Davis v. Shoemaker

The opinion of the -court was delivered by .Gibson, C. J. The act of 1713, -is copied nearly word,for word from the 21 Jac. 1, c. 16; and, although the letter exténds to all actions of debt for rent, it has been determined that the statute is a ■ bar to the recovery of rent reserved only-on leases by parol; a lease by indenture being équal to a specialty. (Hutt. 109, pl. 2.) The same principle is admitted in Hodsden v. Harridge, (2 Saund. 66.) And this construction is, no doubt, in accordance with the actual intent of the legislature; for it would have been nugatory to protect the lessee from ah action of debt, and leave him exposed to' an action of covenant, clearly maintainable on - the indenture, to which the statute does not extend. The remaining point is equally simple. It is settled, -that in debt for rent, the- plaintiff may state the substance of the demise without declaring-on the deed; and where it is doubtful whether the lease were by indenture or parol, it is usual to do so, adding a count for use and occupation by way of further caution. (2 Chitty on Plead. 223, note d.) And to such a declaration the plaintiff may plead nil ■ [141] debet; or, as no estoppel appears of record, nil habuit in, tenementis, which is prima facie a good plea, and the plaintiff must-thereupon reply that the lease was by indenture; for if he'replies a sufficient estate in the premises generally, he waives the benefit of the estoppel. (1 Saund. 276, note 1.) Here the defendant might have given the statute in evidence under nil debet, (Salk. 278, pl; 1;). but, having pleaded it, the plaintiff had no other course than to reply that the demise was by deed. '. The demurrer to the replication was therefore properly overruled. Judgment affirmed.