An averment of a demise for three years is not supported by
proof of a lease for one year certain and two years further
possession on the same terms by consent of the landlord.
The plea of no rent arrear admits the demise as laid in the
The court is bound to give judgment for double rent under the
statute of Virginia.
Avowry by the defendant, stating that Crammond was seized in fee
of the locus in quo,
and demised the same to the plaintiff
for the term of three years at a certain rent, and that because
$111.67 of the rent were in arrear and unpaid, he acknowledged the
taking as bailiff of Crammond, &c., and prays judgment for
Plea -- ought not to avow, &c., because he says that the
said sum of $111.67 of the rent aforesaid, at the time when,
&c., was not in arrear and unpaid to the said W. Crammond, nor
was any part thereof in arrear, &c., and this he prays may be
inquired of by the country, &c.
On the trial the defendant produced a letter from the plaintiff,
to the defendant's agent agreeing to take the house for one year at
the rent of $120, payable half yearly, and proved by witnesses that
the plaintiff took the house upon the terms mentioned in the letter
and remained in possession three years; that at the end of the
first year no new express agreement was made, but the plaintiff
continued in possession with the consent of the defendant's agent.
The letter did not contain any agreement for renewing the lease at
the end of the term by consent of the parties; whereupon, at the
prayer of the defendant, the court below instructed the jury that
if they believed from the evidence that the plaintiff took the
house for one year by his letter, and afterwards, with the consent
of the defendant's agent continued to hold the house for two years
longer under the letter and without any new agreement, then the
defendant is entitled to recover on his avowry, but that if the
terms of the letter were relinquished and a new agreement made for
the two years, the avowry was not supported by the evidence.
Page 8 U. S. 300
The plaintiff also produced to the court, after the verdict was
rendered for the rent in arrear as stated in the avowry, the
replevin bond given by the plaintiff, as evidence to satisfy the
court that the defendant had distrained for more rent than he had
avowed for and more than the jury had found in arrear, and objected
to the rendition of judgment for double rent under the statute. But
the court overruled the objection and rendered judgment for double
the rent found in arear by the verdict.
To which opinions of the court the plaintiff excepted, and the
verdict and judgment being against him, he brought his writ of
Page 8 U. S. 301
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
In this case, two errors are alleged by the plaintiff in
1st. That the circuit court misdirected the jury.
Page 8 U. S. 302
2d. That judgment for double damages ought not to have been
rendered on the verdict.
1. The avowry, which sets forth the title under which the
distress was made, states a lease for three years certain. The plea
to this avowry was "nothing in arrear," and on this plea issue was
joined. At the trial of the cause, the avowant gave in evidence a
lease for one year certain and a subsequent possession for two
years. On motion to instruct the jury that this lease did not
support the avowry, the court said that if the jury should be of
opinion that the subsequent possession was under the original
contract and without any new agreement, then the avowant was
entitled to recover; otherwise not. The jury found a verdict for
The lease stated in the avowry is obviously a different lease
from that which was given in evidence. A lease for three years is
not a lease for one year. But it is contended that a subsequent
possession without any new express agreement amounts to an
extension of the original lease, and for this Bacon's Abridgment
and a dictum
of Judge Buller in the case of Birch v.
1 Term 378, have been cited. But those cases do not
prove the point they were supposed to establish. In those cases,
the original terms of the lease admit of the extension which was
afterwards made by consent of parties. The lease was made for one
year, and afterwards from year to year as long as both parties
should please. The principle of continuance is introduced into the
original contract, and the occupation for three years is evidence
that the circumstance had occurred by force of which, the contract
should be a lease for three years. But in this case, the original
contract contains no principle of continuance. It is for a limited
time, and can only be extended by a new contract, either express or
implied. The lease, therefore, offered in evidence does not support
But a question on which the Court has felt more difficulty is
this: does the plea admit the demise, or is the avowant bound to
prove it? If the plea admits the demise, then, notwithstanding the
variance, the verdict is right and
Page 8 U. S. 303
the court has not erred in that part of the opinion which is
against the party taking the exception.
The issue gives notice to the parties of the point which is to
be tried and which the testimony must support. That which is
admitted by the pleadings need not be proved. If the plea in this
case controverts the allegation in the avowry that the tenant held
under a lease for three years, reserving the rent stated to be
reserved, then the avowant would be bound to prove the demise as
laid. But if the plea admits the demise, then the avowant is not
bound to prove it. The plea is that the sum distrained for of the
rent aforesaid (that is, of the rent claimed under the lease stated
in the avowry) was not in arrear and unpaid, nor was any part
thereof in arrear and unpaid at the time when the distress was
made, as the avowant in his avowry hath alleged.
This plea avers the single proposition that the rent was not in
arrear when the distress was made, and it is this averment alone
that the party making the distress is to meet. The averment that
the rent claimed in the avowry was not in arrear when the distress
was made admits the contract by which the rent might accrue, and
only denies that anything, at the time of the distress, remained
due upon that contract. Upon principle, then, it would seem that
the plea had dispensed with proof of the demise laid in the avowry,
by admitting it.
No case has been found in which the point has been expressly
decided. It is said in Buller's Nisi Prius 59, "If the plaintiff
plead riens arrere
in bar to an avowry, he cannot upon
such issue give in evidence nontenure;" consequently the defendant
cannot be required to show the tenure, for if it was necessary to
show it, the tenant would be at liberty to produce opposing
It is also laid down in Buller 166 that in covenant for
nonpayment of rent, riens in arrear,
or payment at the day
is a good plea, but riens in arrear
Page 8 U. S. 304
would not be a good plea, and the reason appears to be that
riens in arrear
generally admits the breach laid in the
declaration, and that the rent was not paid on the day. This
principle is decided in King v. Saville,
Brownlow. Nothing in arrear on the day on which the rent is stated
to have accrued seems to be considered as equivalent to payment on
the day, but nothing in arrear on a subsequent day admits that the
covenant was broken, and consequently admits the covenant. It is
not a good plea, because it admits the right of the plaintiff to
recover damages. This furnishes a strong argument in favor of the
opinion that nothing in arrear on the day when the distress was
made admits that the rent accrued as stated in the avowry.
The case of Warner v. Theobald,
Cowper 588, was an
action of debt for rent, by an assignee against an assignee. The
plea of riens in arrear
was demurred to, and consequently
the question to be decided by the court was not what the plea
admitted, but whether it was a bar to the action. Mr. Buller
objected to this plea because the plaintiff could not come prepared
to know what it would be necessary to prove. The defendant might
object to the assignment or give in evidence payment before or
after action brought.
In answer to Buller, Wood said,
"The form of the plea is nil debet,
in the present
tense. But in this case riens in arrere
is a fairer plea
than nil debet,
because nil debet
puts the whole
declaration in issue, whereas this confines the question to the
single fact whether such rent was due."
In giving his opinion in support of the plea, Lord Mansfield
certainly had not in view the question now under consideration, for
he uses expressions which would apply differently to that question.
He says, "saying nothing is due is the same as if he had said
" and immediately adds
"Besides, it is a more favorable plea for the plaintiff. He must
then have applied the first assertion solely to the sufficiency of
the plea as a bar, for it could not be a more favorable plea for
the plaintiff if it contested the whole declaration
Page 8 U. S. 305
and admitted nothing, as is the case with nil
He concludes with observing, "If the rent was due, and is not at
the time of the plea, it could not have ceased to be due but by the
plaintiff's accepting it."
This case appears to the Court to decide nothing further than
that the plea pleaded was a good bar to the declaration in debt for
rent, and to leave the question how far it admits the demise laid
in the avowry open for consideration.
It is thought important in the inquiry that the law appropriates
a different plea, which controverts the demise, if the tenant means
to contest it -- the plea of non demisit.
The Court is of opinion that the plea admits the demise and that
there is no error in the instruction given to the jury which is
injurious to the party taking the exception.
In the judgment for double damages, there is no error. The law
directs it positively.
Judgment affirmed with costs.