thereby demised, at the expiration of the said lease of the 1st day of November, 1800. But the said learned judge refused so to direct and inform the said jury, and the said counsel for the said defendant did then and there except to the said opinion and ruling of the said learned judge, because he refused to direct and inform the said jury as last aforesaid prayed by the said counsel for the said defendant, but left the question in that behalf to the said jury as aforesaid. And the said counsel for the said defendant did then and there insist before the said learned judge that he ought, and they did then and there pray him to inform and direct the said jury upon the whole of the said evidence given on the part of the said plaintiff and the said defendant as aforesaid, that if the said jury believed the said evidence they should either find a verdict for the said defendant or a verdict for the said plaintiff for no fused so to inform and direct the said jury, and on the contrary thereof held and affirmed and told the said jury that if they believed the whole of the said evidence they might find a verdict for the said plaintiff for substantial damages, but the amount thereof, and whether the same should be substantial or nominal was a matter entirely for them. The jury found a verdict for the plaintiff for £1000. The plaintiff elected to take their verdict upon the second count alone. so informed the said jury that in his opinion the statement in the said lease of the 1st day of November, 1800, of a lease to the said John Maxwell from the said College with the other evidence in the case, raised a question for the said jury, whether such an instrument did not exist as would have enabled the defendants in 1820 to execute a renewal to the plaintiff of the said premises. And the said learned judge after calling the attention of the jury to the evidence given by the defendant, tending to procure eviction by title paramount, told the jury there was on the other side evidence for their consideration that John Maxwell might have had such title as aforesaid at the time of the execution of said lease of the 1st day of November, 1800, and the said learned judge called the attention of the jury to the evidence from which it would appear that the said John Maxwell remained in the enjoyment of the said demised premises till shortly before the date of the said eject-minal damages only; but the said learned judge rement brought by the said Maxwell Close as aforesaid, and that the said John Maxwell received the rents of the said premises and a triennial fine thereout, and the learned judge told the jury that there was on the record an admission that those rents and fines were paid, and called their attention to the evidence of the finding of the lease of 1800 among the papers of the defendant, and to the fact that the lease under which John Maxwell held was not found among said papers or produced at the trial. And the said learned judge left it to the said jury to consider whether such continuance as aforesaid in the enjoyment of the said demised premises by the said John Maxwell was consistent with the supposition that there was no such title in the said John Maxwell under the said College as aforesaid. But the learned judge told the jury that they should also take into consideration the evidence of the said Maxwell Close, and the whole of the evidence given by the defendant, that the said John Maxwell was only tenant at will of the said premises to the said Maxwell Close, and thereupon the counsel for the said defendant did then and there, on the part of the said defendant, except to the said opinion and direction to the said jury of the said learned judge, and to what he so told the said jury; inasmuch as he thereby left matters to the said jury for their consideration and decision not legally arising upon the said issues and evidence aforesaid to consider and decide; but which, if proper to be considered at all upon said issues and evidence, it belonged to the learned judge exclusively to consider and decide, and which he ought to have considered and decided himself upon the legal construction of the said lease of the 1st day of November, 1800, and the legal effect of the other evidence so given as aforesaid as applicable, if applicable at all, to the construction, effect, and legal operation of the said lease, and to have directed the said jury accordingly. And the counsel for the said defendant did then and there insist before the said learned judge that he ought, and they did then and there pray him to inform and direct the said jury that there was no legal evidence of any such estate or interest in the said demised premises being vested in the said John Maxwell at the time he executed the said lease of the 1st day of November, 1800, or at any time afterwards, as could have enabled him, or the defendant as his executors, to grant a valid renewal of the said lands The postea stated, "that a special jury to try the said issues so joined between the said parties pursuant to the statute, &c. (certain jurors, naming them) came and are duly elected and sworn upon that jury, and because the residue of the jurors of the same jury did not appear, therefore one other person of those standing round in court, by the sheriff of the said county, at the request of said John Kean, &c. and by command of the said justices, is newly set down, and was sworn upon that jury, and the said juror so newly set down, together with said jurors so sworn and impanelled, being duly elected, tried and sworn to declare the truth, find, &c." Mr. Holmes and Mr. Napier, Q.C., Mr. Ormsby with them. The only covenant stated in the declaration* is that for renewal; that for quiet enjoyment appeared on the production of the lease at the trial. The construction of the first covenant depends upon that of the latter, which is limited to the acts of J. Maxwell and those claiming under him. There are two classes of exceptions, to the evidence and the charge: the first is to the admission of the receipt for £950, it not being mentioned in the deed, nor material to the issues on the record. The second and third exceptions are to the reception of evidence as to the value of this farm-lease, and go to the construction of the covenant; the fourth is to the charge of the learned judge. [That the whole instrument was to be taken into consideration they cited and commented upon Broughton v. Conway, (Dyer, 240, S. C; Moore, 58;) Browning v. Wright, (2 B. & P. 13;) Foord v. Wilson, (8 Taun. 545, S. C. 2 B.; Moore, 592;) Mends v. Marshall, (1 Brod. & Bing. 319; S. C.3 B. Moore, 703;) Brown v. Brown, (1 Keb. 234;) Merrill v. Frame, (4 Taun. 329;) Deering The covenant for quiet enjoyment was stated in the third count, on which the plaintiffs allowed the defendants to have judgment.-Reporter. bes, (6 Ad. & El. 572,) were cases of an implied v. Farrington, (1 Mod. 113;) Line v. Stephenson, | v. Stephenson, (6 Scott, 447,) and Stannard v. For (6 Scott, 447; S. C. 5 Bing. N. C. 183; S. C. in error; 7 Scott, 69, per Lord Denman;) Stannard v. Forbes, (6 Ad. & El. 572.)] The fifth and sixth exceptions are in effect that where either expressly or impliedly acts were covenanted to be done on both sides, neither can maintain an action for the breach without averring that he has done his part, or his willingness to perform what he has not done. [Pennefather, B.-This argument does not appear to be open to you under the plea of non est factum.] Edmonds v. Groves, (2 M. & W. 642, per Alderson, B.;) Smith v. Martin, (9 M. & W. 304.) [Pennefather, B.-In both cases an inference was attempted to be drawn from an admission on the record.] Freeman v. Mayor of Waterford, (1 Sch. & Lef.451.) The seventh exception is that the learned judge should not have left it to the jury to say whether John Maxwell might not have had some title con trary to that established by the evidence of the defendants, to be in the Close family. The learned judge should not have told the jury that there might be some title or beneficial interest in John Maxwell; if there was we admit the verdict was right. There is no evidence that John Maxwell had any estate out of which he could have given the plaintiffs that which they required, and if not they cannot complain of not getting that which would be valueless. Lastly, there was a mis-trial. It appears from the postea that there not being a sufficient number of special jurors present, a tales-man was taken de circumstantibus; the twelfth juror or tales-man was improperly chosen; this is a statutable jury, and must be chosen pursuant to the statute, [35 H.8, c. 6; 10 Car. 1, sess. 2, c. 13, s. 3]; Peeters v. Opie, (2 Saund. 349, n. 1;) 6 Geo. 4, c. 51. By the 28th sect. of the 3 & 4 W. 4, c. 91, the tales-man should be taken from the common jury, and the officer should have taken and put them into the ballot-box. [Perrin, J.-He is bound to take them from the circumstantibus; if possible they should have a qualification, if not, whoever is present. Pennefather, B. Would not a consent cure the defect? if so the averment is, that the plaintiff consenting, the jury was taken de circumstantibus, and the defendant went on to trial.] Fines v. Norton, (Cro. Car. 279;) Crowe v. Edwards, (Hob. 5;) Jenk. Cent. 89, case 73; Gardner's case, (5 Rep. 36 b.;) Holt v. Mellow croft and King v. Perry, (5 T. R. 453;) Fermor v. Dorrington, (Cro. El. 222;) Hassett v. Payne, (Cro. El. 256 n.;) King v. Tremearne, (5 B. & C. 254;) Drumgoole v. Home, (1 Hud. & B. 212;) Farmer v. Mountfort, (8 M. & W. 266.) Mr. T. O'Hagan, Q.C. and Mr. H. H. Joy, Q.C., with them Mr. Tomb, Q. C.-The covenant is absolute and unrestricted, and the court cannot entertain a question as to damages only. Bac. Ab., tit. Damages; Hixt v. Goats, (2 Roll. Ab. 703;) Lowe v. Piers, (4 Burr. 2229.) These covenants are independent of and unrestricted by the other. There are several intervening covenants, therefore the express covenant is not controlled by the other. The cases cited on the other side are not applicable; Browning v. Wright, (2 B. & P. 13,) is in our favour. In Mends v. Marshall, (1 Brod. & Bing. 319,) the covenant was immediately connected with the precding one, and Foord v. Wilson, (2 B. Moore, 592,) was also a case of connected covenants. Line The court being divided in opinion, now delivered their judgments seriatim. May 30.-MOORE, J.-This case comes before us upon a writ of error by the defendant in the court below, where the question came on a bill of exceptions to the ruling of my Lord Chief Baron. The Court of Queen's Bench gave judgment for the plaintiff below, the defendant here. (The learned judge having read the pleadings.) Some of the exceptions in this case, were taken during the progress of the It was contended case, and at its conclusion. that the covenant for renewal was qualified by that for quiet enjoyment; there was no controversy, but that the plaintiffs below were entitled to a ver dict on the plea of non est factum, and that of plene administravit. The only question-subject to a question of variance, on the plea of non est factum, to be tried-was that of damages, and of the prin ciple upon which they were to be assessed. The lease and assignment being proved, the receipt of the purchase money was offered in evidence. The bears date after the execution of the lease, restricted by the qualified covenant for quiet enjoys signed by John Maxwell the lessor. The ment; a large covenant in one instrument, may be andum on the lease states that the consider- restricted by another covenant in the same instruor the lease was £950. That memorandum ment. Where two covenants are inconsistent, one t sigued by John Maxwell, though the re- should give way to the other; the courts have said as. £913, a portion of this consideration, that a general covenant is to be qualified by a limited id before the execution of the lease, the re- covenant, and if a party were to declare as upon a r after. The defendant objected to the ad-general covenant, that would not be the true conity of the receipt; but my Lord Chief Baron opinion it ought to be received. Now, I I am not able to understand the ground hich it was objected to; it was offered only question of damages, which was the sole a in controversy. Could the jury possibly y better criterion of value than that which or and lessee had agreed to put upon it at e of the grant? It is clear, from the receipt, 50 was given and taken for the interest. re, it appears to me that a receipt signed lessor was clearly admissible against his ntatives, to shew the amount of damages. ore, I am of opinion that this exception be overruled. The next objection is the e of Mr. H. L. Prentice; where a question ly one of opinion, it must frequently be put etically; nothing is more common than in upon the warranty of horses, to ask what, opinion of the witness, would be the value of se if sound, and what, if unsound: there any persons quite incompetent to give an I as to the unsoundness, or otherwise quite tent to speak as to the value. If the quesay be put in that case, it may here also; and the question were objectionable, it is removed subsequent part of the case, which shews a course of renewal on the part of the ColThe next objection is, that there was no eviof an eviction by John Maxwell. I am of 1 no such evidence was necessary. Supposplaintiff not to be disturbed, that would answer to an action of covenant, for not ig a renewal. The fourth exception is, that ige refused to direct the jury, that as there o notice on the part of the lessee requirlessor to renew, that they should find for fendant. It is stated in the declaration, demand of renewal was made and refused. event there was no obligation to tender any enewal. The plain meaning of the words are, renewal should be granted. I do not think any ground for exception. The next excep, that the learned judge being called upon to the jury that the plaintiff was in no event ento more than nominal damages, declined to as there was nothing to shew any eviction by aramount, or of loss sustained by the refusal W. For anything that appeared, John Maxight have had in him a sufficient title; theream of opinion that this objection must fail. then contended that there was a substantial ce under the issue raised by the plea of non tum; and that on this plea the learned judge have directed the jury to find for the det. That though this covenant for renewal parently unqualified, yet it was controlled qualified covenant for quiet enjoyment, and have been declared upon as a qualified coveIt is clear the covenant for renewal may be struction; but in the case now before the court there is no inconsistency. The covenant to grant a renewal, is to do an act, and the qualified covenant is not inconsistent with it; there is nothing to restrict the act-no qualification of the covenant declared on; the covenant is an absolute one; and there is no variance between the covenant declared on, and the covenant in the lease. I am of opinion that there is nothing to restrict this unqualified covenant-that it is absolute and declared upon according to its true legal construction; and this is therefore no ground of objection; and so far as I have considered, the exception I have referred to, the court fully agree in this view. The plaintiff's case, having closed, the defendant then went into his case, and gave evidence of a lease and renewal from the College to the Maxwell family, from 1754 to 1824; that the defendant, in 1818, paid rent to Maxwell Close, in whom the interest in these College lands became vested. It was also proved that John Maxwell was his tenant at £19 10s. per annum; and a notice to quit served on John Maxwell, signed by Maxwell Close; and further, the defend ants gave evidence of an ejectment on the title to recover the possession from John Maxwell of the premises comprised in the lease of 1800, which ejectment was served upon the defendants as executors of John Maxwell. The defendants having closed their case then called upon the learned judge to tell the jury that the plaintiffs were not entitled to more than nominal damages. It then becomes material to ascertain what my Lord Chief Baron told the jury upon the question of damages. There are but two points of view, in which this question could be submitted to the jury: First, that John Maxwell, or his executors, had a power to grant a valid renewal. Secondly, that he had no such power-and the charge shews that the Chief Baron did leave it in both these views. Mr. Napier in the argument, put this question upon its right foundation. The question is not as to the preponderance of evidence, but whether there was any evidence to go to the jury that John Maxwell had such a title as he could renew from. If there were none such, the Lord Chief Baron was wrong; if there was such evidence, he was right, and bound to leave it so to the jury. The question is one entirely on the weight of evidence, and comes before us on the exception to the charge of the learned Chief Baron. The defendants say there was not any evidence from which the jury could infer that John Maxwell had the power to grant a renewal. I think there is such evidence; it is to be collected from the lease stated in the exception, that John Maxwell had a lease from the College. Now supposing that lease was to other members of the Maxwell family, it might have been in trust for John Maxwell, or be assigned to him, and be called his lease from the College; and where a man grants a lease, and states that he has a lease from the College, that is some evidence to shew that the allegation is true. it is clear from the construction of the covenant, "that the said John Maxwell should and would make out a new lease," that the landlord was bound to make out a new lease; therefore I am of opi nion my Lord Chief Baron was right in saying that the plaintiffs were on this ground entitled to but nominal damages. On the question of variance I also agree. Further, as to the charge of the Chief Baron, I am of opinion it was perfectly right; all the evidence went to shew that John Maxwell had power to renew. With respect to the question of the talesman, I am of opinion, as far as appears from the record, that it is impossible to say that any thing was wrongly done. RICHARDS, B.-This is an action for a breach of covenant for renewal of a lease; the lease was for 20 years, and contained covenants for renewal, and for quiet enjoyment. The tenant of John Max well, after the expiration of the term of 20 years, was served with notice; the premises were evicted in an adverse suit. If the lessor had such a title as is contended he had, he was guilty of great default in not renewing, and the jury were bound in law to assess the damages; but had the title been evicted before the lease had expired, I am not prepared to say the plaintiffs could maintain any action. This case is plainly distinguishable from Williams v. Burrell (1 C. B. 402), there no eviction had taken place. A renewal, if executed in the present case, would have operated but for two years. Ishall confine my JACKSON, J.-The twelfth objection is resolvable into those contained in the first, second, and seventh, and may be summed up in this, that this is a case for nominal damages only, and that the Chief Baron should have so directed the jury. The question of damages is one for the jury, not the judge. The subject for our consideration is whe-petent to form an opinion upon this subject than ther in an action of covenant the judge can direct a verdict for nominal damages, and give his opinion respecting the effect of the covenant for renewal, that for quiet enjoyment, being qualified, is confined to the lessor's own acts, and of those claiming under him. I am of opinion, that in this case the covenant for renewal is independent of the covenant for quiet enjoyment. The tenant whose representatives the plaintiff's are, gave £950 for the interest in the lease. The lessor refers to his having a lease from the College; taking that, with the evidence of the renewals being uniformly granted by the College, I think the tenant was fully entitled to a renewal. The third exception was that which my brother Moore spoke of first, and is to the reception in evidence of the receipt for £950. It is true that the receipt is not strictly applicable to the issues; but we must recollect that this is an action for damages, and as such, the jury must have some guide as to the amount they should give; the receipt was not contradictory of the lease. I am of opinion that it is evidence to regulate the amount of damages, and was properly admitted. The next objection is to the reception of the evidence of Mr. Prentice. In this also I agree with my brother Moore, as well as there being no necessity for a notice to renew. With respect to the objection that no deed of renewal was tendered for execution, any of them; a witness may be asked a question upon a matter of science or skill; but in my opinion the objections to this witness were well-founded. Evidence was given on the part of the defendant, which shewed primâ facie that there was no title in John Maxwell. Defendant called the solicitor of the College, and he produced a lease to Robert Maxwell. There is a chain of evidence shewing the existence of the lease from the College in persons other than John Maxwell. I now come to the exceptions to the charge of my Lord Chief Barou. There being some ground of presumption that John Maxwell had some title, it may not have ap peared so clearly that John Maxwell had no such title as that the judge was bound to withdraw that question from the jury; but I am not disposed to affirm the manner in which he did leave the ques tion; it was not left in such a way as to satisfy me that the jury were not misled. Possibly I may be wrong, and that no real grounds exist for disputing upon this point. Possibly at the close of the defendant's case there was no reason for suggesting that John Maxwell had no real interest in the premises. The direction of the Lord Chief Baron as to the matter of fact, as to excessive damages, was not as precise or as explicit as they should. I am very decidedly of opinion that no valid renewal could have been granted; and seeing that the jury the non-renewal. law. have given substantial damages, they must have assessed them upon some illegal principle of law. This is not an action of tort; it is founded upon contract. It has not appeared whether any real injury has been sustained in point of law; on the contrary I hold that no real damage resulted from Regarding that to be the case, I think the learned judge would have been right in directing the jury to give nominal damages. Nominal damage is a phrase very well understood in the think the jury ought to have been directed in this case, if they believed the evidence, to find nominal damages. The judge left it to the jury to say whether there might not have been an equitable title in John Maxwell. This part of the charge is not warranted by the evidence; there was no ground for submitting, as a matter of fact, that John Maxwell had an equitable estate. I do not see in what character this trust estate is to be viewed. I confess I am not aware of any question being raised for the jury. As I understand the case, John Maxwell did not hold under any lease, but was tenant from year to year. This part of the charge appears to me to be objectionable. If the jury believed the whole of the evidence, they might find substantial damages for the plaintiffs. I am at a loss to understand that part of the charge, "Although you believe that John Maxwell had no title to grant a renewal, you may find substantial damages." I think substantial damages cannot be given upon a covenant of that kind, unless there was a power to perfom the covenant. fere; but when the amount becomes the main question, and the judge directs the jury to assess them upon an erroneous principle, the charge may be made the subject of exception. The lease in question is from John Maxwell to John Craig, at a rent of £6, with a triennial fine of £1, and a covenant for perpetual renewal. The lease contained no covenant for title—it was an unqualified covenant to renew at the expiration of the term; the damages were for the breach of this covenant. The second count alleged no title in the lessor, but in whom we are called upon to presume a title. The covenant in the lease was indubitably broken, and had there been a covenant for title, the plaintiff would have been entitled to substantial damages. The third count was founded on the supposition that there was no covenant for title, on this count the plaintiff had a verdict by the concession of the plaintiff. John Maxwell was evicted by title paramount. The plaintiff could not sustain an action for a breach of the covenant for quiet enjoyment. What, then, is the proper measure of damages for the breach of this covenant for renewal? On what principle should they be assessed? The rule is stated in Robinson v. Harman (1 Ex. Rep. 150.) The defendant knew he could not grant a lease. We must then consider what was the value of the thing the plaintiff lost-if the lessor had no title the plaintiff lost nothing. If a renewal had been given in this case, no action could be brought, though all the evidence went to shew it would be valueless. The Lord Chief Baron told the jury, that if, on the whole of the evidence on both sides, they were of opinion that John Maxwell had power to execute a valid lease in 1820, the plaintiff was entitled to substantial damages; if otherwise, he was entitled to nominal damages only. His direction was founded upon the whole evidence; he stated to them the substance of the evidence on both sides. It is contended that, considering all the evidence, there was no ground for the judge to send such a case to the jury, that a title in John Maxwell can be only upheld through the presumption of a fact. The evidence for the defendants removed any presumption created against them. The evidence on the part of the defendant shews that these lands were a portion of the College estate, the leases of which contained no covenant for renewal; that John Maxwell became the owner of the lease as the executor of Henry Maxwell; that he was not the tenant to the College, but that Henry Maxwell alone was so, and paid rent every year, and that John Maxwell never paid. In 1801 Henry Maxwell renewed with the College, and still continued to be the tenant; that after the death of Henry Maxwell the rent was regularly paid by his legatees; but John Maxwell never paid, but was in possession of 40 acres as the tenant of Henry Maxwell, who had the beneficial ownership. Taking the whole evidence, John Maxwell was only tenant from year to year. The material question left to the jury was, whether John Maxwell had not, under some instrument or another, the legal or equitable interest under the College; this was a vague way to leave the question; there was no evidence to warrant such an inference; it is not possible to say that the landlord could be a trustee for a tenant, from year to year, at a rent of £19. Here PERRIN, J.-I concur in the opinion of my brother Moore, that the judgment of the court below should be affirmed. I shall confine my opinion to the question of damages. This is a lease for 20 years, with a covenant for renewal, in which he mentions his lease from the College, and for which he received a consideration of £950. The lease to John Maxwell might have been either to himself or a trustee. There was no proof of an actual payment of rent by him to any one during his life; it is plain he had some interest in what he calls his lease, under which he was in possession, and under which he made the lease and received the fines. It is a principle to be preserved against him and his executors, that he told the truth. The eviction by title paramount might have been collusive. It was a serious question for the jury, whether the testator told the truth in 1800; and if he did not keep it in his power, the means of performing the contract, he should pay; and this view is consistent with the facts in evidence. It seems strange that his executors should hold him up as putting his hand and seal to what he knew he could not perform; and notwithstanding the appeal made to them by the conscience and justice of the court, they appear to me to evince a stronger regard for the property, than the character of the testator. CRAMPTON, J.-I differ from the opinions of my brothers Moore and Perrin; my opinion is wholly founded upon the charge of the Lord Chief Baron. For the defendant it is contended that under the circumstances the plaintiff is entitled to nominal damages only; the jury have given substantial, if not excessive damages; it is peculiarly their province to measure the damages where damages may be given, and the court in general should not inter |