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. Holden 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, confined 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. variance, on the plea of non est factum. Releasors covenanted that for and notwithstanding any act, &c. by them or either of them done to the contrary, they had good title to convey certain lands in fee; and also, that they or some or one of them, for and notwithstanding any such matter or thing as aforesaid, had good right and full power to convey, &c.; and likewise, that the releasee should peaceably and quietly enter, hold, and enjoy the premises granted, without the lawful let or disturbance of the releasors or their heirs or assigns, or for or by any other person or persons whatsoever, and that the releasee should be kept harmless and indemnified by the releasors and their heirs against all other titles, charges, &c., save the chief rent payable out of the premises to the lord of the fee. It was holdenk, that the generality of the covenant for quiet enjoyment, against the releasors and any other person, was not restrained by the qualified covenants for good title and right to convey; and, consequently, although the declaration stated the covenant for quiet enjoyment in its own absolute terms, yet on non est factum there was not any variance. The declaration set forth a covenant to repair generally. Plea, non est factum. The deed, when produced, contained an exception of fire and other casualties. This was holden to be a fatal variance, before new rules. 7. Non infregit conventionem. I am not aware of any case at common law (47) in which non infregit conventionem has been holden to be a good plea on demurrer; if it can be pleaded in any case it must be in the single case where the declaration states a single breach of covenant in the affirmative, and concludes with an affirmative allegation, "And so the defendant has broken his covenant." (47) By stat. 11 G. 1. c. 30. s. 43. in actions of covenant upon policies of insurance under the common seal of either of the two insurance companies (Royal Exchange and London Assurance), the defendants may plead that "they have not broke the covenants, in such policy contained, or any of them." In the following cases, the plea of non infregit conventionem was holden to be improperly pleaded. In covenant on a lease, for not repairing the premises demised, the plaintiff assigned several breaches. Plea, non infregit conventionem. On demurrer, the court gave judgment for the plaintiff, on these grounds; 1st, That the plea was too general; for several breaches were assigned: 2d, That the breach being in non reparando, non infregit conventionem could not be a good plea; because two negatives could not make a good issue. So where in covenant", the breach assigned was for non-payment of an annuity; the defendant pleaded that he had not broken his covenant; special demurrer, that the breach and plea both being in the negative, there was not any issue. Judgment for the plaintiff. So where plaintiff declared on a covenant for quiet enjoyment, and assigned several breaches, in which were stated evictions by different persons, and concluded with these words, " and so the defendants have not kept their covenants." The defendants pleaded non infregit conventionem. On special demurrer, assigning for causes, that the plea attempted to put in issue several matters, and to make an issue out of two negatives, the court gave judgment for the plaintiff, observing that the plea was only argumentative, and therefore an improper plea. 8. Payment of Money into Court. Money may now be paid into court in this action by stat. 3 & 4 W. 4. c. 42. s. 21. which see, ante p. 137. with the form of pleading. 9. Performance. If all the covenants be in the affirmative P, the defendant may plead generally, performance of all: but if any be in the negative, to so many he must plead specially, (for a negative cannot be performed,) and to the rest generally (48). m Pitt v. Russel, 3 Lev. 19. Taylor The East India Company, o Hodgson v. (48) The same rule holds in debt on bond conditioned for the performance of covenants. Cropwel v. Peachy, Cro. Eliz. 691. In this case, advantage was taken of the wrong pleading, by demurrer. |