It was necessary to avow as the defendant has done, by stating a seisin in some person, and deducing title from that person to the avowant; 1 Johns. R. 384; 10 Johns. R. 372; 5 Cowen, 340; avowries for rent having been, heretofore, in this state, governed by the common law and not by the statute, 11 Geo. 2, ch. 19, § 22. Until the recent revision of our statutes, that section has never been enacted here. 2 R. S. 529, § 41. It was also necessary for him in his avowry to show that there was a reversionary interest remaining in him after the termination of the demise to the plaintiff. 16 Johns. R. 159. 2 Wils. 375. In the first of these cases, Prescott v. DeForest, it was held that a person who had hired a house for a year, and let a part of it for the same term, could not distrain upon his lessee for rent in arrear, without a special agreement for that purpose; in the latter case, - v. Cooper, it was said by the court: “ If a man hath a term for years and grants all his estate of the term, rendering certain rent, he cannot distrain if the rent be in arrear.” These averments being necessary were traversable; the plaintiff might have taken issue upon the seisin of Ferris or his demise to the defendant; but by pleading that Spendlove did not hold or enjoy the premises as tenant thereof to Bloomer, he has chosen to traverse that fact in particular. The object of special pleading is to reduce to specific points the matters in dispute; and when a number of facts are averred in a pleading on one side, and the party-answering denies but one of such facts, the others are admitted; and even where the party answering protests the facts not traversed, such protest admits the facts in such suit, but the protest prevents the party protesting from being concluded by his admission from contest-*451i»g those facts in some other suit. According to these principles, every fact in the avowry not traversed by the plea is admitted, and of course need not be proved. The plea of non-tenure admitted the seisin in Ferris, and the demise by Ferris to Bloomer, and only denied, that Spendlove held as tenant to Bloomer ; such tenancy, therefore, was the only fact in issue. The tenancy of Spendlove was proved, and the defendant had then proved all that was necessary on his part.
The only other plea was riens in arrere. “ This plea,” says Mr. Justice Buller in Hill v. Wright, 2 Esp. N. P. Cases, 669, “ admits the title of the defendant as stated in the avowry.” It may admit the title as stated consistently with the language of the plea, that there is no rent due; and when connected with the plea of non-tenure, seems to be adapted to the state of the case after the tenure shall have been proved. If the object was to deny the tenancy only, that was effectually done in appropriate language by the former plea; but admitting the tenancy, the plea may still be true; the rent may have been paid, or something may have happened since the demise, the effect of which was to discharge the tenant from the payment of rent. In Lewis v. Payne, 4 Wendell, 427, we held that an eviction might be shewn under this plea, which suspended the right of the landlord to his rent until the possession was resorted. This plea was there said to be the general issue to an avowry ; it was so for that case ; but it would have been more correct to have used the words from the report of Horne v. Lewise, 1 Ld. Raym, 614, “ Reins in arrere is the proper plea in bar of an avowry, and is quasi a general issue.” The general issue, strictly speaking, puts in issue every material averment in the pleading to which it is an answer. But there are pleas called the general issue, which do not have that effect: thus, non cepit in replevin, puts in issue the taking only and not the merits of the action; non est factum puts in issue the execution of the deed only, and the breaches are admitted ; so in this case, reins in arrere admits that there has been rent accruing, and of course admits the tenancy as stated in the avowry. In my opinion, therefore, the defendant in the court *452below had sustained his case, and should have had a verdict jn ^¡g favor Up0n the evidence produced.
Judgment reversed. Venire de novo to be awarded by the New-York common pleas, costs to abide the event.