undertaking shall have been given, and security found as aforesaid, if upon the trial a verdict shall pass for the plaintiff, but it shall appear to the Judge before whom the same shall have been had, that the finding of the Jury was contrary to the evidence, or that the damages given were excessive, it shall be lawful for the Judge to order the execution of the judgment to be stayed absolutely till the fifth day of the term then next following, or till the next Session, Assizes, or court-day (as the case may be); which order the Judge shall in all other cases make upon the requisition of the defendant, in case he shall forthwith undertake to find, and on condition that within four days from the day of the trial, he shall actually find security by the recognizance of himself and two sufficient sureties, in such reasonable sum as the Judge shall direct, conditioned not to commit any waste, or act in the nature of waste, or other wilful damage, and not to sell or carry off any standing crops, hay, straw, or manure produced or made (if any) upon the premises, and which may happen to be there upon, from the day on which the verdict shall have been given to the day on which execution shall finally be made upon the judgment, or the same be set aside (as the case may be): provided always, that the recognizance last above-mentioned shall immediately stand discharged and be of no effect, in case a writ of error shall be brought upon such judgment, and the plaintiff in such writ shall become bound with two sufficient sureties unto the defendant in the same, in such sum and with such condition as may be conformable to the provisions. respectively made for staying execution on bringing writs of error upon judgments in actions of ejectment, by an Act passed in England, in the sixteenth and seventeenth years of the reign of King Charles the Second, and by an Act passed in Ireland in the seventeenth and eighteenth years of the reign of the same King, which Acts are respectively intituled An Act to prevent Arrests of Judgments and superseding Executions. IV. "And be it further enacted, That all recognizances and securities entered into pursuant to the provisions of this Act, may and shall be taken respectively in such manner and by and before such persons as are provided and authorized in respect of recognizances of bail, upon actions and suits depending in the Court in which any such action of ejectment shall have been commenced; and that the officer of the same Court with whom recognizances of bail are filed, shall file such recognizances and securities, for which respectively the sum of two shillings and sixpence, and no more, shall be paid; but no action or other proceeding shall be commenced upon any such recognizance or security, after the expiration of six months from the time when possession of the premises, or any part thereof, shall actually have been delivered to the landlord. V. "And be it further enacted, That it shall not be lawful for the defendant to remove any action of ejectment commenced by a landlord under the provisions of this Act from any of the Courts of Great Session in Wales to be tried in an English county, unless such Court of Great Session shall be of opinion that the same ought to be so removed upon special application to the Court for that purpose. VI. «And be it further enacted, that in all cases wherein the landlord shall elect to proceed in ejectment, under the provisions hereinbefore contained, and the tenant shall have found bail, as ordered by the Court, then if the landlord upon the trial of the cause. shall be nonsuited, or a verdict pass against him, upon the merits of the case, there shall be judgment against him with double costs, VII. "Provided always, That nothing in this Act contained shall be construed to prejudice or affect any right of action or remedy which landlords already possess, in any of the cases hereinbefore provided for. VIII. "And be it further enacted, That this Act shall extend to all parts of the United Kingdom of Great Britain and Ireland, except Scotland." 4 CHAPTER XV. Of the Remedies for and against Landlord and Tenant (continued). For the Landlord, for Breach of Covenants and Agreements other than for Rent. SECTION I. By Action of Covenant. SECTION I. Of the Action of Covenant. AN action of covenant or assumpsit, according as the premises are demised by deed or not, lies for the recovery of damages for any injury sustained by the landlord in consequence of the tenant neglecting to repair the buildings, suffering trades to be carried on therein contrary to his covenant, treating the land in an unhusbandmanlike manner, or committing any other breach of the agreement. An action of covenant cannot be maintained except upon a deed, and the declaration must shew that it is brought on one (a). In the case of joint-lessees, if a lease be to A. and B. by indenture, and A. seal a counterpart, and B. agree to the lease, but does not seal, yet B. may be charged for a covenant broken; and this though the covenant be collateral, and not annexed to the land (b). (6) Co. Lit. 231. a. (a) Moore v. Jones, 2 Ld. Raym. 1536. The assignee of a term, however, is not liable on a mere collateral covenant (a). So, if one party execute an indenture, it shall be his deed, though the other party do not execute it: but in order to make it necessary for the plaintiff to sue in covenant, the binding by deed ought to be mutual (except in the case of lessee of the King's Patent): for where a defendant has never sealed the indenture he cannot be sued in that form of action (b). Touching the sealing of bonds or deeds, if it appear upon oyer that two parties sealed it, whereas one only is sued, the law will not intend that the other sealed the deeds unless it be expressly averred that he did and though the bond or deed upon oyer recite," in witness whereof we have set our hands and seals," yet that does not amount to such an averment, but the defendant must shew that the bond or deed was actually sealed by the other (c). : There are, indeed, some words of art, such as "indenture," "deed," or "writing obligatory," which of themselves import that the instrument was sealed by the party without an averment of sealing. If, therefore, the declaration state that 7. S. by his "deed" did so and so, or by "indenture" covenanted or demised, or by his "writing obligatory" acknowledged, &c. without averring in either of these cases that he sealed, still the declaration is good. So, delivery, which is essential to a deed, is never averred (c). But without such averment, or words of art, it is otherwise: for if it be alleged that J. S. by his " certain writing" simply, demised, or covenanted, or acknowledged, &c. without averring that he sealed, the Court will not intend that the writing was sealed (c). Neither does it follow, because the words "in witness whereof we do put our hands and seals," are used in the conclusion of an agreement, that therefore it was sealed by the parties: on the contrary, it has been decided that these words do not amount to an averment that the parties sealed the instrument (d.) Leaving the glass of windows cracked has been held to be a breach of covenant to repair. So, not repairing a pavement is a breach of covenant to leave the premises sufficiently maintained and repaired; for it is within the intention of the covenant, and is quasi the building; and the not repairing may be matter of value and of much prejudice to the lessor.-So, carrying away a shelf, though not stated to be a fixture, has been held to be a breach of covenant to leave the premises in the same order, &c.; for it shall be intended to be fixed (e). A covenant to repair during the term after three months' notice, (a) Mayo v. Burkhurst. Cro. Jac. 439. (6) Foster v. Mapes. Cro. Eliz. 212. Ld. Ewre v. Strickland. Cro. Jag, 240. (c) Cabell v. Vaughan. 1 Saund. 291, n. I, and to leave the premises in repair at the end of the term, are distinct clauses: therefore notice is not necessary to sustain an action for nonrepair at the end of the term; for the notice refers only to reparations within term, to which the lessee is not tied without notice three months before (a). But a covenant to keep a house in repair from and after the lessor hath repaired it, is conditional, and it cannot be assigned as a breach that it was in good repair at the time of the demise, and that the lessee suffered it to decay; for the lessor must repair before the lessee is liable (b). A covenant to repair at all times, when, where, and as often as occasion should require during the term, and at furthest within three months after notice of want of reparation, is one covenant; and it cannot be stated as an absolute covenant to repair at all times when, where, and as often as occasion should require during the term (c). A lessee covenanted, within the two first years of the term to put the premises in good and sufficient repair, and at all times during the term to repair, pave, scour, cleanse, empty and keep the messuages, ground, and other the premises when, where, and as often as need should require, and within the first fifty years of the term to take down the four demised messuages, as occasion might require, and in the place thereof, erect upon the demised premises four other good and substantial brick messuages. Breach, that although fifty years of the term had expired the lessee did not, within the fifty years, take down the four messuages, and in the place there of, erect four other good substantial brick messuages. Plea, that occasion did not require within the fifty years, that the four messuages should be taken down. Upon demurrer, the Court intimated an opinion, that if within the fifty years the houses should be so repaired as to make them completely and substantially as good as new houses, the covenant would be satisfied without taking down the old houses (d). If a plaintiff declare on a general covenant to repair a messuage, and assign a breach, per quod he was put to expense, it is sufficient for the tenant to plead performance as to all except as to the repairs of a party-wall, and that those repairs were rendered necessary and done under the stat. 14 G. 3. c. 78. and did not become necessary by the defendant's default, and that the defendant was not the owner of the improved rent (e). Upon a covenant that "the lessee should and would well and sufficiently repair and keep in proper repair, all and singular the buildings, &c. during the continuance of the term" an action for breaches may be maintained during the continuance of the term (ƒ). (a) I Saund. 664. (6) Ibid. 645. (c) Horsefall v. Testar. 7 Taunt. 385. (d) Evelyn v. Raddish. 7 Taunt. 411. If a lessor covenant to let certain lands except such a close, a tor. tious entry by the lessee into the excepted close is said not to be a breach of a condition to perform all covenants contained in the lease (a). Therefore if H. let a house, excepting two rooms, and be disturbed therein, covenant lies not: but if he had excepted a passage thereto, and had been disturbed in that, it would have lain; for it well lies for a thing which the lessee agrees to let the lessor have out of the demised premises (b). If a copyholder in fee make a lease for years warranted by the custom, in which the lessee covenants to repair during the term, a surrenderee of the assignee of the reversion may maintain covenant for non-repair against the original lessee, although he had assigned the term before the reversion was surrendered to the plaintiff: for a copyholder is within the stat. 32 H. 8. c. 34 (c).-The doubt in this case arose upon the tenure of the messuage; for if it had been freehold, it was agreed, the action might well have been brought by the assignee of a reversion against a lessee for years after he had assigned his term, notwith standing the lessor or his assigns had accepted the rent from the assignee of the lessee; and this upon the general words of the statute which gives the grantees and assignees of reversions of lands, tenements, and other hereditaments, the like advantage against lessees by entry for non-payment of rent as the lessors or grantors themselves might have." This clause, therefore, is not confined to a covenant: for payment of rent (d). If a farm be out of repair in the life of the ancestor and afterwards the heir bring an action, he shall recover damages for the whole time; but he ought: not to allege a breach in the ancestor's lifetime, because that belongs to the executor (e). A recital of an agreement in the beginning of a deed will create a covenant, upon which this action will lie. As, where on the demise of a coal mine, it was recited that bebefore the sealing of the indenture it had been agreed that the plaintiff should have the third part dug," &c. on an action of covenant being brought on this, it was objected, that there was no covenant that the plaintiff was to have the third part: but per Hale.-Were it but a recital that before the indenture they were agreed, it is a covenant; so, to say "whereas it: was agreed to pay 20/." for now the indenture confirms the former a greement by such declaration, and makes it a covenant (ƒ). This action lies by the lessor against the assignee of the lessee's assignee for a breach of covenant that runs with the land, though he be (a) Russel v. Gulwel. Co. Eliz. 657. (d) Bachelour v. Gage. Cro. Car. 188. (e) Anon. II Mod. 45. (f) Esp. N. P. 268. Barfoot v. Freswell 3 Keb. 465. |