Action on Deed of Demise. "by the same indenture, covenanted with the said earl and his "assigns to pay, or cause to be paid, the said rent, by force of "which demise the defendant entered and was possessed. And saltpetre before such a day, and that he had not done it. The defendant prayed oyer of the deed, in which the covenant was as before, provided that if any misfortune happen by fire or water to disable him, he shall be excused, and pleaded that he was disabled by fire: on issue joined thereon and verdict for the plaintiff, it was moved in arrest of judgment, that there was a variance between the deed upon (b) But if there be an exception contained in the covenant itself, and the declaration state the covenant as an absolute one without noticing the exception, the variance is fatal on non est factum. 4 Camp. 21. Tempany v. Burnand. See also 11 East, 640. Howell v. Richards, per Lord Ellenborough, C. J. [2 B. & B. 395. Browne v. Knill. 2 B. & C. 20. Latham v. Rutley. 3 D. & R. 211. S. C. 4 B. & C. 445. Jones v. Cowley. 6 Dow. & R. 533. S. C. 5 B. & C. 909. Saunderson v. Griffiths. 8 Mann. & R. 643. S. C. 9 Exch. 518. Metzner v. Bolton. But see ibid. 668. Wheeler v. Bavidge.] A proviso is properly the statement of something extrinsic of the subject-matter of a covenant, which THURSBY and Others บ. PLANT. which the plaintiff declared and that produced into court, for one is absolute and the other conditional; but judgment was given for the plaintiff; for he need not declare upon any more of the deed than the covenant, and it is the defendant's business to shew the proviso, which goes in defeasance of the covenants. 1 Lev. 88. Elliott v. Blake. S. P. 1 T. R. 640, 645. Hotham v. Eust India Company (b). shall go in discharge of that covenant by way of defeasance: an exception is a taking out of the covenant some part of the subjectmatter of it. If these be right. definitions, the plaintiff need never state a proviso, but must always state an exception: and whether particular words form a proviso or an exception, will not in any way depend on the precise form in which they are introduced, or the part of a deed in which they are found. [6 B. & C. 430. Vavasour v. Ormrod. 9 D. & R. 597. S. C. Where a plea in assumpsit admits the contract as alleged, but shews it to have been made subject to certain rules which have not been complied with, the plea is not bad as amounting to the general issue. 8 M. & W. THURSBY and Others v. PLANT. Action of Debt on the word "Yielding." "that the said earl aforesaid by his other indenture (3) granted "the reversion to the plaintiffs for twenty-one years if the earl and "his wife should so long live;" to which grant the defendant (2) An action of debt or covenant lies for non-payment of the rent, on this word yielding, in a lease for years; for it is an agreement to pay the rent, which will make a covenant. 1 Rol. Abr. 519, pl. 10. 1 Sid. 266. Hellier v. Casbord. 1 Sid. 447. So if the lease be, yielding such a rent, free and clear from all manner of taxes, charges, and impositions whatsoever, covenant lies if the lessee does not pay the whole rent, discharged of all taxes before or afterwards imposed. Carth. 135. Giles v. Hooper. (3) At the common law a reversion could only be granted by deed or fine; and such grant, together with the attornment of the tenant (while attornments were necessary), was held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. Co. Litt. 172 a. 3 Rep. 63 a. Lincoln College case. 2 Bl. Com. 317 (c). Therefore in a declaration by an assignee of the reversion, it is necessary to shew that the reversion was as 723. Smart v. Hyde. See 4 C. B. 529. Sharland v. Leifchild.] (c) [7 B. & C. 243. Doe v. Cole. 1 Mann. & R. 33. S. C.] (d) See stat. 8 & 9 Vict. c. 106, signed to him by deed or fine; otherwise it is erroneous, although he states an attornment by the lessee. Cro. Car. 143. Long v. Nethercote. 3 Lev. 155. Beely v. Purry. But the lessee of a term, demised by deed, might by the common law assign his term by parol, and such assignee could maintain an action of covenant against the lessor, for any covenant contained in the deed which runs with the land, as for quiet enjoyment, or the like. Cro. Eliz. 373, 436. Noke v. Awder. S. C. Moor, 419; and cited 3 Rep. 63 a. Lincoln College case. So at this day, it is conceived, that notwithstanding the lessee must now, by statute 29 Car. 2, c. 3, s. 3, assign his term by deed or note in writing, yet in an action by the assignee of the term against the lessor upon a covenant contained in the indenture of demise, the assignee is not bound to state in the declaration that the term was assigned to him by deed or writing. See 6 Rep. 38 b. Bellamy's case (d). s. 3, by which the assignment of a lease (not being copyhold) after Oct. 1, 1845, shall be void, unless made by deed. Attornment. attorned (4) and agreed. The plaintiffs then assigned for breach of covenant that the defendant had not paid, or caused to be paid, the sum of 2851. of the rent aforesaid, which had become (4) An attornment at the common law was an agreement of the tenant to the grant of the seigniory, or of a rent; or of the donce in tail, or tenant for life or years, to a grant of a reversion, or remainder made to another. Co. (e) [Accordingly, an attornment is defined to be "the act "of the tenant's putting one per THURSBY and Others v. PLANT. Litt. 309 a. 2 Bl. Com. 288 (e). And the attornment was necessary to the perfection of the grant. However, the necessity of attornment was in some measure avoided by the Statute of Uses; as, by that statute, the possession Barry v. Goodman. So where son in the place of another as "his landlord." 8 B. & C. 476, per Holroyd, J. The tenant who has attorned continues to hold upon the same terms as he held of his former landlord: hence, where the tenant signed an instrument by which he "attorned "and became tenant" to A. of certain lands "to hold the same "for such time and on such con"ditions as may be subsequently "agreed on" between him and A., it was held that the instrument required a stamp, as being not a mere attornment, but an agreement for a new tenancy. 8 B. & C. 471. Cornish v. Searell. 1 Mann. & R. 703. S. C. also 6 A. & E. 675. Boulten. 66 1 Nev. & P. S. C.) A mere attornment within the above definition does not require any stamp. 5 A. & E. 95. Doe v. Edwards. 6 Nev. & M. (See Doe v. 650. 633. S. C. 2 M. & W. 768. Attornment. due, to the plaintiffs or either of them ((5), post, 283), and therefore they bring their suit, &c., with this, that they will verify that the said earl and countess are still living. To was immediately executed to the use; 1 T. R. 384–386. Birch v. Wright; and by the Statute of Wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases. But both the necessity and efficacy of attornments have been almost totally taken away by the statutes 4 & 5 Anne, c. 16, s. 9, 10, and 11 Geo. 2, c. 19, s. 11. By the former of those statutes it was enacted, "that all grants or Covenant on Deed of Demise. which the (6) defendant pleaded in bar, that after the demise, and before the grant of the reversion to the plaintiffs, the defendant did surrender ((7), post, 287) his term to the "at law, or decree, or order of a "court of equity, or made with "the privity and consent of the "landlord or landlords, lessor or "lessors, or to any mortgagee, "after the mortgage is become "forfeited." The first statute having made attornment unnecessary, and the other having made it inoperative, it is now held not to be necessary either to aver it in a declaration in covenant, or plead it in any avowry or other pleading whatever. Doug. 283. Moss v. Gallimore (g). (5) The words "or caused to "be paid" are inserted, because the covenant is, "that the de"fendant would pay, or cause to THURSBY and Others V. PLANT. be necessary to add the disjunctive words in either case. As where in covenant the words in the disjunctive, as here, "to pay or cause to "be paid to them or any of were them," and the breach was, that the defendant "did not pay to "them;" it was objected, that the breach ought to have been so large as to exclude both ways, by either of which the act might be done; that, though the plaintiffs say the defendant did not pay, yet he may have caused to be paid; and though they charge a non-payment to all, yet there might be a payment to one of them, which is enough within the words of the covenant. But the objection was overruled; for, by the court, he that causes to pay, pays; and if the defendant has paid the money to one of them, he may plead it in his discharge. 1 Str. 231. Aleberry v. Walby (h). (6) Averment is twofold, gene out of the remainder: stat. 4 Ann. c. 16, s. 9, making the conveyance as effectual as if attornment had been made by the tenant of the particular estate. 2 E. & B. 331. Doe v. Brown.] (h) So where there are several defendants, an averment that |