Opinion
Fall Sessions, 1839.
Cullen, for plaintiff.
Wootten, for defendants.
REPLEVIN. "Goods replevied and delivered to plaintiff, and defendants summoned." Narr. The defendant, Moore, made cognizance as the bailiff of Elliott, who avowed the taking "for one year's rent, to wit: one hundred dollars, due from Elias Taylor^ the plaintiff, to Meshack Elliott, the avowant, as assignee of Nehemiah Redden, on a certain lease in writing dated June 10, 1836." Pleas, non dimisit; and rien in arrear.
In support of his avowry, the defendant offered in evidence a, lease from Redden to Taylor, dated June 10, 1836, for one year from 1st January, 1836, at eighty-seven dollars and fifty cents rent per annum.
The evidence was objected to as not supporting the avowry; which must state the terms of the contract truly. (2 Leigh's Nisi Prius 1332.)
To which it was replied, that the avowant was not bound to state the exact amount of the rent in his avowry. ( Dig. 364; 2 Selwyn Nisi Prius 374.)
The variance is fatal. The avowry is on a special contract for one hundred dollars per year rent, and the lease offered proves a renting at eighty-seven dollars and fifty-cents per year, which is a different lease from that stated in the avowry. The plea of non dimisit puts the lease in issue. (2 Leigh, 1333; 1 Chitty Pl. 304; 2 Saund. Pl. Ev. 767.)
Doubtless a general avowry would be good under our act of assembly; but where a party undertakes to set out a special contract in his avowry, he must set it out truly as to its terms, and especially as to the amount of rent.
The lease being ruled out plaintiff had a verdict, which the court afterwards set aside on the motion and affidavit of Mr. Wootten, and on proof being made that there was an agreement between counsel, that this case should he tried on its merits; the consideration for which agreement was the releasing by Mr. Wootten, of an advantage he had on demurrer at the last term.