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solemnities must be shewn to the Court. But this seems to be erroneous, for we have seen that under the plea of nil debet, a release may be given in evidence; and a release may be given in evidence under any general issue (a).

A release of all demands will not operate to release rent before it becomes due, for then there is no demand; but it will release rent then due (b).

Therefore if a man let land to another for a year, yielding the rent at Michaelmas, and before Michaelmas the lessor release to the lessee all actions, yet after the Feast the lessor may have his action for rent, for the release does not discharge it; for the rent is no debt till the day on which it is payable, as it is payable out of the profits of the land, and if the lessee be evicted before the day, no rent is due; but the lessor may discharge the lessee of the rent before the day by a special release (c).

If the defendant insist that the lease declared on is not the plaintiff's, the plaintiff must shew that it was made by one who had authority from him to execute it in his name, and the authority need not be produced. But the lease must be made and executed in the name of the principal (d).

In debt for rent by husband and wife, upon a lease by her and her first husband, it is a good plea that her first husband was sole seised, and that she had nothing in the land (e).

As to the evidence on the part of the defendant, if he plead nil debet, he may give the statute of limitations in evidence; for the statute is in the present tense, and so makes it no debt at the time of pleading (ƒ).

So, upon the same issue, he may give entry and expulsion in evidence (g).

The jury, besides finding the debt, ought to give damages for the detention of it, which are usually one shilling, though under particular circumstances they may be more.

In debt for rent money may be brought into Court (b).

Though the debt is by specialty, yet if it depend upon something extrinsic, as rent for example, the plaintiff may have a verdict for what is really due, though more is demanded.

Therefore in an action of debt on a lease for rent, at 27. 135. a-year, if the plaintiff declare for 100/, due for so many years' arrear, and it appear that a mistake has been made, and that he has declared for 81. too much, yet after verdict if he release the 87. he shall have judg

(a) Dyer, 28. 12 H. 8. 1. Gallaway v. Susach. I Salk. 284. Cecil v. Harris. Cro.

Eliz. 140.

(b) Stephens v. Snow. 2 Salk. 578. (c) Co. Lit. 292. b.

(d) Bull. N. P. 177.

(e) Brereton v. Evans. Cro. Eliz. 700.

(f) Anon. Salk. 278.

(g) Bull. N. P. 177.

(h) I Tidd's Pract. 482. 562.

ment for the residue. So, if he demand more than upon his own shewing is due, he may, after demurrer, remit the overplus, and enter judgment for the rest (a).

But as a sum certain is always claimed, the verdict must go to the whole of it; that is, if the jury find part to be due, they must find nil debet as to the rest (b).

If there be judgment against two, and one of them die, the plaintiff may have execution against the survivor (c).

Of Debt on Bond, for, &c.-In an action for debt on bond for performance of covenants, the breach must be as particular as the covenant (d).

So, it was held, that the defendant in pleading to such action covenants performed, must shew the indenture from the counterpart (e). However, as to such particularity being requisite vide postea.

In debt on bond to perform all covenants, &c. a breach cannot be assigned for non-payment of rent, without shewing a demand, except performance be pleaded (ƒ).

A demurrer to a breach of covenant after plea of covenants performed confesses the breach, and contradicts the plea (f).

Yet to a plea of performance to debt on bond for breach of covenants, a replication of non-payment of rent, without stating a demand, is good; for a denial of such demand would have been a departure from the plea (g).

Where performance is pleaded, and matter of excuse is afterwards set forth in the rejoinder, it is a departure; it should have been pleaded in bar (b).

SECTION III. Of the Action of Covenant, where the Lease is by Deed.

An action of covenant also lies by the landlord for the recovery of his rent, if the demise be by deed; for covenant is an action that lies for the recovery of damages for the breach of any agreement entered into by deed between the parties (i); but the agreement must always be by deed, though whether it be indenture or deed-poll it equally lies (k).

If the agreement be by indenture, it is sufficient in order to maintain this action against the covenantor that he has sealed it and de

(a) Martin v. Monke. 5 Mod. 212. S. C. 12 Mod. 93.

(6) Co. Lit. 227. a.

(6) Edsar v. Smart. Sir T. Raym. 26. (d) Tibbs v. Clow. 11 Mod. 312.

(e) Lady Cook v. Remington. 6 Mod. 237.

(f) Speccot. v. Sheres. Cro. Eliz. 828-9. (g) Chapman v. Chapman. Cro. Car. 76. (b) Arran v. Crispe. 1 Salk. 221.

(i) Esp. N. P. 266.

(4) F. N. B. 145. L.

livered it to the covenantee, though the covenantee never sealed it (a).

Neither the word "covenant," nor any particular form of words, is necessary to constitute a covenant in deed; for any form of expression under the hand and seal of the parties, importing an agreement, will support this action, as amounting to a covenant (b).

Thus in the case of a lease of lands, in which are the words " yield"ing and paying" so much rent, this is an agreement for the payment of rent, which amounts to a covenant, and this action lies for the non-payment (b). So, if the lease be, yielding such a rent, free and clear of all manner of taxes, charges, and impositions whatsoever, covenant lies if the lessee do not pay the whole rent discharged of all taxes, before or afterwards imposed (c).

The covenant to pay rent is absolute, and if the tenant sustain any injury, he may have his remedy, but cannot set it off against the demand for rent (d).

As where in covenant for a year's rent, from Michaelmas 1725 to 1726, the defendant shewed upon oyer of the lease, that he as lessee by covenant was bound to repair in all cases except fire, and then pleaded that before Michaelmas 1725 the premises had been burned down, and not rebuilt by the plaintiff during the whole year, so that he had no enjoyment for the whole time claimed: on demurrer, the plaintiff had judgment notwithstanding (d).

Respecting executors and administrators, as in debt so in covenant for rent incurred after the death of the lessee, the lessor has his election to charge the executor either as executor, in which case the judgment must be de bonis testatoris, or as assignee without naming him executor, but stating generally in the declaration, that the estate of the lessee in the premises lawfully came to the defendant, in which case the judgment shall be de bonis propriis (e).

The assignce of a term is bound to perform all the covenants annexed to the estate; as if A. lease to B. and B. covenant to pay rent during the said term, and B. assign to C., C. is bound to perform the covenants during the term though the assignee be not named; because the covenants run with the land, being made for the maintenance of a thing in esse at the time of the lease made (ƒ).

If a tenant, who is chargeable with the rent, assign over his interest in the land, the assignee is chargeable with the penalty for arrears incurred in his own time (g).

Also, if a man lease for years, and the lessee covenant for himself

(4) Foster v. Mapes. Cro. Eliz. 212.

(6) Esp. N. P. 267. Chancellor v. Poole. Doug. 765-6.

(c) Giles v. Hooper. Carth. 135.

(d) Monk v. Cooper. 2 Stra. 763. Belfour v. Weston. 1 T. R. 310.

(e) Jevens v. Harridge. 1 Saund. R. 1, n. 1.

(f) Bac. Abr. tit. Covenant. (E. 3.)
(g) Thinn, v. Chomley. Cro. Eliz. 383.

and his assigns, to pay the rent so long as he and they shall have possession of the thing let, and the lessee assign, the term expires, and the assignee continues the possession afterwards: an action of covenant will lie against the assignee for rent behind after the expiration of the term, for though he is not an assignee strictly according to the rules of law, yet he shall be accounted such an assignee as is to perform the covenants (a).

As to the question how far actual possession is necessary in order to enable the lessor to maintain covenant against the assignec, it has been decided that by the assignment the title and possessory right pass, and the assignee becomes possessed in law and it is immaterial whether it be an assignment of the usual kind, or by way of mortgage; for the principle upon which the assignee is liable is in respect of his having the legal estate. Therefore, a mortgagee though out of possession was held liable as assignee, notwithstanding; and Lord Kenyon declared that he would overrule the case of Eaton and Jacques without the least reluctance (b).

But an assignee is only liable while in possession if he assign over before a breach; therefore though his assignee has not taken possession, yet he (the first assignce) is not liable to any action of covenant (c).

Thus, where the defendant was the assignee of the original lessee, and covenant being brought against him for rent reserved on the lease, he pleaded, That before the rent became due he had assigned all his interest in the premises to one Rigg, who, by virtue of such assignment, entered and was possessed: the plaintiff replied, that at the time when the rent became due, the defendant remained, and continued in possession absq. hoc. That Rigg had entered, &c. and on demurrer it was held, that the assignment being admitted, the actual possession was not sufficient to charge the first assignee, the possession in law being in the second assignee by virtue of the assignment (d).

So also, the assignee of a term declared against as such, is not liable for rent accruing after he has assigned over, though it be stated that the lessor was a party executing the assignment, and who agreed thereby, that the term, which was determinable at his option, should be absolute (e).

But an action of covenant cannot be maintained against an underlessee; for it is clearly settled, and is agreeable to the text of Littleton, that the action cannot be maintained, unless against an assignee of the whole term (ƒ).

But the lessee being a party to the original contract, continues al

(a) Bac. Abr. tit. Covenant (E. 3.)

(5) Stone v. Evans. ante 84.

(e) Taylor v. Shum. 1 Bos. & Pul. 21.

(d) Walker v. Reeves. Doug. 461. n. I.

(e) Chancellor v. Poole. Doug. 764. (f) Holford v. Hatch. Doug. 183-7. Exton v. Jacques. Doug. 455-9. Stone v. Evans, supra.

ways liable, notwithstanding any assignment (a); for it is extremely clear, that a person who enters into an express covenant in a lease continues liable on his covenant notwithstanding the lease be assigned over (b).

For the lessee has from his covenant both a privity of contract and of estate; and though he assign, and thereby destroy the privity of estate, yet the privity of contract continues: and he is liable in covenant notwithstanding the assignment (a). But the assignee comes in only in privity of estate, and is therefore liable only while in possession; that is, whilst he has the legal estate, except in the case of rent, for which, though he assign over, he is liable as to the arrears incurred before (it is said) as well as during his enjoyment; and such assignee was made liable in equity, though the privity of estate was destroyed at common law (d).

Covenant lies against the assignee of a lessee of an estate for a part of the rent; as in such case the action is brought on a real contract in respect of the land, and not on a personal contract: and in case of eviction, the rent may be apportioned, as in debt or replevin.-But it is otherwise in covenant against the lessee himself, who is liable on his personal contract (e).

The Declaration. With respect to the pleadings on the part of the the plaintiff, the declaration in an action of covenant should set out expressly that the covenant was made by deed. Per scriptum factum apud W. concessit, does not import a deed; neither does an allegation that the party covenanted per quoddam scriptum: and if the instrument. be set out upon error brought, and conclude with " in witness whereof, I have hereunto set my hand and seal," it will not make good this defect (f).

This action being founded on a deed, the plaintiff need not set forth more than that part which is necessary to entitle him to recover: if he state what is impertinent, it is an injury to the other party, and may be struck out and costs allowed, upon motion. When it is said that the plaintiff need only set forth that part of the deed on which his action is founded, it is not meant that even that is necessary: for he is not bound to set forth the material part in letters and words; it will be sufficient to state the substance and legal effect; that is shorter, and not liable to mis-recitals and literal mistakes: but what is alleged should be proved (g).

The proper mode, therefore, of declaring in covenant, is to set out that, by indenture, certain premises therein mentioned were demised, without stating them particularly, subject among other things to a proviso, setting out the substance of the covenant, and the breach (b).

(a) Eaton v. Jaques. Doug. 455-460. (b) Auriol v. Mills. 4 T. R. 94-8.

(d) Bac. Abr. tit. Covenant. (E. 4.)

(e) Stevenson v. Lambard. 2 East's R. 575.

(f) Moore v. Jones. 2 Str. 814.

(g) Aleberry v. Walby. 1 Str. 230. Bristow v. Wright. 665-7.

(h) Dundass v. Weymouth. Cowp. 665.

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