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the questions on these issues for the consideration of the Court, and directed a verdict for the plaintiffs for the amount of the note and interest, giving the defendant leave to move to enter a nonsuit, or a verdict for him on the second and third issues.

Welsby now moved accordingly.(a)-As to the issue on the second plea, the replication of Non est factum put in issue only the plaintiff's execution of the deed-poll, not the release alleged to have been contained in it. The plea states that the plaintiffs executed a certain deed, and that by that deed they released Goddard's debt to them, and so released the defendant: the replication merely denies that they executed the deed. Such would be the construction of Non est factum as a plea, by the express provisions of the New rules; and the same construction ought to apply to a subsequent pleading. The plaintiffs should have set out the deed on oyer; and, if, when so set out, it did not in legal effect sustain the plea, they should have demurred to the plea. [PATTESON, J.Surely the replication puts in issue the execution of such a deed as the *539] plea alleges, namely, *a deed releasing Goddard, and also the defendant.] Secondly, the release is absolute, notwithstanding the proviso, the defendant not being shown to be a consenting party to the composition. In Kearsley v. Cole, 16 M. & W. 128,† the composition deed contained only a covenant not to sue, and not a release: and, although the Court say they do not mean to intimate any doubt that in such a case a reserve of remedies against the surety, even without his consent, prevents his discharge, that was extrajudicial; for the surety there had consented, and had himself executed the deed. But a creditor cannot release one joint and several debtor, and hold another liable by a reserve of remedies; Cheetham v. Ward, 1 Bos. & P. 630, Nicholson v. Revill, 4 A. & E. 675 (E. C. L. R. vol. 31). Here, the deedpoll was an absolute release of Goddard; and that operated as a release of the defendant, the co-maker with him of a joint and several promissory note, notwithstanding the declaration of Goddard's creditors by the proviso, that the creditors do not intend it to operate so.

Then the defendant is entitled to the verdict on the third issue; for the only matter put in issue by the replication to the third plea is, whe ther the agreement of composition alleged in that plea was in fact made; and that it was made was clearly proved by the deed.(b)

Car. adv. vult. PATTESON, J., on a subsequent day in this term (April 30th), delivered the judgment of the Court.

We are of opinion that this rule for a nonsuit must be refused. *540] The plea stated a release executed by the plaintiffs to one Goddard, who joined in the note on which the action was brought, whereby the defendant was released. The plaintiffs replied Non est factum,

(a) Before PATTESON and ERLE, JS. COLERIDGE, J., had left the Court.
(6) It does not appear that any express decision was pronounced as to this point.

without setting out the deed on oyer. It is clear that this replication put in issue, not only the execution of the deed, but the construction of it as alleged in the plea: it amounts to a denial that the plaintiff executed a deed having such effect as there stated. Had the deed been set out on oyer it would have been otherwise; for then the plea would have been inconsistent in itself if the deed set out in it did not bear the construction put on it by the other part of the plea, and so the objection would be raised on demurrer. The distinction is plain, and was acted on in the case of Trott v. Smith, 12 M. & W. 688,†(a) in the Exchequer Chamber, and afterwards in this Court last Hilary term in the case of Bain v. Kirk.(6) Now the deed contained an *express clause that the release to Goddard should not operate to discharge any one [*541 jointly or otherwise liable to the plaintiff for the same debts. It is plain, therefore, that it did not release the defendant. The reason why a release to one debtor releases all jointly liable is, because, unless it was held to do so, the co-debtor, after paying the debt, might sue him who was released for contribution, and so in effect he would not be released; but that reason does not apply where the debtor released agrees to such a qualification of the release as will leave him liable to any (a) Reversing judgment of the Court of Exchequer in Trott v. Smith, 10 M. & W. 453.† (b) Bain v. Kirk, referred to in the text, was an action of covenant on articles of agreement amongst the members of a family, for the purpose of winding up the affairs of their deceased father, whose assets were not sufficient to pay in full the legacies he had left. The plaintiff was one of the children; the defendant was devisee in trust; and the real question in dispute was, whether, on the true construction of the agreement, a covenant on the part of the defendant to pay the plaintiff a sum of 27007. by instalments was absolute, or dependent upon the testator's assets proving sufficient to pay the 27007.

The declaration excused profert on the ground that the deed was in the custody of the defendant, and then set forth with a testatum existit the greater part of the deed, and assigned as breach the non-payment of 10007., an instalment. The defendant set out the whole deed in his custody in hæc verba: and then pleaded Non est factum.

On the trial, before ROLFE, B., at the Liverpool Spring assizes, 1848, the deed was proved to have been executed by the defendant; but it was contended that on the true construction of the whole instrument the covenant to pay the money was dependent on sufficiency of assets, and that the part of the deed set out in the declaration showed an absolute covenant; and the defendant contended that this was a variance, and entitled him to a verdict on Non est factum. The learned Judge directed a verdict for the plaintiff.

In Easter term, 1848, Cowling obtained a rule nisi for a new trial on the ground of variance; or, in case the setting forth of the deed as above stated had the same effect as if it were set forth on oyer, to arrest the judgment, because there was no averment of the sufficiency of assets, which was alleged to be a condition precedent.

In Hilary term (January 23d) 1849, Atherton and Needham showed cause, and Cowling supported the rul After the argument had proceeded some length it was suggested by The Court (Lord DENMAN, C. J., PATTESON, COLERIDGE, and WIGHTMAN, Js.) that, as there was a substantial question between the parties, it would be for the benefit of both to have the opinion of the Court on the construction of the deed. Counsel on both sides assented: and it was agreed, with the approbation of the Court, that the parties should abide the decision of the Court on the true construction of the deed, without any regard to the form of the pleadings. After this agreement the argument and the judgment were confined to the construction of the deed: the decision was in favour of the plaintiff; and the rule was discharged. As the Court expressed no opinion on the point of pleading (though, as appears from the statement in the text, they were prepared to decide it), and the judgment given turned upon the special terms of the deed, it was not considered necessary to report the case.

(From the notes of C. Blackburn, Esq.)

rights of the co-debtor. Neither does such a clause qualifying the release *operate as a fraud on other creditors; for, as it appears *542] on the face of the deed, all who execute that deed are aware of it and agree to it. We are clearly of opinion that the verdict was right. Rule refused.(a)

(a) Reported by H. Davison, Esq.

COLLINS, Executrix of ROBERT COLLINS, v. CROUCH, surviving Executor of JANE PLAW. April 20.

In an action by executrix of assignor of a lease against executrix of assignee, upon a covenant by assignee to perform the covenants in the lease, and indemnify assignor for the breach of any of them, defendant pleaded Plenè administravit, and at the trial proved that the entire assets, including the consideration money for a sale by him of the lease in question, had, before the breach of covenant complained of, been applied to the payment of simple contract debts. Held, a sufficient defence; for that the executor was not bound to retain the proceeds of such sale for the purpose of indemnifying against any future breach of covenant. Although some of the breaches in question were by non-payment of rent.

COVENANT. The declaration set out a lease, dated 30th October, 1828, by William Pike to Robert Collins, plaintiff's testator, of a house, &c., for twenty-one years, at the clear yearly rent of 521. 108., to be paid quarterly. The lease contained the usual covenants to pay rent, rates, and taxes, to repair, and to paint. The declaration then set out an indenture of 30th March, 1829, between Collins of the one part and Jane Plaw of the other, by which Collins assigned the premises to Jane Plaw, defendant's testatrix, for the remainder of the term, “subject nevertheless to the payment of the said yearly rent or sum of 521. 108. reserved by the said indenture of lease, and to the observance and performance of the covenants, clauses, conditions, provisoes, and agreements therein contained, and *which, from and after the 25th *543] day of the said month of March, 1829, on the part of the tenant, lessee, or assigns thereof, were and ought, or which should be, to be paid, kept, observed, or performed: and the said Jane Plaw did by the last-mentioned indenture, for herself, her executors or administrators, covenant, promise, and agree, to and with the said Robert Collins, his executors or administrators, that she, the said Jane Plaw, her executors or administrators, should and would, from and after the said 25th day of March, A. D. 1829, aforesaid, well and truly pay, satisfy, and discharge the said yearly rent of 521. 10s., so reserved, &c., and to stand to, abide by, observe, perform, fulfil, and keep all and every the covenants," &c., "in the said indenture of lease contained, and which on the part of the tenant, lessee, or assignee thereof, were and ought to be paid, kept, done, and performed; and of and from the same, and all costs, charges, damages, and expenses, to be incurred by reason and on account of any breach, default, or neglect of, or in payment, observance, or performance

of, the same respectively as aforesaid, should and would save harmless and keep indemnified the said Robert Collins, his executors and administrators, and his or their lands and tenements, goods, chattels, and effects whatsoever." The declaration then stated that, after entry into possession by Jane Plaw, and after her death while such tenant, certain arrears of rent had become due, and certain dilapidations occurred; and that plaintiff, as executrix as aforesaid, had been compelled to pay part of the arrears of rent, the costs of repair, and other expenses, to Pike, the landlord. "And so," &c.: breach: that defendant "hath not kept the said covenant so by her the said Jane Plaw made as aforesaid, but *hath broken the same," &c. Plea: Plenè administravit. Issue thereon.

[*544

On the trial, before Lord DENMAN, C. J., at the sittings in Middlesex after last Hilary term, it appeared that defendant, after Jane Plaw's death, had assigned the lease to a Mr. Lake for 1257. 108. ; and that the entire assets in the defendant's hands had been exhausted by the payment of a simple contract debt of 1007. due from Jane Plaw to the plaintiff (who had taken proceedings at law to recover it) as R. Collins's executrix, and of the funeral and other expenses. The breaches complained of, and which the plaintiff had been compelled to pay for, had occurred since the above-mentioned payments by the defendant: some were by non-payment of rent, some by non-repair. It was contended on the part of the plaintiff that these payments, being for simple contract debts, furnished no answer to the present claim, which was founded on a specialty debt; and that the defendant was bound to apply such assets as came to his hands to the payment, in the first place, of such specialty debt, of which it was proved he had had full notice. The Lord Chief Justice directed the jury to find a verdict for the defendant, if they were of opinion that the assets had been disposed of as stated by him; and a verdict was found for the defendant.

Watson now moved for a new trial on the ground of misdirection. The defendant is liable as executor, on the testatrix's covenant to indemnify, notwithstanding that he may have disposed of all the assets otherwise. It is contended, on the part of the defendant, that debts arising from breaches of the covenants in the deed *of assignment do not rank before simple contract debts: but that is so, at all events, [*545 only where the breaches of covenant have occurred before the death of the covenantor. Here the covenant to pay rent has been broken since the death of the covenantor, and since the sale of the lease by her exeHe was, therefore, bound to retain such profits as came to his hands by the sale for the purpose of indemnifying for such breaches, and had no right to apply them in the first instance to the payment of simple contract debts. In 2 Williams on Executors, 1495,(a) it is said, “So, where the executor is charged as executor, in an action of covenant, for

(a) 4th ed.

non-payment of rent incurred in the defendant's own time, plenè adminis travit is a good plea, although the defendant might have been charged as assignee of the term." "But," it is added, (a) "if issue be joined upon this plea, and it should be proved that the executor has received any profit from the land, there would, it should seem, be a verdict against him: for he could not legally apply the profits to any other purpose than payment of the rent." [PATTESON, J.- Profits" there seems to mean yearly profits.] It is not necessary that the profits should be yearly: the executor is bound so to apply any profit that he has derived from the land. In the present case, the amount of money received by him for the sale of the lease is a profit of that kind: and so would a premium be, or a grassum, supposing he had underlet at a peppercorn rent. In each of these cases he would have received a profit by disposing of the interest in the land; and such profit he is bound to apply to the payment of rent. Read v. *Blunt, 5 Sim. 567, referred to in 2 Williams *546] on Executors, 878,(6) may be relied on for the defendant. But there is nothing to show that the assets in that case included profits derived from land. [ERLE, J.-Do you say that the defendant was bound to retain the profits until a breach of covenant occurred?] It is not necessary to go so far in this case, as to breaches of every kind: there are breaches of the covenant to pay rent, as well as of the covenant to repair. [PATTESON, J.-Suppose the profits exceed the rent due; is he to retain the excess? ERLE, J.-An assignee assigning over is exonerated; is not the defendant in this position?] Here there is a distinct covenant to indemnify for breaches: the defendant is still bound by that. PATTESON, J.-There will be no rule in this case. The action is brought, not by the party entitled to rent, but by the representative of the original lessee against the representative of the assignee, upon a covenant by the assignee, not to pay rent, but to indemnify for all breaches of the covenants in the lease. The assets had been applied before the breaches complained of: and the only question is, whether the doctrine which has been quoted from Williams on Executors applies to the present case. That doctrine, I apprehend, applies only when the action is brought upon a covenant to pay rent. The executor is there held chargeable only when he is in a position to be sued as assignee, that is, when he is in the receipt of the rents and profits of the land. The defendant here had parted altogether with the interest in the land, and had applied the proceeds, as he *was entitled to do even up *547] to one day before an actual breach of covenant, according to Read v. Blunt, 5 Sim. 567. There is no authority to show that the executor is bound to retain the profits for the purpose of satisfying a future breach; still less can that be maintained where the assets in his hands are not profits, in the ordinary sense, but the value of the land which be

(a) 1496, note (p).

(b) See note (n) there.

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