
    Ewing, Executor of Ewing, and others against Vanarsdall.
    In Error,
    In replevin, ■where three defendants avow for rent in arrear, and a fourth makes cognisance, proof of a demise by one 5s not sufficient to support the issue.
    THIS cause' was brought up from the District Court of the city and county of Philadelphia, by writ of error.
    . In the court below an action of replevin was brought to December, 1808, by John Vanarsdall against William Diving, John Cook, Rebecca Cook, and Peter Winn. The pleadings, shortly stated, stood thus :
    “ September 27th, 1809, defendants William Ewing, John Cook, and Rebecca Cook, avow for rent in arrear. Peter a Winn makes cognisance.” “ Rep. no rent in arrear.” “ May 7th, 1810, plaintiff adds the plea of non demiserunt “ and eviction.” “ September 19th, 1811, defendants reply, “ no eviction.”
    At the trial, the defendants produced a lease from William Ewing to Vanarsdall, and relied on that alone to support the issues. The president of the court, however, charged the jury, that the issues must be proved as joined: That therefore, the avowry being by three of. the' defendants, proof of rent due to one, was not sufficient to maintain the issues on their part.
    The jury found a verdict for the plaintiff, and the record was now returned, with a bill of exceptions to the opinion of the court.
    
      J. R. Ingersoll and Sergeant for the plaintiffs in error.
    The case depends upon the nature of an avowry in replevin, and the mode of pleading practised in our courts. An avowry it is true, is in the nature of a declaration, to set' forth the defendant’s claim; but it is not nefcessary that it should be as precise and formal as a declaration in debt, as appears from the authorities referred to by Bacon. In one case a man avowed in the name of himself and his wife, for a rent charge belonging to the wife, which was in arrear before the marriage, and it was adjudged a good avowry, although the rent could not be in arrear to him and his wife,_ the marriage having not then taken place. In another case, where the defendant made cognisance as bailiff to A,.administrator of B, and it appeared that A had a right, but not as administrator, the cognisance was admitted to stand as bailiff to A, and the rest was considered surplusage. 6 Bac. Ab. 77. Avowry, K. A short entry of a plea may be filled up in any manner not inconsistent with the entry. If the avowry in this case had been drawn in form, there would have been a profert of the lease from Ewing to Vanarsdall; and Ewing being entitled to the rent, he alone must be regarded as the avowant, and the two Cooks must be considered as having made cognisance as his bailiffs. The precise abstract meaning of the words, is not to govern, in the construction of a plea of this kind, but if the whole matter set forth, amounts to an avowry, or to a cognisance, the court will construe it accordingly, so as to do justice between the parties. As to the nature and form of avowries, the counsel cited, 1 Jacob’s Law Dict. Avowry. 1 Chitty on Pleading, 531. 2 Do. 508. 512. 1 Saunders, 347, C. note 4. Cro. Jac. 282. 373. Bulst. 135. Comb. 27. 3 Dy. 256, b. 6 Bac. Ab. 81. 83. Replevin and Avowry, K.
    The plea of wore demiserunt, must be referred to the avowry; and if the avowry sets forth the lease, as it would were it formally drawn, the plea refers to the lease. The use of the plural instead of the singular number is immaterial.
    
      Meredith for the defendant in error.
    Issues were joined, 1. On the avowry. 2. On the cognisance. 3. On the plea of non demiserunt. 4. On eviction.
    The avowry was by Ewing and the two Cooks jointly. It is true it was entered shortly, but it Was perfectly intelligible, and must be supposed to contain, every thing necessary to be inserted, were it drawn at length. An avowry is in fact a declaration, by which the avowant’s claim is shown. Here the avowry was by three, and from the evidence it appeared, that rent was due to one only. It will hardly be pretended that fin action of debt for rent, by Ewing and the two Cooks, could be supported by such testimony. . Upon the same prinple, an avowry cannot be sustained. Salk. 390.
    The cognisance by Winn, as bailiff of Ewing and the Cooks, shows that they were aware of the distinction, and that they intended.to-claim the rent aS due to themselves. The plea of non demiserunt brought the demise by the three avowants, directly in question; it embraced them all,; and a demise by one only having been proved, the court below was plainly right in charging the jury, that the evidence did not support, the issues. Carth. 74. 76, c. 25, a.
    
   Tilghman C. J.

This is an action of replevin brought by Vanarsdall against William Ewing, John and Rebecca Cook, and Peter Winn. The pleadings are entered short in the usual manner. Ewing and the two Cooks avowed for rent in arrear, and Winn made cognisance as their bailiff. The plaintiff replied “ no rent in arrear,” and also, “ non demise- “ runt,” and issues were joined. On the trial the only evidence produced by the defendants was, a lease from William Ewing to Vanarsdall. The court charged the jury, that this evidence did not support the issues on the part of the defendants, and the jury in conformity to this direction found a verdict for the plaintiff. It is now contended by the plaintiffs in error, that the charge was erroneous, because it is to be understood by the pleadings, that the two Cooks intended to make cognisance and not to avow, and cases have been cited to show, that although the defendant says in his plea, that he makes cognisance, yet if the matter set forth amounts to an avowry, it shall be considered as such, although called by a wrong name. This is very true, the name is immaterial, and the whole matter appearing on the record, the court can judge of the nature of the plea, and will consider it according to its true import without regard to the name given it by the party. But there is nothing on this record which shows that the Cooks intended to make cognisance as bailiffs of Ewing. On the contrary, every thing bears the appearance of a claim of rent in their own right. The difference between an avowry .and a cognisance, appears to be understood by the defendants, because Winn, who. claimed no interest in the rent, made cognisance; all the others avowed. These short pleadings are constantly producing confusion. We have frequently made the observation to the gentlemen of the bar, and pointed out the necessity, of greater certainty. We have no right to prohibit them, and will do every thing in our power to construe them so as to promote justice. But we must not set all kind of certainty afloat, and construe .the pleadings contrary to what appears to have their intent. The most that we can do, is to suppose that they are drcmm in form, and give them effect accordingly. Now'it does appear, that all those defendants, except Winn, intended to avow for the rent, claiming it as due to themselves. They call it an avowry, and if thére could be any doubt as to their meaning, it is made plain by the issue, on the plea of non demiserunt, which can with no propriety refer to William Ewing alone, but to him and the Cooks jointly. This is the manner in which the pleadings were understood by the District Court, and I do not see how they could be taken otherwise. It is clear then, that the defendant’s evidence did not support the issue on their part. Instead of proving a demise by three persons, it proved a demise bv only one. I am therefore of opinion, that the charge of the District Court' was right, and the judgment should be affirmed.

Ye ates J.

It is said that the rules of pleading are found-

ed in good sense. So far as the pleadings give notice of the pretensions of the parties, the rules respecting them should be adhered to, in order to prevent surprise and consequent injustice. I would steer a middle course between undue laxity in practice and unreasonable refinements, where I am not prevented by settled and established law. Certain goods distrained for rent having been replevied, William Ewing in his life time, John Cook, and Rebecca Cook, avowed for rent in arrear, and Peter Winn made cognisance, as their bailiff. The plaintiff below replied, no rent in arrear, and non demiserúnt and eviction. Upon the trial, the defendants below produced in evidence a lease from the said William Ewing Vanarsdall under certain rent, and insisted that the same, without further proof, was conclusive evidence to maintain the issues on their part. The president of the court thought differently, and declared his opinion that proof of rent due to one of the avowants only, was not sufficient to maintain the issue on the avowry, but that the same must be proved as joined. The proposition is self-evident, that a lease by one man is not a lease by three. But it has been contended, that the strictest accuracy not being required in avowries, and our manner of pleading consisting of short entries on the docket, we may suppose that instead of John and Rebecca Cook being deemed,-avowants, they were really the'bailiffs of Wil liam Ewing. This, in my idea, would be an unwarrantable assumption of power, and would wholly change the relative situation of the parties, which they had before selected. The two Cools justify what they have done in the character of landlords, which has been denied by the replication of Vanarsdall, and this they were bound to prove. They might, if they thought proper, have made cognisance as the bailiffs of Ewing, or have pleaded non ceperunt. Not having done so/ they must be contented with the bed they have chosen to spread for themselves.

I am of opinion, that the judgment of the District Court be affirmed.

Brackenridge J. concurred.

Judgment affirmed.  