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 know it on such a day and at such a place. Now he has 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.
Sherman v. Brampton, 1 N.C. 92, 1 Mart. 92 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 92, 1 Mart. 92
Sherman vs. Brampton.
Pasch. 1 Car.
TRESPASS. The defendant pleaded in bar, that such a one was seized of the place where &c. and leased it for ten years to the defendant, and gives colour to the plaintiff, and justifies by this demise. The plaintiff replies, that after this demise and before the trespass, the defendant assigned the place, &c. for years to the plaintiff, and on such a day the defendant comes and maintains the bar, and traverses absque soc that he assigned on such a day, and at such a place modo et forma, as is alledged, and thereupon the plaintiff demurred in law generally.
It was argued by the defendant’s counsel, that the rejoinder is bad and out of the statute of 27 El. 5. p. 332, and the demurrer is well, for he ought not to traverse the time and place, for it is not material when or where the assignment was made; and in this case if the issue had been *93joined and found for the plaintiff, it would have been aided by the statute of Jeoffails, for there is no necessity of any place, but the addition of such a place and time is not requisite; for every issue ought to be upon some thing material. But in certain cases the place is material, as Plowd Patridge’s case, the declaration mistook the place and day of the fitting of the Parliament, and it was not helped by the statute of Jeoffails. Dr. Leyfeld’s case, 10 Rep. 88. 94. So here the time and place are not matter of substance but of form, as in 30 E. 3. 5. And in 33 H. 6. there was an information against A. B. for buying lambs inter sheering-time and he pleaded that tali anno he did not buy of S. D. contra forman slatuti, prout &c. It is no issue, for the substance is not whether he bought of S. D. or any other.
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 firmæ, 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.