Phipps v. Boyd
Supreme Court of Pennsylvania
Error to the District Court of Philadelphia. This was an action of replevin, issued May 6th 1864, by Alfred Phipps and Virginia E. his wife, in her right, against Daniel Boyd, Jr., and Joseph H. Smile. On the 31st of August 1863, William C. Johnson leased to Phipps a house in West Philadelphia for $250 per annum, payable monthly.
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Error to the District Court of Philadelphia. This was an action of replevin, issued May 6th 1864, by Alfred Phipps and Virginia E. his wife, in her right, against Daniel Boyd, Jr., and Joseph H. Smile. On the 31st of August 1863, William C. Johnson leased to Phipps a house in West Philadelphia for $250 per annum, payable monthly. “ The said house and ground to be finished on the 10th day of September next, at which time possession will be given to Alfred Phipps; and if the house is not completed on the aforesaid date possession shall be given, and the rent shall not commence until such time…
1Opinion of the Court
The opinion of the court was delivered, by
Strong, J.
The first three assignments of error are founded upon a supposed variance between the avowry and the evidence given in support of it. To the avowry the plaintiffs had pleaded non demisit, and it was therefore incumbent upon the- avowant to prove the demise as laid. If the evidence did not tend to prove such a demise, it was inadmissible, or if it proved none, or a different one from that alleged in the avowry, the plaintiffs were entitled to the instruction they asked, that the rent reserved should be accurately stated. The rent reserved…