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other part, she demised a house to the defendant, and that he covenanted to pay the rent to J. S., and then assigned a breach in the non-payment of the rent, to the damage of the plaintiff (the attorney). On demurrer it was objected, that the lease was void, because the plaintiff acting only as attorney to J. S., it should have been made as a lease from him, and in his name *, and that, the lease being void, the covenant to pay the rent was void also. E contra it was insisted, that the instrument being under seal, the defendant was estopped from saying the plaintiff did not demise. But the court held, that it appearing on the declaration that the lease was void, because it was not made in the name of J. S. whose house it appeared to be, and that the plaintiff only made it as his attorney, there could not be any estoppel, and then the covenant to pay the rent was void, and consequently the plaintiff could not maintain the action.

Where a lease, by indenture, takes effect in point of interest, which interest may be co-extensive with the lease in point of duration, but in fact determines before it, the lease may then be avoided, and the parties are not estopped from shewing the facts which determined the lease; as where A., lessee for life of B., makes a lease for years y, by deed indented, and afterwards purchases the reversion in fee; B. dies; A. shall avoid his own lease; for he may confess and avoid the lease, which took effect in point of interest, and determined by the death of B. (45). So where covenant was brought by plaintiff?, as heir in reversion in fee to his brother, on an indenture of lease for years, made to defendant by plaintiff's father, and breach assigned for want of repairs; defendant pleaded, that the father was tenant for life only, and that the lease had determined by his death, and traversed, that after the making the lease, the reversion in fee had belonged to the father; on demurrer, judgment was given for the defendant: for, as was said in argument, and adopted by the court, though during the father's life, the lessee would have been estopped from saying that the father had not the

x See Wilks v. Back, 2 East, 142. y | Inst. 27. b.

See Treport's case, 6 Rep. 15. a. to the same effect, and

Doe d. Barney v. Adams, 2 Tyrw.

284. 2 Cr. & J. 232. z Brudnell v. Roberts, 2 Wils. 143.

(45) This case having been cited in Gilman v. Hoare, Salk. 275. Holt, C. J. said, that the reason of it was, because tenant for life has a freehold, which is a greater estate, and the lease will not require any estoppel, if the life endure.

reversion in him, yet on his death the lease was at an end; and the lessee was not estopped from pleading the truth by confessing and avoiding the lease; and it was holden, that the traverse was well taken. So where the declaration stated, that plaintiff and his wife, since deceased, by indenture demised certain premises to defendant for years, yielding and paying to plaintiff and his wife a yearly rent, with a covenant to pay the rent to the plaintiff and his wife, and then averred that on such a day wife died, and afterwards rent became due and in arrear to plaintiff: defendant craved oyer of the indenture, (whereby it appeared, that the reddendum was to the husband and wife, and the heirs of the wife, and the covenant to pay rent was in the same form,) and then pleaded that the premises were the estate of the wife, and that the plaintiff had nothing in them but in right of his wife; that on, &c., she died without issue, leaving J. S. her heir, whereupon all the estate of the plaintiff ceased, and J. S. threatened to enter and eject defendant, unless he attorned, whereby he was compelled to attorn, and became tenant to J.S. General demurrer and joinder. It was holden “, that the plea was good, and that some interest having passed by the lease from plaintiff and his wife, it could not work by estoppel; and the defendant was therefore entitled to show that plaintiff's interest had ceased.

6. Non est factum.

There is not any general issue to an action of covenant, but the defendant may plead that the deed (on which the plaintiff has declared,) is not his deed. This plea puts in issue the execution of the deed in fact only, which it is incumbent on the plaintiff to prove. If there be a subscribing witness to the deed, the execution must be proved by such witness (46). But payment of money into court on one of the breaches assigned in the declaration, dispenses b with proof of the execution of the deed, although one of the pleas be the plea of non est factum. To support the plea of non est factum,

Hill v. Saunders, (in error,) affirming b Randall v. Lynch, 2 Campb. 357. judgment of C. B. 4 B. and C. 524. Lord Ellenborough, C. J. See the decision of C. B. in 2 Bingh. 112.

(46) For the exceptions to this rule, see post. tit. Debt on bond; non est factum, p. 544.

the defendant might have given in evidence any thing which proved the deed to be void at the time of pleading; as drawing a pen through a line or material word; rasure; addition to, or other alteration of the deed in a material part°, &c. But these defences must now be pleaded specially, as well those which make the deed void, as those which make it voidable. See New Rules, H. T. 4 W. 4. tit. Covenant and Debt.

The frequent nonsuits which occurred, on the ground of fatal variances between the instruments set forth in the declaration and those produced in evidence, have been obviated by stat. 9 G. 4. c. 15. which, after reciting that great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time; for remedy thereof enacts, “that every court of record holding plea in civil actions, any judge sitting at nisi prius, and any court of oyer and terminer and general gaol delivery in England, Wales, the town of Berwick-upon-Tweed, and Ireland, may cause the record, on which

any

trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence and the setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party as such judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and the papers, rolls, and other records of the court, from which such record issued, shall be amended accordingly.” In covenant by lessor against lessee on an indenture of demise, the breach alleged was the nonpayment of rent of a toll-house demised to the defendant by indenture, of which profert was made as follows, which said indenture plaintiff now brings into court. Plea, non est factum; at the trial the counterpart executed by the lessee was produced. Holdene not to be a variance; the terms of the declaration

c Whelpdale's case, 5 Rep. 119. b.

Pigot's case, 11 Rep. 27 a. d Pitt v. Green, 9 East, 188. Bowditch

v. Mawley, 1 Campb. 195. Hoar v.

Mill, 4 M. and S. 470. Swallow,

v. Beaumont, 2 B, and A. 765. e Pearse v. Morrice, 3 B. & Ad. 396.

were sufficiently answered by the production of the counterpart. The powers given by the foregoing statute are, by express enactment, contined to variances between any matter in writing or in print produced in evidence and the record; but the legislature has deemed it expedient to allow other amendments to be made on the trial; for now by stat. 3 and 4 W. 4. c. 42. s. 23. it shall be lawful for any court of record holding plea in civil actions, and any judge sitting at Nisi Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such court or judge, in any civil action or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record, writ, or document, on which the trial is proceeding, of any contract, custom, prescription, name, or other matter, in any particular in the judgment of such court or judge, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the court or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it

may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable; and in case such variance shall be in some particular in the judgment of such court or judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such court or judge shall have

power to cause the same to be amended, upon payment of costs to the other party, and withdrawing the record or postponing the trial as aforesaid, as such court or judge shall think reasonable; and after any such amendment the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury, and otherwise, as if no such variance had appeared ; and in case such trial shall be had at Nisi Prius, or by virtue of such writ, the order for the amendment shall be indorsed on the postea or the writ, as the case may be, and returned together with the record or writ; and thereupon such papers, rolls, and other records of the court, from which such record or writ issued, as it may be necessary to amend, shall be amended accordingly; and in case the trial shall be had in any court of record, then the order for amendment shall be entered on the roll or other document upon which the trial shall be had ; provided that it shall be lawful for any party who is dissatisfied with the decision of such judge at Nisi Prius, sheriff, or other officer, respecting his allowance of any such amendment, to apply to the court from which such record or writ issued for a new trial upon that ground;

and in case any such court shall think such amendment improper, a new trial shall be granted accordingly, on such terms as the court shall think fit; or the court shall make such other order as to them may seem meet. And by s. 24. the said court or judge shall and may, if they think fit, in all such cases of variance, instead of causing the record or document to be amended, direct the jury to find the facts according to the evidence, and thereupon such finding shall be stated on such record or document; and notwithstanding the finding on the issue joined, the said court or the court from which the record has issued, shall, if they shall think the variance immaterial to the merits of the case, and the mis-statement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the very right and justice of the case.

Coverture of the defendant, at the time of execution, which might have been given in evidence under non est factum, must be pleaded. In covenant, the declaration stated a joint demise by husband and wife h. Plea, non est factum. It appeared in evidence, that the husband was tenant for life, with remainder to the wife for life, and that they had jointly demised to the defendant. After verdict, a motion was made for a new trial, on the ground, that the demise stated was an impossible demise : for the husband alone had the power of demising, and the wife could only confirm ; the court discharged the rule: and Blackstone, J. said, “ The issue is, that there is no such deed as stated in the declaration ; if in fact such a deed appears, the defendant, who is in possession under it, shall not question the title of the plaintiffs to make such demise, and thereby evade the performance of what he himself has stipulated.” And Nares, J. said, on the issue of non est factum in covenant, the deed only must be proved.

If the plaintiff declares for a breach of covenant, and states the covenant, by itself, in its own absolute terms, without the qualifying context which belongs to it, this being an untrue statement, in point of substance and effect, of the deed, will entitle the defendant to a nonsuit on the ground of a

h Friend v. Eastabrook, 2 Bl. Rep. 1152.

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