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 negatives: 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 demurrer t.

10. Release.

If a man, by deed, covenant to build an house", 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 rent, 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 discharge. So the insolvent debtors' act, 34 G. 3. c. 69. does not discharge an insolvent, entitled to the benefit of that acta, from the payment of the arrears

q 1 Inst. 303. b. r Ib.

s Laughwell v. Palmer, 1 Sidf. 87.

t Scudamore v. Stratton, 1 Bus. & Pul. 455.

u 1 Inst. 292. b.

x Middlemore v. Goodale, Cro. Car. 503.

y Henn v. Hanson, 1 Lev. 99.

z Cotterel v. Hooke, Doug. 97.
a Marks v. Upton, 7 T. R. 305.

of an annuity becoming due, after his discharge, on a covenant made before that act.

11. Set-Off.

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 act 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, 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 e, "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.

VIII. Evidence.

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 defendante, 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 Judgment.

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 holdena, 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: 772.

plaintiff under a covenant for good title. A formedon was afterwards brought against plaintiff by a party having better title, and the plaintiff compromised it for a large sum. It was holdene, that in an action for breach of the covenant for good title, the plaintiff might recover the whole sum so paid, and also his costs as between attorney and client, in the compromised suit, although he had not given any notice of that suit to the defendant; for the only effect of want of notice in such a case is to let in the party called upon for an indemnity, to shew that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged, or that he made an improvident bargain, and that defendant might have obtained better terms, if the opportunity had been given him.

Judgment. The judgment is for the recovery of the damages sustained. If the defendant has judgment against him upon nil dicit, confession, or demurrer, a writ of inquiry shall be awarded to inquire of the damages. Where the breach was assigned on two covenants, and plaintiff had good cause of action only on one, and issue was joined on both, and verdict for plaintiff on both, and damages entirely assessed, it was holden that plaintiff could not have judgment. Covenant was brought against two defendants for not building a house1; one suffered judgment to go by default, the other pleaded performance, which was found for him; it was holden, that the plaintiff could not have a writ of inquiry of damages, or judgment against that defendant who had suffered judgment by default; because the covenant being joint, and the performance of it having been established by the verdict, it appeared, that plaintiff had not any cause of action.

If on the whole record it appears, that the defendant has committed a breach of the covenant declared on, although the plaintiff states his real gravamen informally, judgment cannot be arrested; for, however defective the pleadings are, the court are bound ex officio to give such judgment as the law requires them to do:

As where A. declared that B. before her intermarriage with Ck, by deed covenanted with A. to leave certain matters to arbitration, and to abide by the award, provided it were made during their lives; and protesting that B. had not before her intermarriage performed her part of the covenant, averred that

e Smith v. Compton, 3 B. and Ad.

407.

f See the form, Townesend, 2 Bk. Judg. 55.

g See the form, 1 Saund. 47.

h Anon. Cro. Eliz. 685.

i Porter v. Harris, 1 Lev. 63.

k Charnley v. Winstanley and Wife, 5 East, 266.

after making of the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay a certain sum: and the breach assigned was the non-payment of the sum so awarded. After verdict for plaintiff, on non est factum pleaded, it was moved, in arrest of judgment, that the marriage of B., after entering into the covenant, and before award made, was a revocation of the arbitrator's authority, and consequently there could not be any breach of an award which he had not any authority to make. Lord Ellenborough, C. J. said, that if the case had come on upon a special demurrer, as for a defective allegation of the breach of covenant by marrying, there would have been good ground for the defendants' objection to the manner of declaring: but although the plaintiff had stated his gravamen informally, yet there was a sufficient allegation of the fact of the marriage being before the award, which constituted a breach of covenant, to warrant the court in giving judgment for the plaintiff on that ground. Rule discharged.