Taylor v. Moore Elliott

The variance is fatal. The avowry is on a special contract for one hundred dollars per year rent, and the lease offered proves a renting at eighty-seven dollars and fifty-cents per year, which is a different lease from that stated in the avowry. The plea of non dimisit puts the lease in issue. (2 Leigh, 1333; 1 Chitty Pl. 304; 2 Saund. Pl. & Ev. 767.)

Doubtless a general avowry would be good under our act of assembly; but where a party undertakes to set out a special contract in his avowry, he must set it out truly as to its terms, and especially as to the amount of rent.

The lease being ruled out plaintiff had a verdict, which the court afterwards set aside on the motion and affidavit of Mr. Wootten, and on proof being made that there was an agreement between counsel, that this case should be tried on its merits; the consideration for which agreement was the releasing by Mr. Wootten, of an advantage he had on demurrer at the last term.