have been sufficient cause in arrest of judgment. English v. Burnell, 2 Wils. 258; Bain v. Clark, 10> Johns. Rep. 435, 9. If in replevin between '^tenant and landlord, the landlord must shew his title and his right to distrain the goods of his tenant, he ought to be held to equal strictness, at least, when he avows the taking of the goods of a stranger in distress for rent.
    
      
      See generally, monographic note on "Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
      The principal case was cited in Bargamin v. Poitiaux, 4 Leigh 421: Carter v. Grant, 32 Gratt. 776.
    
   GREEN, J.,

delivered the opinion of the court. The question which the parties intended to submit by their pleadings, is not brought up in such a way as that it can be judicially settled by the judgment of the court in this case. The demurrer leads us up to the first fatal error in the pleadings. Upon the authorities cited at the bar, the declaration, if not good against a special demurrer, is good upon general demurrer, and cured by the pleading over. But the avowry is fatally defective in many of the particulars stated at the bar. This avowry was imperfectly copied from the form in Chitty’s Pleadings, framed upon 'the provisions of the english statute of 11 Geo. II, ch. 19, ? 22, which, in cases of distress for rent, greatly relaxed the strictness necessary in avowries by the common law; but we have no such statute, and none which at all affects the rules of the common law applicable to the pleadings in replevin.

The judgment is to be reversed, the demurrer overruled, and the cause sent back, with a direction to award a writ of inquiry as to the damages sustained by thé plaintiff.  