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venants to be performed by the plaintiff, cannot be pleaded by way of set-off (a).

A set-off is allowable, however, by the statutes of set-off, in an action of covenant for non-payment of money, as for rent; but the demand intended to be set-off, must be such as might have been the subject of an action either of debt, covenant, or assumpsit (b).

In covenant upon an indenture for non-payment of rent, the defendant pleaded non est factum, and gave a notice of set-off; Mr. J. Denton at the assizes was of opinion, that he could not do so upon this issue; but upon a motion for a new trial the Court held, that the evidence ought to have been received, for the general issue mentioned in the Act must be understood to be any general issue, and accordingly ordered a new trial (c).

On the plea of non est factum, the issue is that there is no such deed as that stated in the declaration. The lessor's title, therefore, cannot on such plea be controverted (d).

The defendant may, under this plea, shew that some of the covenants in the deed have been altered or erased, or he may plead it; for if any covenant be altered or erased, the whole deed is discharged: for the deed is a complication of all the covenants, so that by changing any, it remains no longer the same deed (e).

A deed may be pleaded as lost by time and accident, without profert thereof being made. But if profert of the deed be made, the Court cannot dispense with oyer {f). So if it appear by the record that the defendant had oyer of a copy only, it is error: but the Court will in certain cases dispense with oyer, as where an original lease is lost, and an application is made that a copy of the counterpart may be good oyer; and if it be once ordered that a copy be deemed a compliance with the rule demanding oyer, no error can appear on the record, because it does not there appear whether the oyer was given from an original deed or a copy. Much less is it necessary to make a profit of a deed which is pleaded only by way of inducement to the action (g).

As to the plea of nil kabuit in tenementis; the general rule is, that a tenant cannot be permitted to controvert the title of his landlord (h) : and it is founded on good sense: for so long as the lessee continues to enjoy the land demised, it would be unjust that he should be permitted to deny the title under which he holds possession. But when he is evicted, he has a right to shew that he does not enjoy that which was the consideration for his covenant to pay

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the rent, notwithstanding he has bound himself by the covenant (a). If, therefore, the defendant hath been evicted, to be sure he cannot be compelled to pay rent, and he may plead that fact in answer to the plaintiff's demand. However, that, generally speaking, an indenture operates by way of estoppel against the tenant, and precludes him from controverting the title of his landlord, is proved by Lit. s. 58. Co. Lit. 47. b. and by a variety of other cases (b).

Entry and eviction therefore is a good plea to an action of covenant, for rent is suspended by entry into any part. The eviction must be tortious, and such as ousts the defendant of his possession; for a mere trespass will not suffice.—Entry and eviction must in covenant be pleaded; for it cannot, as in debt for rent, be given in evidence; and to a plea of eviction the plaintiff may reply an entry by virtue of a power, and traverse the eviction (c).

Therefore, where in covenant for non-payment of rent the plaintiff declared that he was seised of tithes, and by indenture demised them to the defendant rendering rent, and that the defendant covenanted to pay it, and assigned the breach in non-payment of so much, the defendant pleaded eviction; the plaintiff demurred, and judgment was given for the defendant; because it is a rent, and the eviction is a suspension of it, and therefore a good plea (d).

A release of all covenants is a good discharge of the covenant before it is broken; but a release of all actions, suits, and quarrels, would not be so; for at the time of the release no debt, duty, or cause of action existed (e).

Wherever a discharge is pleaded in the nature of a release, the defendant must plead it be by deed, or it will be bad, for as the covenant is by deed, by deed only shall it be discharged (e).

It has been said, that where a covenant runs with the land, and the lease has been assigned, if the covenantee had released before a breach or action brought, it had barred the assignee even for a breach in his own time (f). (But this cannot, it is conceived, apply to a covenant for payment of rent; for as an assignee shall be bound by covenants that run with the land, so he shall take advantage of them; and were it otherwise, in the case of rent the covenantee might in fact defraud his assignee by defeating the estate that he assigned to him] (g).

Accord and satisfaction is a good plea where there has been an actual breach j for not till then are damages claimable: and this plea goes in discharge of damages, not of the covenant itself, for that remains (a).

(a) Cates v. Knight. 3 T. R. 442.

(4) Parker v. Manning. 7T-R-537-539

(c) Samson v. Smith. I Saund. R. 204. n. ».

(d) Dean and Chapter of Windsor v. Gover. a Saund. R. 3OV304. n. 7. Dalston v. Reeve.

1 Ld. Raym. 77.

(t) Esp. N. P. 307.

(f) Ibid. 308. Middlemare v. Goodale. Cro. Car. 503.

(g) Bull. N. P. 159.

Therefore, where the plaintiff declared that in consideration that he would permit 5. P. to enjoy a farm at C. for one year, the defendant covenanted to pay the rent of 72/. per arm. and also 200/. then in arrear, and the breach assigned was the non-payment of the rent; the defendant pleaded that " before any cause of action did arise on the covenant, that it had been agreed between him and the plaintiff, that the plaintiff should take 30/. in discharge of all covenants, which the plaintiff had accepted;" on demurrer this plea was held to be a bad one, for at the time there was no covenant broken or damages sustained (a).

Tender and refusal is also a plea to this action. The damages, not the debt, being for the most part the thing in demand by this action, tender and refusal need not in general be pleaded with an uncore prist (a).

But where it is brought for rent, it being a debt ascertainable and certain, it is best to plead this plea with an uncore prist.

Riens in arriere, or payment at the day, is a good plea to covenant for non-payment of rent. But "levied by distress," cannot be pleaded; for that is a confession that it was not paid at the day, to which time the breach refers (b).

Infancy is another plea in this action, which may or may not be good, according to circumstances.

If the defendant have leave to plead double under the stat. 4 £s* 5 Ann. c. \6. he shall not be allowed to plead inconsistent pleas, as non est factum, and a condition precedent (c ).

But non-tenure, riens in arriere, and infancy may be pleaded together (d).

Bankruptcy is no plea to a covenant to pay rent (e), for besides that the rent was not a debt due at the time of the bankruptcy, and so could not be proved under it, it is a settled principle, that the tenant's liability on his covenant to pay rent, subsists during the continuance of the lease, notwithstanding he may become a bankrupt and be deprived of all his property: but of the assignee of the tenant, otherwise (f).

Where the plaintiff declared in covenant for seven quarters' rent, a plea shewing a surrender before the last four of the seven quarters' rent accrued, is bad on demurrer, because it does not go to the whole breach; and the breach is not entire, but part of it may be proved (g).

(«) Esp. N. P. 308.

(A) Ibid. 309.

(*) Ibid. Gilb. R. 113.

(J) Wilson v. Ames. 5 Taunt. 340.

(e) Mayor v. Steward. 4 Butr. 1440

2444. Miles v. Auriol. 1 H. Bl. 433.

(f) Hammond v. Toulmin. 7 T. R. 611616. Doe d. Michinson v. Carter. 8 T. RJ7-61.

(g) Barnard v. Drithy. 5 Taunt. 27

In an action of covenant for rent, or for 5/. an acre for ploughing meadow, the count being for a liquidated sum, money may be paid into Court (a).

Where an action of covenant was brought upon a lease for nonpayment of rent, and not repairing, &c. the Court made a rule, that upon payment of what should appear to be due for rent, the proceedings as to that should be stayed, and as to the other breaches, that the plaintiff might proceed as he should think fit (£).

So the Court have referred it to the master to compute what is due in covenant for non-payment of rent (c).

Respecting the verdict and judgment in this action; in covenant for non-payment of rent at divers days which amounts to so much,if in the declaration the sum be miscast, it is not an error, but the plaintiff shall have a verdict for so much as is really in arrear (d).

Judgment cannot be given on two covenants where one is bad; therefore where a general verdict was given, and entire damages were assessed, judgment was arrested (e .

So if covenant be brought against two and there be judgment by default against one, and the other plead performance, which is found for him, the plaintiff shall not have judgment against the other, for on the whole the plaintiff has no cause of action (f).

In covenant for rent upon a lease by A. to B. the point in issue was whether C. (whose title both admitted) demised first to A. or to another person; C. is a competent witness to prove the point in issue, for the verdict cannot be given in evidence in any action which may afterwards be brought either by or against him (g).

A bill in equity may be brought for rent, where the remedy at law is lost or become very difficult, and the Court will relieve in such case on the foundation of length of time (h).

Section IV. Action of Debt for Use and Occupation.

An action of debt will also lie, or of assumpsit for use and occupation, where rent is in arrear by a tenant who holds under a lease not by deed: as under a writing without deed or a parol demise.

Of Debt.—First with respect to the action of debt.

This action, we have before observed, is founded upon a contract, either express or implied, in which the certainty of the sum or duty appears, and the plaintiff is to recover the sum in numtro and not in damages (i).

(a) E?p. N.P. 310. (i) 1 Tidd"s Pract. 565. (c) Anon. I Wils. M. Byrom v. Johnson. ST.R. 410. Campion v.Crawshay. 6Taunt.


(d) Thwaites v. AshGcld. 5 Mod. Z13.

(e) Anon. Cro. Eliz. 68J.
(f) Porter v. Harris. 1 Lev. 63.
(ii) Bell v. Harwood. 3 T. R. 308.
(i) Benson v. Baldwyn. 1 Atk. J98.
(0 Bull. N. P. 167.

Where there was a tenant at will, with a rent reserved, the lessor might always have an action of debt for arrears of rent (a).

But in declaring on a lease at will for rent arrear, the plaintiff must shew an occupation; for the rent being only due in respect thereof, it should appear to the Court when the lessee entered and how he occupied (b).

An action of debt for use and occupation is not a local action (e). Against tenants at sufferance, it seems that an action of debt lay not for rent arrear, for the contract was determined, and they are in by wrong: but in such cases there is now a special provision.

Where a tenant holds over, for double value,—By star. 4 G. 2. c. 28. s. 1. it is enacted, That if any tenant or tenants for life, or lives, or years, or persons coming in under or by collusion with them, hold over any lands, tenements, &c. after the determination of their estates, after demand made and notice in writing given for delivering the possession thereof by the landlord, or the person having the reversion or remainder therein, or his agent thereunto lawfully authorized, such tenant or tenants so holding over, shall pay to the person so kept out of possession at the rate of double the yearly value of the lands, tenements, &c. so detained, for so long a time as the same are detained; to be recovered by action of debt, whereunto the defendant or defendants shall be obliged to give special bail.

Debt for double value on the above statute does not lie against a weekly tenant (d).

For double rent.—Also, by stat. 11 G. 2. c. 19. s. 18. it is enacted, That in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises, and shall not accordingly deliver up the possession thereof, at the time in such notice contained, the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforth pay to the landlord double the rent or sum which he, she, or they should otherwise have paid. Upon these statutes it has been held, that

With respect to the 4 G. 2. it is a remedial law; the penalty being given to the party aggrieved (*).

The notice to quit may be before the expiration of the lease, or time of demise, or after (f).

The notice in writing is of itself a sufficient demand, within the words of the statute "after demand made and notice in writing given" (e).

In debt for double value under the stat. 4 G. 2. the plaintiff after stating a demise to the defendant's wife and her subsequent inter

to) Esp. N. P. 188.

(4) Bcllasis v. Burbrick. 1 Salk. 109. liaton v. Jaqucs. Doug. 45S-A57(1) Eglcr v. Mdrkden. 5 Taunt. 25.

(J) Lloyd v. Rosbee. 2 Campb. 4S3(1) Wilkinson v. Colley. 5 Burr. 1694. (f) Cutting v. Derby. » Bl. R. 1075.

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