Sherman v. . Brampton

1 N.C. 692

Opinion

The court agreed that if the parties had come *to issue, notwithstanding that the jury had found that the defendant had demised the land on another day; still if it had been before the trespass, it would have been well. But in an ejectione firmae, if the plaintiff declares on a demise made such a day, and it is found that the demise was made on another day, but before the ejectment, it is bad. The parties have not joined issue, but the defendant pleaded a lease made on such a day and at such a place by the defendant, who traverses that he did not do it on such a day and and at such a place. Now he had made the time and place matters of substance; for a lease made on another day is not the same lease. And you may make the time and place material. As in trespass, a release of all actions discharges all trespasses before the date, but not those committed after; and there the day is material.Adjournatur. Bendl., 159.