Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. edit. But the defendant cannot plead to the breaches suggested (i). The plaintiff must serve him with a copy thereof, and give him notice of the inquiry. The form of the writ may be seen in Lill. Ent. 608, 609. And as the plaintiff is bound to prove the truth of the breaches, the defendant will be at liberty to controvert the truth of them. If the action be on a bond, and the defendant lets judgment go by default; and the plaintiff thereupon makes his suggestion, in which he sets out the condition of the bond, and that appears to be for per (i) Contra, per Chambre, J. 5 Taunt. 391. Plomer v. Ross. [However in 1 Cr. & M. 690. Archbishop of Canterbury v. Robertson, which was an action on an administration bond, the defendant pleaded non est factum; on which the plaintiff joined issue, and then craved oyer of the bond and condition, and suggested as breaches that the defendant did not exhibit an inventory, and did not make a true account pursuant to the condition of the bond; and the court was of opinion, that the defendant could not have pleaded to the suggestion any matter in excuse of performance; but that if he had a sufficient excuse, he ought to have set it up by way of plea to the declaration; and that he could not avail himself of it in evidence, having merely pleaded formance of an award, or of covenants in an indenture, or of articles of agreement, or the like, the plaintiff must prove the condition of the bond, the award, indenture, or articles, as well as the breaches suggested. Edwards v. Stone, coram Lawrence, J., at Hereford Spring Assizes, 1803 (k). The statute does not direct any judgment to be entered for the damages assessed, and for the costs, upon the return of the inquisition by the judge; therefore it should seem there can only be one judgment, namely, the old judgment for the debt, and 18. non est factum. The defendant cannot, it should seem, demur to the breaches suggested. In Webb v. James. Vac. after H. T. 1842, the plaintiff had amended his replication in accordance with the judgment of the court (see 8 Mees. & W. 645), and suggested certain breaches, to which the defendant demurred; the plaintiff obtained a rule to shew cause why the demurrer should not be struck out; cause was shewn, by consent, before Parke, B., at chambers; and that learned judge, after taking time for consideration, made the rule absolute.] (k) [See also 2 Camp. 519. Williams v. Sills.] And he must prove that the bond mentioned in the suggestion, and produced to the jury, is that on which the action is brought. 2 Camp. 121. Hodgkinson v. Marsden. Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. damages for the detention, and 408. costs, together with the costs of increase. See Hankin v. Broomhead, 3 B. & P. 607, where it was so held in the Exchequer Chamber, and a second judgment for the damages assessed on the inquiry reversed. But there seems to be some difficulty on this part of the Act how to enter up the judgment, so as to have the costs of the inquisition. If the judgment be for the plaintiff upon demurrer, perhaps this form may be a proper one: Whereupon "all and singular the premises "being seen, and by the court here more fully understood, and ma"ture deliberation being thereupon "had, for that it appears to the "court here, that the plea by the "said W. in form aforesaid above "pleaded is not sufficient in law to "bar the said J. from having his "said action thereof maintained "according to the form, &c." (then assign the breaches, and afterwards say). "Wherefore because "it is convenient and necessary "that the court of our said lord the "king now here should not give "their final judgment of and upon "the premises aforesaid until such "time as the truth of the said "breaches of covenant so suggested "by the said plaintiff shall have "been inquired into, and the damages, which the said J. has "sustained by reason of those "breaches, shall have been assessed "by a jury of the country in that "behalf, according to the form of "the said statute; let judgment "thereupon be stayed until such "time accordingly;" then at the end, "and because according to the "form of the said statute, &c., a "jury ought to inquire of the truth "of the said breaches so assigned "by the said plaintiff, and to assess "the damages that the said J. has "sustained thereby, therefore the "sheriff of the said county is com"manded to summon twelve good, "&c., of his bailiwick to appear "before the justices of our lord the 'king assigned to take the as"sizes () in the said county, on, 86 Stat. 8 & 9 W. 3, c. 11. "&c., at &c., in the said county upon their oath to inquire of the "truth of the said breaches, and to "assess the damages which the said "J. has sustained thereby, and let "the said justices of assize make "return of the same writ so as "aforesaid to the said sheriff di"rected, unto the court of our said "lord the king, here on "next after next coming, together with this writ; the same day is given to the said W. here." This mode of entering up the proceedings upon record in cases where a party obtains judgment by default, or upon demurrer, seems to be approved of in the before cited case of Hankin v. Broomhead. In the inquisition returned by the judge, which is in the nature of a postea, it must be alleged, that the jury have found the truth of the several breaches suggested, and damages must be assessed for those breaches. See "have sustained thereby, and shall "command the said sheriff to make "return thereof to the court from "whence the same shall issue, at "a day certain in term or in "vacation in such writ to be "mentioned; and such proceed"ings shall be had after the re"turn of such writ as are in the "said statute in that behalf men"tioned, in like manner as if "such writ had been executed "before a justice of assize or nisi "prius." It has been said that this enactment does not extend VOL. I. the form of the postea, 2 Saund. 187 c, 187 d. The judgment should then be as usual. "There"fore it is considered that the "plaintiff recover against the said "defendant his said debt, and also £ for his damages which he "hath sustained as well by reason "of the detention of that debt as "for his costs and charges by him "about his suit in this behalf ex"pended, by the court of our said "lord the king now here adjudged "to the said plaintiff with his as"sent. And the said defendant "in mercy," &c. ; in which are included the costs of the inquisition. And the Court of Exchequer Chamber inclined to the same opinion in the before cited case of Hankin v. Broomhead. The subsequent mode of proceeding is the same as has been already mentioned where the judgment is entered upon a verdict. So if the judgment be for the plaintiff by to cases where the plaintiff assigns breaches of the condition of the bond, &c., in his declaration or replication. (See Tidd's Supplement, 1833, p. 135.) But the statute directs that all writs issued under the stat. of W. 3 shall (unless, &c.) direct the sheriff, &c.; and it should seem, therefore, that the subsequent word "suggested" is sufficient to include breaches assigned in the declaration or replication, as well as those suggested on the roll.] Stat. 8 & 9 W. 3, c. 11. default, the plaintiff, instead of taking judgment, should say, it is considered that the said J. ought to recover his debt aforesaid, and his damages on occasion of the detention of that debt: and then proceed exactly in the same way as above, in the case of a judgment upon demurrer. If any further breaches of covenant are committed, the Act directs that the plaintiff may sue out a scire facias upon the judgment. The scire facias ought to recite the whole proceedings in the former action, or at least so much thereof as to make it appear that the judgment is warranted by the statute: it must then suggest the further breaches, and the same proceedings are to be pursued under the scire facias as in the original action; but it is not necessary there should be any other judgment than the usual one in a scire facias of an award of execution; and as the statute only stays the proceedings in the scire facias upon payment of the damages, costs, and charges, it should seem the plaintiff is entitled to costs in the scire facias, whether the defendant pleads to it or not, notwithstanding the third section of the same statute, 8 & 9 W. 3, (m) See 11 East, 387. Brooke v. Booth, Accord. [See also stat. 3 & 4 W. 4, c. 42, s. 34.] (n) [4 Bing. N. C. 678. Line v. Stephenson. 6 Scott, 447. S. C. 5 Bing. N. C. 183, 7 Scott. 69. S. C. c. 11, only gives costs in suits upon writs of scire facias, where the plaintiff obtains any award of execution after plea pleaded or demurrer joined (m). See 2 Saund. n. (2) to Roberts v. Mariett. (2) So is Peles v. Jervies, Dyer, 240, in the margin. Tenant pur autre vie leased for twentyone years, and covenanted that he had not done any act but the lessee shall or may enjoy it during the years afterwards within the twenty-one years cestui que vie died; it was adjudged that the action of covenant did not lie; for "but" refers the subsequent words to the precedent words. The cases inserted in the margin of Dyer are of great authority, being collected by Lord Chief Justice Treby. (3) Cro. Eliz. 674. S. C. by which it appears that the court gave judgment upon upon another point. The authority of this case upon the point above-mentioned was questioned by Fleming, C. J., in 2 Brownl. 214. Proctor v. Johnson. But it has been since recognised in many cases, and is now considered as an established point of law. Vaugh. 126. Hayes v. Bickerstaff. 1 Lev. 57. Brown v. Brown. 2 Ld. Raym. 1419. Frontin v. Small (n). in error. See further on this point, post, vol. ii., n. (c) to Wotton v. Hele.] But an express warranty in a feoffment, which is a covenant real, will not restrain the warranty in law arising Construction of Covenants. (4) It is questionable whether much regard would now be paid to this mode of construction. The chief object of courts of law at present is to discover the true meaning of the parties, and to construe the covenants accordingly. As far as the difference above laid down would tend to find out the intention of the parties, so far would it now be adopted and no farther. The proper rule seems to be that which Lord Mansfield laid down in a case, where the question was, whether certain words in a covenant amounted to a condition pre from the word "dedi." Co. Litt. [6 M. & S. 9. 384 a. (0) In all cases where several covenants are contained in a deed, the courts endeavour to ascertain the intention of the parties from an attentive consideration of the whole deed, and construe the covenants, either as independent or as restrictive of each other, according to such apparent intention. Every case, therefore, must depend upon the particular words used in the instrument before the court, and the distinctions will be found to be very nice and difficult. 11 East, 633. Howell v. Richards. 2 B. & P. 13. Browning v. Wright. Post, vol. ii., n. (6) to Wotton v. Hele, 3 B. & P. 565. Hesse v. Stevenson. 15 East, 530. Barton v. Fitzgerald. 2 B. Moore, 592. Foord v. Wilson. 1 B. & B. 319. Nind v. Marshall. 3 Moore, 703. S. C. Sicklemore v. Thistleton. 8 B. & C. 185. Belcher v. Sikes. 6 A. & E. 572. Stannard v. Forbes. 7 C. B. 286. Crossfield v. Morrison. Ibid. 310. Young v. Raincock. The decision in the principal case appears to be confirmed by 3 B. & Ad. 189. Smith v. Compton ; in which it was observed by Lord Tenterden, that, except Milner v. Horton. M'Clel. 647 (by the authority of which the court did not feel themselves bound), there is no case in which a qualified covenant has been held to restrain a general one, where the covenants have not been connected with each other, either by preceding words, as in Browning v. Wright, or by intervening or subsequent ones.] See also post, vol. ii., n. (8) to Wotton v. Hele, as to the construction of covenants of indemnity. |