there is nothing subsequent to make it a trespass, as there is when tle distress is abused. At common law, the party might take a distress of more value than the rent, therefore that did not make him a trespasser ab initio, but the remedy ought to be by a special action founded upon the statute of Marlbridge (a). (a) Bull. N. P. (81.) CHAPTER XX. Of the Remedies for Tenants against Landlords Of the Tenant's Remedies by Action of Covenant or Assumpsit, according as the Lease is by Deed or without Deed. F the landlord commit a breach of covenant, if the lease be by deed, or violate his contract if the lease be by writing without deed, or by parol agreement, the tenant may in the one case sue him for damages in an action of covenant, and in the other in that of assumpsit. A breach of covenant need not be assigned in express words: it is sufficient if it be a direct affirmative, and certain to general intent (a). Therefore, on a covenant that the defendant had a right to let for the term, a breach assigned generally that he had not a right to let is good; for the covenant being general, the breach may be assigned as general as the covenant, and it lies not in the plaintiff's notice who had the rightful estate; but the defendant ought to have maintained, that he was seised in fee, and had a good estate to demise, and then the plaintiff ought to have shewn a special title in some other; but prima facie the count is good, the covenant being general, to assign a general breach (b). So in assigning a breach of covenant that was for quiet enjoyment, it was held to be sufficient that at that time of the demise to the plaintiff, A. had lawful right and title to the premises, and having such lawful right and title entered, &c. and evicted him, &c. without shewing what title A. had; or that he evicted the plaintiff by legal process, &c. Alleging that "the party having a lawful right and (e) Penning v. Lady Plat. Cro. Jac. 383. Foster-v. Pierson, 4 T. R. 617-621. (8) Salman v. Bradshaw. Cro. Jac. 304. Cont, semb, Wootten v, Heal, & Mod. 66. title, entered," is equivalent to saying "he entered by lawful right and title (a). So also, if a covenant be against the act of any particular person, interruption assigned as a breach is good, without shewing by what title (a). So, if a lessor covenant for quiet enjoyment against the lawful let, suit, entry, &c. of himself, his heirs, and assigns, the declaration for a breach of the covenant need not expressly allege that he entered claiming title, if the disturbance complained of be such as clearly appears to be an assertion of right (b). On a covenant that A. and his wife shall enjoy, &c. a breach that A. was ousted is sufficient (c). However, to establish a breach of covenant for quiet enjoyment without incumbrance from any person, the plaintiff must shew a lawful incumbrance (d). A condition that the lessee shall not molest, vex, &c. any copyholder, is not broken by any entry on the premises vi et armis to beat him, if he do not oust him from his copyhold (e). But where in covenant for quiet enjoyment the breach assigned was, that the defendant had exhibited a bill in Chancery against him for ploughing meadow, and obtained an injunction, which had been dissolved with 20s. costs; on demurrer, this was held to be no breach of covenant, for the covenant was for quiet enjoyment, and this was a suit for waste (ƒ). The seller covenants to the purchaser of an estate that he shall enjoy and receive the rents, &c. without any action, &c. or interruption by the seller or those claiming from him, or "by, through, or with his, or their acts;" this means default. Therefore, a breach was holden to be well assigned in respect of certain quit-rents in arrear before and at the time of the conveyance, though not stated to have accrued while the seller was tenant of the premises (g). But to covenant for enjoyment free from arrears, plea that the defendant delivered money to the plaintiff, with intention for him to pay it over to the lessor, is good (b). A covenant to surrender a copyhold to a purchaser, and to make and do all acts, deeds, &c. for the perfect surrender and assurance of the premises at the costs and charges of the seller, is not broken by the non-payment of the fine to the lord on the admission of the purchaser; (a) Foster v. Wilson. Cro. Eliz. 212. Norman v. Foster. I Mod. 101. Foster v. Pierson. 4 T. R. 617-621. Hodgson v. East India Company. 8 T. R. 278. (6) Lloyd v. Tomkies. 1 T. R. 671. (d) Broking v. Cham. Ibid. 425. (ƒ) Morgan v. Hunt. 2 Vent. 213. for the title is perfected by the admittance of the tenant, and the fine is not due till after the admittance (a). In an action against executors in their own right on a covenant for "good title and quiet enjoyment against any person or persons whatsoever," contained in an assignment of a lease of the testator by way of mortgage, the declaration must shew a breach by some act of the covenantors (b). Covenant by a lessee against his lessor, and breach assigned on the covenant for quiet enjoyment, for that the lessor ousted him: the defendant pleaded that he entered to distrain for rent, and traversed that he ousted him de præmissis; the plaintiff demurred, for that he did not traverse that he ousted him de præmissis or any part thereof. Sed per Curiam, the plea is good, and proof of any part, had the plaintiff joined issue, would have been sufficient (c). Where the covenant is founded on a conveyance of an estate which proves to be void, the covenant is void also. Thus, where the conveyance was "a grant of so much of a term as should be unexpired at the death of A.” and covenant for quiet enjoyment and bond for performance of covenants; this conveyance being void, on account of the uncertainty of the time when the term was to commence and end [Co. Lit. 456.] the covenants were adjudged to be void, as they depended on the estate (d). But though a lease be void, covenant lies in certain cases for a breach of covenant before the lease became void. Thus, upon the stat. 13 Eliz. c. 20. (since repealed) of leases made by parsons, that upon non-residency for eighty days the lease shall be void, yet it was adjudged, that where a parson made such a lease by indenture, in which were divers covenants on the lessee's part, and after the lease, &c. became void by non-residency, &c. for a covenant broken before, an action of covenant lay (e). (a) Graham v. Sime. 1 East. R. 632. Rex v. the Lord of the Manor of Hendon. T. R. 484. (b) Noble v. King. 1 H. Bl. R. 34. (c) Bull. N. P. 301. (4) Copenhurst v. Copenhurst. Raym. 27. (e) Nunns v. Gee. Cro. Eliz. 77. Sir T. CHAPTER XXI. Of the Remedies for Tenants against third Persons. SECTION I. Of Distress for Damage Feasant and Rescous. SECTION II. Of Trespass for immediate Injuries to his Possession; and Case for consequential ones. SECTION I. Of Distress for Damage Feasant, and Rescous. IF F the inclosures, &c. of the tenant be broken down, or his land injured by the cattle, &c. of another person, he may either bring an action of trespass for the damage done, or he may take the cattle, &c. as a distress damage feasant; for the party has his election of the two remedies; but using one of them is an utter waiver of the other, as the election of one cannot but be considered to be an implied rejection of the other; beside that, nemo debet bis vexari pro eâdem causâ : a distress, therefore, taken damage feasant, as long as it is detained, is a good bar to trespass (a). If a beast have done more damage than he is worth, let the injured party not distrain, but rather take his action. (a). This ground of distress is upon the principle of the law of recompence, which justifies the party in retaining that which occasions an injury to his property, till amends be made by the owner. Damage feasant, however, is the strictest distress that is; for the thing distrained must be taken in the very act, for if they be once off, though on fresh pursuit, you cannot distrain them; this diversity existing between distress for rent and damage feasant, that one may distrain any cattle he finds on the premises for rent, but in the other case they must be actually doing damage, and are only distrainable for the damage they are then doing and continuing; for if they have done damage to-day and gone off, and come again at another time and are doing damage, and are taken for that, and the owner tender amends for that damage, the party cannot justify keeping them for the first damage (a). Moreover, if ten head of cattle be doing damage, one cannot take one of them and keep it for the whole damage, but may bring trespass for the rest (a). (a) Vaspor v. Edwards. 12 Mod. 660-63. For damage feasant one may distrain in the night, otherwise it may be the beasts will be gone before he can take them; in which respect, this distress differs from that for rent, or rent-service, which must be in the day-time (a). If the distress be stolen or set at large by a stranger, the distrainer shall not be answerable for it; but if in that case replevin be brought and an elongatur returned, as there must be, there shall be a withernam, and the distrainer is liable till he shew the matter, which, being no default of his, will excuse him (b). If tender be made of damages before the taking, the taking is unlawful; if after the taking and before impounding, then the detainer after is unlawful; but tender comes too late after the impounding to make either the taking or detaining unlawful: still, however, after the impounding, the distrainer may take the amends and let go the distress if he please. If a distress damage feasant escape, or die, without any neglect of the distrainer, he may have an action of trespass against the owner. In trespass quare clausum fregit, the defendant pleaded, that the plaintiff distrained his hog damage feasant for the same trespass; the plaintiff replied, that the hog escaped without his consent, and that he was not satisfied for the damage: on demurrer, it was holden, that the action would not lie, though it was admitted that if the distress had died, the action would revive, but the escape (unless the contrary be shewn) was the fault of the plaintiff (c). Of Rescous. Rescous is where the owner or other person takes away by force a thing distrained from the person distraining; but the person must be actually in possession of the thing, or else it is no rescous; as if a man come to make a distress, and he be disturbed to do it: but the party may bring an action on the case for this disturbance (c). The plaintiff ought to count for what rent or services he took the distress, and the defendant may traverse the tenure (c). If a man send his servant to distrain for rent, &c. and rescous be made, the master shall have the writ, and he may join in the writ for assault and battery of the servant; for both are torts. The joinder of action depends on the form of the action; for wherever the same plea may be pleaded, and the same judgment given on two counts, they may be joined in the same declaration (c). If the defendant plead "not guilty," which is the general issue, (a) Co. Lit. 142. (b) Vaspor v. Edwards. 1 Mod. 660. I (6) Bull, N. P. 84. |