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ceased to be due, but by the plaintiff's accepting it; and if so, he waives the action, though it was well brought at the time (a).
The defendant may also plead payment at or after the day; for acceptance of rent may be pleaded in bar to debt for rent, though not to a recovery in covenant (b).
If the defendant plead a tender on the land at the day, he must make zprofert of the money (c).
Where the plaintiff gave a note of hand for rent in arrear, and took a receipt for it when paid, the defendant afterward distrained for the rent, and the plaintiff brought trespass: it was holden, that notwithstanding this note, the defendant might distrain ; for it is no alteration of the debt till payment (d).
So, if a landlord acept a bond for rent, this does not extinguish it, for the rent is higher, and the acceptance of a security of an unequal degree is no extinguishment of a debt. Bat a judgment obtained upon a bond would be an extinguishment of it (d).
Entry and eviction of the whole or any part of the premises demised, is a good plea in bar to an action of debt for the rent.
It must be a tortious entry and eviction, or expulsion, to occasion a suspension of the rent; a plea that states a mere trespass will not be sufficient (e): for if the lessor enter by virtue of a power reserved, or as a mere trespasser, yet if the lessee be not evicted, it will be no suspension of the rent (f).
Therefore, where the lessee pleaded in bar that the lessor entered on the premises and broke and pulled down the ceiling of a summerhouse and tore up the benches, whereby the lessee was deprived of the use thereof, without any eviction being stated, it was held to be bad (e).
Debt was brought upon a lease for years of land in D.-for rent arrear for a year and a half at the Annunciation, 19 J. 1. The defendant pleaded, and confessed the lease and reservation; but further pleaded, that the lessor and all those whose estate, tsfc. had common in ten acres in E. always for their beasts levant et couckant upon the said tenements, every year after corn sown, from August 7, until the corn reaped and carried away; and that before any rent was due, the lessor inclosed the said ten acres, wherein he ought to have had his common, with hedges and ditches, and ejected him, so as he might not use his common, and thereby his rent was extinct: whereupon it was demurred (among other objections) that the land inclosed is not alleged to be sown with corn; otherwise, by his prescription, he is not to have common, and the Court held that the plea was ill (g).
(«) Warner V.Theobald. Cowp. 588-jgo. I (d) Bull. N. P. l8i.
(i) Arthur v. Vanderplank. 7. Mod. (r) Huntv. Cope. Cowp. 141.
198. th BuI1- N- p- l77
(c) Brownlow v. Hewley. 1 Ld. Raym.82. ] (f) Sanderson v. Harrison. Cro. J«c. iff"
The plea must state an eviction orjsxpulsion of the lessee by the lessor, and a keeping him out of possession until after the rent became due; otherwise it would be bad (a).
In debt for rent, it is optional for the defendant to plead the entry and expulsion by the plaintiff, or to give it in evidence upon nil debet (b).
Infancy is another good plea in debt for rent: but a lease made to an infant is not void, but voidable only; and if it be beneficial to him he is liable to an action for the rent reserved (c).
Therefore, where to debt for rent, the defendant pleaded infancy at the time of the lease made; on demurrer, the Court held that the lease was voidable only at the election of the infant, manifested by waiving the land before the rent-day came; but he not having done so, and being of age before the rent day came it was deemed an election, and the plaintiff had judgment (d).
A set-off may also be pleaded to a general issue in this action. Touching this plea, it was first given by stat. 2 G. 2. c. 22. which enacts, That where there are mutual debts between the plaintiff and defendant, or if either party sue or are sued as executors or administrators, where there are mutual debts between the testator or the intestate and the other party, one debt may be set off against the other, and such matter given in evidence on the general issue, or pleaded in bar; but if intended to be given in evidence on the general issue, notice must be given of the particular sum intended to be set off, and on what account it has become due.
The stat. 8 G. 2. c. 24. further enacts, That mutual debts may be set off against each other, notwithstanding such debts were of different natures, unless in cases where either of the debts accrued by reason of a penalty contained in any bond or specialty, in which case, the debt intended to be set off must be pleaded in bar, and in which plea shall be shewn how much is truly due on either side; and in case the plaintiff shall recover, judgment shall be entered for no more than appears to be due after one debt set against another.
The general issue mentioned in the statute must be understood to mean any general issue.
With respect to the statute of limitations, although the words of that statute are general as to the limitation of all actions of debt for arrearages of rent, yet it has been adjudged that an action of debt for the arrearages of rent reserved by indenture was not within the meaning of the said statute (d).
With respect to a release, it is said that it cannot be given in evidence without pleading; for it being a discharge by deed, all legal
(a) Salmon v. Smith. 1 Saund. 204. n. a. I (c) Ketsey's Case. Cro. Jac. 310. (b) Anon. I Mod. M. Browne's Case- (J) Jones v. Pope. 1 Saund. 34-38. Ibid 118. I
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 (/).
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 (h).
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 il. 13/. 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 8A too much, yet after verdict if he release the 8/. he shall have judg^
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 (/).
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 (h).
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 (i).
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
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 assignee 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 (/").
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