No instrument in writing not under seal, can be pleaded as an estoppel. The defendant, therefore, ought not to have replied this unsealed lease, by way of estoppel, but should have taken issue upon the fact, that the premises were his freehold. If one gives an acquit-' tance under his hand and seal, for rent, he shall be estopped to demand rent due at a day before. But, if the acquittance is not under seal, it is not an estoppel, but evidence merely. (5 Bac. Mr. 432. Comb. 59.) The form of pleading an estoppel, is to rely on the deed as an estoppel, and pray judgment that the party be estopped, or not admitted to deny the facts which the deed purports, without demanding judgment, si actio, &c. (Rawlyn's case, 4 Co. 53.)
The objection as to a want of venue of the demise, is repelled by the fact, that the plaintiff answered over to the merits, before he demurred; the want of venue, in the avowry, was thereby waived. In Thomas v. Rumsey, (6 Johns. Rep. 26.) it was held, that a venue was not necessary in a plea. The venue laid in the declaration, draws to it the trial of every thing that is transitory. Nothing could he more transitory than the making of the lease. This ground of demurrer, therefore, is not mairitainable; but the first objection is fatal to the replication.
There must be judgment for the plaintiff, on the demur-Ter, with leave to the defendant to amend.
Judgment for the plaintiff.