ASSUMPSIT upon a written agreement, but not under seal, by which the defendant agreed with the plaintiff to rent certain premises in the town of Milford, and to repair the same at his expense, for the term of five years commencing January 1st, 1865, and ending January 1st, 1870.
Lofland, for the defendant, after the plaintiff had proved the agreement and the amount demanded under it and closed his case, moved a nonsuit, because it was not a demise by deed or a contract or agreement to rent under seal, and, therefore, under the express terms of the statute, it was but a renting at first for one year, and which would be presumed in law under the facts proved, to have been but a renting from year to year, after that, so long as the defendant continued to hold the premises. Rev. Code 421, secs. 1, 2, 3. And yet in every count in the declaration the plaintiff had alleged the agreement and specially declared upon it as a demise or renting for the term of five years to be complete and ended, commencing on the 1st of January *Page 315 1865 and terminating on the 1st of January 1870, which it could not be in law. The variance between the proof and the demise declared on was, therefore, fatal.
Draper, for the plaintiff, replied.
By the Court. Judgment of nonsuit must be entered.