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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.”
i Adm. per Cur. in Howell v. Richards, part which applies to the breach com
11 East, 633. But see Gordon v. Gor- plained of, if that which is omitted don, 1 Starkie, N. P. C. 294. and do not qualify that which is stated. new rules.
13 East, 20. k Howell v. Richards, 11 East, 633. 1 Tempany v. Burnand, 4 Campb. 20.
But it is enough to state truly that
(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 in. surance 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 m, 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 enjoymento, and assigned several breaches, in which were stated evictions by different persons, cluded 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.
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
v. Needham, 2 Taunt. 278. n Boone v. Eyre, 2 Bl. Rep. 1312.
o Hodgson v. The East India Company,
8 T. R. 278.
(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.
So if any of the covenants be in the disjunctive 9, the defendant must shew which of them he hath performed. So if any are to be done of record", he must shew that specially, and cannot involve it in general pleading. So if a covenant be partly affirmative and partly negative s: as where the words of the covenant were, that defendant decederet, procederet, et non deviet; defendant having pleaded performance generally, the plea was holden bad. Performance must be pleaded in the terms of the covenant; otherwise it will be bad on general demurrert
If a man, by deed, covenant to build an house 4, or make an estate, and, before the covenant broken, the covenantee releaseth to him all actions, suits, and quarrels, this doth not discharge the covenant itself; because, at the time of the release, there was not any duty or cause of action in being. In covenant by assignee of feoffee *, against feoffor, for a breach of covenant to make further assurance, in not levying a fine at the request of the assignee: defendant pleaded a release from the feoffee, which release bore date after the commencement of the action by the assignee; on demurrer, it was holden, that the breach being in the time of the assignee, and the action brought by him, and so attached in his person, the covenantee could not release this action, wherein the assignee was interested: Judgment for plaintiff. N. Rolle, in his Abridgment, states the opinion of the court to have been as reported by Croke, but adds, that judgment was given - against plaintiff per auter cause. See 2 Roll. Abr. 411. Release, D. pl. 11. To covenant for non-payment of renty, the defendant cannot plead a release, by the plaintiff, of all demands, at a day before the rent in question became due. Where the party takes a bond, and also a deed of covenant, to secure an annuity, although the bond is forfeited before a discharge under the insolvent debtors’act, (16 G. 3. c. 3.) yet the covenantor may be sued on the covenant, for payments becoming due, after his dischargez. So the insolvent debtors' act, 34 G. 3. c. 69. does not discharge an insolvent, entitled to the benefit of that act a, from the payment of the arrears
q 1 Inst. 303. b.
» Middlemore v. Goodale, Cro. Car.
503. s Laughwell v. Palmer, 1 Sidf. 87. y Henn v. Hanson, 1 Lev. 99. t Scudamore v. Stratton, 1 Bus. & Pul. 2 Cotterel v. Hooke, Doug. 97. 455.
a Marks v. Upton, 7 T. R. 305. u 1 Inst. 292. b.
of an annuity becoming due, after his discharge, on a covenant made before that act.
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: upon a motion for a new trial, the court held the evidence admissible ; for the general issue mentioned in the acto must be understood to mean any general issue. But this case has been since overruled, and the Court of B. R. in Oldenshaw v. Thompson, 5 M. and S. 164. decided that there is not any general issue in this action, and thereby confirmed the opinion of Denton, J. Unliquidated damages 4, arising from the breach of other covenants to be performed by the plaintiff, cannot be pleaded by way of setoff. To covenant on an indenture of lease of a house for nonpayment of rent, the defendant pleaded, that by the indenture he covenanted to repair, and to surrender to the plaintiff, at the end of the term, the premises in good repair , “ casualties by fire and tempest excepted;" that a stack of chimnies belonging to the house had been thrown down by a tempest, which had damaged the house so much that it would soon have become uninhabitable, if the defendant had not immediately repaired it; that he had been obliged to lay out, in the repairs, a sum of money (exceeding the amount of the rent in arrear) which the plaintiff became liable to repay to him, and that he was ready to set off the same according to the statute, &c. On special demurrer, it was holden, that the plea could not be supported; for admitting that the defendant could maintain any action against the plaintiff (his landlord,) yet the sum to be recovered could only be ascertained by a jury; and consequently, the damages being uncertain, they could not be set off to the present action.
b Gower and another v. Hunt, Bull. d Howlett v. Strickland, Cowp. 56.
N. P. 181. Barnes, 291. S. C. e Weigall v. Waters, 6 T. R. 488. c 2 G. 2. c. 22.
As there is not any general issue in this action, the evidence will depend entirely upon the pleadings. That, which most usually is pleaded, viz. that the deed is not the deed of the defendant, has been already discussed; see ante, p. 525. It remains only to remark, that the plaintiff can recover only secundum allegata et probata: hence where plaintiff covenanted for a sum of money to build a house within a certain timea, and averred in an action for non-payment of the money, that the house was built within the time; it was holden, that evidence that the time had been enlarged by parol agreement, and the house finished within the enlarged time, did not support the declaration. So where the breach assigned was”, that the defendant had not used the premises in an husband-like manner, but on the contrary had committed waste. Plea, that defendant had not committed waste. At the trial, the plaintiff offered evidence to shew, that the defendant had not used the premises in an husband-like manner, which did not however amount to waste; the judge rejected the evidence, being of opinion, that on this issue it was not competent to the plaintiff to prove any thing which fell short of waste. This opinion was afterwards confirmed by the court. In covenant for rent upon a lease by plaintiff to defendant", the point in issue was, whether J. S. (whose title was admitted by plaintiff and defendant) demised first to the plaintiff, or to another person; it was holden that J. S. was a competent witness to prove the point in issue.
Damages.-Defendant, by a settlement made on his marriage, conveyed estates upon certain trusts, and covenanted with the trustees to pay off incumbrances on the estates, to the amount of £19,000 within a year; it was holdend, that on his failing to do so, the trustees were entitled to recover the whole £19,000 in covenant, though no special damage was laid or proved. Defendant had conveyed premises to the
a Littler v. Holland, 3 T. R. 590. b Harris v. Mantle, 3 T.R. 307. c Bell v. Harwood, 3 T. R. 308.
d Lethbridge v. Mytton, 2 B. and Ad: