Green v. Moody , 1 N.C. 196 ( 1793 )

Curia. It cannot be intended here: for it is said virtute. cujus the lessor entered. He could not enter by force of the demise, until after the day.

Thin, 7 E. 6, Dyer 89. Clifford’s case, is exactly in point.

Jones, J.

There is a difference between an ejectione firmæ by a lessee against a stranger, and debt by the lessor against the lessee for the rent. For an ejectione firmæ is not maintainable, unless on the possession of the lessee. But debt against him lies on the privity of the contract; because he cannot plead that he did not occupy the land virtute dismissionis. Therefore even if it, should be intended that he entered before the day and was a diffeisor, and so remained nicer the year, yet debt lies against him for the rent, on the contract.

Thin. The implication does not go to the declaration, therefore the virtute cujus does not serve. And if he be a diffeisor, debt does not lie against him, any more than in Rushden's case 24 H. 8. Dyer 4. Lessee for years made a feoffment, debt does not lie against him for the rent.

All the court, was against the Serjeant: land afterwards being informed that the defendant had taken out a chancery process against the plaintiff, gave judgment for the plaintiff, and told to Thin, Serj. he might bring error, if he pleased. Godb. 384.