
    [Philadelphia,
    December 29,1823.]
    BEAUMONT against WOOD.
    IN ERROR.
    If the defendant in replevin makes cognizance as bailiff, and states that A. B. held the lands as tenant under a demise at a yearly rent and rent accrued, and plaintiff replies non iiemisit and no rent in arrear, the plaintiff may without previous notice of special matter give in evidence, that A. B. took the lands for a certain period, and paid the rent in advance.
    Error to the Court of Common Pleas of Chester county, in a replevin brought by Joseph Wood, the plaintiff below and defendant error, against George W. Beaumont, for 300 dozen of wheat and rye in the sheaff.
    The defendant below made cognizance as bailiff of Thomas MiKean, acknowledged the taking on the premises, and said, that one Benjamin Vogdes, for one year next before the 25th of March, 1820, held the lands as tenant, under a demise at the yearly rent of 300 dollars, during which time the rent distrained for accrued, which remained due. The plaintiff replied no rent in arrear, and non demisit, and issues were joined. •
    The facts were, that judgment was entered on the 6th of Jlpril, 1818, in favour of T. McKean against Jesse Vogdes and John George, on a bond and warrant of attorney, dated March 25th, 1818, in the penalty of 4666 dollars 68 cents, conditioned to pay 2333 dollars 34 cents. A ji.fa. was issued on the 13th Jlpril, 1819, returnable to May, 1819, upon which the sheriff returned, leviedon lands and condemned. A venditioni was issued to Jlugust Term, 181 % on which the sheriff returned the land and premises sold to T..M‘Kean.
    
    It appeared in, evidence that Benjamin Vogdes occupied the property during part of the year 1818, and the whole of 1819, and left it in thespring of 1820. He said after the sale, in Jlugust, that he was to pay 400 dollars for the first year, and 300 dollars for that year. When called on for the rent on behalf of M‘Kean, and told he would be indulged till after the election, he said it did not suit to pay till spring. Vogdes said he had no lease. He went into possession some days after the 25th March, 1818, and left the premises on the ■ 25th March, • 1820. Wood came to them in the spring of 1820, and had been there, ever since,
    
      The plaintiff gave in evidence an article of agreement between Thomas M‘Kean of the one part, and Jesse Vogdes and John George of the other part, dated the 5th November, 1817, to this effect: M‘Kean in consideration of 1000 dollars paid, and of the further sum of 21000 dollars to be paid, agreed on the 25th March, ensuing, to convey a messuage and plantation, &c., called Chat-ham, and the parties of the second part agreed to pay on the 25th March ensuing, 6333 dollars 33 cents, and deliver two several bonds, &c., and a mortgage; one bond for 7333 dollars 33 cents,' payable in one year from the date, apd the other for the payment of a like sum on the 25th March, 1820, interest payable half yearly, and if they should fulfil on the 25th March, their agreement and pay the money stipulated, they should take possession, and thereafter take the rent, &c., to their own use; and if on the 25th March, they failed to pay, and deliver the bonds, as stipulated, M‘Kean should have a right, if he thought fit; to annul and utterly make void the articles pf agreement, and the messuage should be entirely freed from all claim of Jesse Vogdes and John George, and the 1000 dollars should be forfeited; provided, that annulling the agreement should not preclude McKean from insisting on the penalty. And the parties bound themselves upder a penalty of 5000 dollars.
    On the 25th' March, 1818, a deed was accordingly executed, and a mortgage given.
    Evidence was offered by Jesse Vogdes to prove, that the premises were demised, by parol agreement by him and John George to Benjamin Vogdes, on the 25th March, 1818, for two years from that day, and that he went into possession, and continued in possession until the 25th March, 1820, and that the rent was to be paid on the 25th March, 181S, and was so paid accordingly, and that the said agreement was the same of which the defendant gave in evidence, by which Benjamin Vogdes was to pay. 400 dollars, for the first year, and 300 dollars for the second.
    The defendant objected to this evidence among other reasons, because this was special matter of which no notice had been given, and the court sustained the objection. The defendant tendered a bill of exceptions.
    
      J. R. Ingersoll, for the plaintiff in error.
    
      Edwards and Tilghman, contra.
   The opinion of the court was delivered by

Tilgilman, C. J.

This is an action of replevin brought by George W. Beaumont against Joseph Wood. The defendant made cognizance, as bailiff of Thomas MKean, and acknowledged the taking of .the plaintiffs’ goods, on the lands and premises of the said M‘Kean, and averred “that one Benjamin Vogdes for one year next before the 25th March, 1820, held the lands as tenant, under a demise, at th.e yearly rent of 300 dollars, during which time, the rent for which he distrained, accrued.” The plaintiff replied, no rent in arrear, and non demisit, on which issues were joined. The first thing which strikes us on these pleadings, is, an uncertainty by whom the demise to Benjamin Vogdes was made. For it is ndt said, that it was made by Thomas MKean, and from the evidence in the cause, there is reason to suppose that a demise by other persons, viz. by Jesse Vogdes and John George, was intended. The evidence on the part of the defendant showed, that the lands on which the distress was made were formerly the property of Thomas M‘Kean, who sold and conveyed them to Jesse Vogdes and John George, and took from them a judgment bond, and mortgage, for part of the purchase money. M‘Kean entered a judgment on the bond, took out an execution, levied on the land which he had sold, and purchased it at the sheriff’s sale, about the month of August, 1819. At that time Benjamin Vogdes was in possession under a lease from John Vogdes and John George, and M Kean having demanded rent of him, he promised to pay it, Benjamin Vogdes left the land in March, 1820, so that it is difficult to conceive, how a year’s rent Could be due to MKean, unless he claimed it under the lease made by Jesse Vodges and John George to Benjamin Vogdes,on the supposition, that havingpurchased all the rightof Jesse Vogdes and John George, he became entitled to the rent to accrue on the lease made by them. The plaintiff having gone through his evidence, the defendant offered to prove, that the premises were demised by parol agreement, by Jesse Vogdes and John George to B. Vogdes, on the 25th March, 1818, for the term of two years from that day, and that he went into possession ánd continued iri possession, until the 25th March, Í820, and that .the whole rent was to be paid on the 25th of March, 18Í8, and was so paid accordingly, and that the said agreement Was the Same of which the defendant gave evidence, by which Benjamin Vogdes was to pay 400 dollars for the first year, and 300 dollars for the second.” To this evidence the plaintiff objected, principally because it was special matter, of which no notice had been giyen, and the court rejected it. If the evidence was proper, under the issues which had been joined, there was no need to give special notice of it. And that it was proper, under one or the oth.er of the issues, there is no doubt. If we are to understand the demise mentioned in the defendant’s plea, to be that which was made by Jessee Vogdes and John George to Benjamin Vogdes, then the evidence was directly to the issue of no rent in arrear, because it went to prove that the rent was all paid, and consequently nothing was in arrear. But supposing that a demise made by Thomas MKean was intended, the evidence would apply to the issue of non demisit, because it rebutted the unsatisfactory evidence which had been given on that point, by the defendant, and proved, that the demise was in fact, made, not by MKean, but by Jesse Vogdes and John George. There was error therefore in rejecting the evidence, and conse(psently the judgment must be reversed, and a venire de novo awarded. When the record goes down, the defendant’s counsel will have an opportunity of amending the pleadings, so as not to leave it iii doubt, by whom the demise was made.

Judgment reversed, and a venire facias de novo awarded.  