be in the negative, or in the disjunctive, he must specially shew which of them he has performed. (q) The performance must be pleaded in the terms of the covenant; for where the breach was for not repairing, and the defendant pleaded that he had pulled down and rebuilt the premises, this was held bad on demurrer. (r) In covenant for non-payment of rent, the defendant may 5. Solvit diem. plead solvit ad diem; but solvit post diem, or levie per distress, are no pleas in covenant for the reason already given. (s) accord, &c. To an action for breach of covenant for non-payment of 6. Release, rent, the defendant, as has been already seen, may plead a release, or accord and satisfaction, in the same manner as to an action for debt. (t) If the defendant mean to rely upon a set-off in covenant, 8. Set-off. he must plead it, and cannot give a notice with a plea of non est factum; for althongh a different doctrine once appears to have prevailed; (u) it is now settled that there is not any general issue in covenant, and, consequently, that the statute 2 Geo. II. c. 22, does not apply to this form of action. (v) Unliquidated damages, arising from the breach of other covenants to be performed by the plaintiffs, cannot be pleaded by way of set off, (w) neither can a sum certain be set off against the plaintiff's unliquidated demand. (x) (q) Co. Lit. 303. b. Mints v. Bethill, Cro. Eliz. 749. Cropwell v. Peachy, ibid. 691. Norton v. Syms, Moore, 856. Fines v. Dell, Style, 163. Laughwell v. Palmer, 1 Sid. 87. Cutler v. Southern, 1 Saund. 116. Lord Arlington v. Merricke, 2 Saund. 410. (r) Wood v. Avery, 2 Leon. 189. (s) Supra, 612. (t) Supra, 615; and see Braddick v. Thompson, 8 East, 344. Thompson v. Brown, 7 Taunt. 656. (u) Gower v. Hunt, Bull. N. P. (v) Oldenshaw v. Thomson, 5 M. & S. 164. (w) Howlett v. Strickland, Cowp. 56. Weigall v. Waters, 6 T. R. 488. (x) Cooper v. Robinson, 2 Chitt. Rep. 161. IV. In waste. New general rule. IV. The writ of waste is abolished by the 3 & 4 Wm. IV. c. 27. To an action on the case in the nature of waste, the defendant may plead not guilty: whereby he puts the whole declaration in issue, and compels the plaintiff to prove his title as laid in the declaration, and also the kind of waste stated in it. (a) By the late rules of pleading, it is declared that in actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty, or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement. And no other defence than such denial shall be admissible under that plea, and all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration, and all matter of confession and evidence shall be pleaded specially as in actions of assumpsit. (b) (a) Leigh v. Leigh, Lutw. 1547. Bing. 471. 2 Cromp. & Mees. 23, and see Tidd's New Prac. 365. 625 CHAPTER THE SECOND. Of the Tenant's Remedies against his Landlord. SECTION I. FOR BREACH OF COVENANT OR AGREEMENT. covenant. WHERE the landlord is guilty of a breach of his By action of covenant with his tenant, an action of covenant is the proper remedy. The nature of this action has been already discussed; and it here only remains to point out, in addition, the particular manner in which the tenant should assign a breach of the covenant for quiet enjoyment either express or implied. By the 3 & 4 Wm. IV. c. 42, actions of covenant must be brought within ten years after the end of the then present session, or within twenty years next after the cause of such action. (a) In assigning a breach by the entry of the lessor himself, it is sufficient to say, that he entered and ousted the plaintiff, without shewing under what pretence or title the entry was made: (b) and so where the covenant is against the entry of any particular person, a general averment that such person entered, without shewing whether by right or wrong, is sufficient. (c) But where the lessee has been evicted by a stranger, it is absolutely necessary to shew that the stranger entered, not by wrong, or by a title derived from the lessee himself, (d) but by force of a legal and an elder title. (e) Greater particularity was formerly required in setting out this title than at present; for upon a covenant that the lessee should enjoy against F. E. and all others claiming under him, the plaintiff alleged as a breach, that he was ousted by J. S. claiming title under the said F. E.; the Court of Queen's Bench having overruled an objection that it was not shewn how J. S. claimed his title, or by what conveyance, and judgment being thereupon given for the plaintiff, that judgment was afterwards reversed by the opinion of all the justices and barons of the Exchequer Chamber. (f) But modern decisions have done away with the necessity of such particular statements. In an action on a covenant in a lease for quiet enjoyment, the breach assigned was, that at the time of the demise to the plaintiff, one J. B. Pierson had lawful right and title to the premises, and having such lawful right and title, entered and ejected plaintiff. On special demurrer to the declaration, it was objected, that the plaintiff, in alleging the eviction, ought to have shewn the title of J. B. Pierson; or at least it should have been averred that J. B. Pierson had such a title as was inconsistent with the plaintiff's title to possess the premises; and, though it was alleged that J. B. P. had lawful right and title to the premises, he might only have had a title to recover in a real action, and not a right of entry; and that the mis (d) Kirby v. Hansaker, Cro. Jac. 315. Wotton v. Hele, 2 Saund. 177. (e) Chantflower v. Priestley, Cro. Eliz. 914. S. C. Yelv. 30. Norman v. Foster, 1 Mod. 101. S. C. 3 Keb. 246. Rashleigh v. Williams, 2 Ventr. 62. And see Skinner v. Kelbys, 1 Show. 70. Buckley v. Williams, 3 Lev. 325. Jordan v. Twells, Ca. temp. Hardw. 172. (f) White v. Ewer, Cro. Eliz. 823. S. P. Kirby v. Hansaker, Cro. Jac. 315. Mosse v. Archer, 3 Mod. 135. Wotton v. Hele, 2 Saund. 177. S. C. 1 Mod 66. 1 Lev. 301. But see Proctor v. Newton, 2 Lev. 37. chief to be apprehended from this loose mode of pleading was, that it might give a cover to an eviction by collusion. The Court overruled the objections, and gave judgment for the plaintiff; Lord Kenyon, C. J., observing, that if the declaration were certain to a common intent, it was sufficient; that it would be doing violence to the words to say, that the lawful right and title which it was stated J. B. P. had, did not legalize his entry; that the fair import of the words was, that he had lawful right and title to do that which he did. Buller, J., said, that when it was stated, "that the party having a lawful right and title entered," it was the same as saying," he entered by lawful right and title." (g) In the preceding case, the objection "that the title of the party evicting was not particularly set forth," was not pressed upon the Court in a subsequent case, however, this objection recurred, and the attention of the Court was directed to it; but it was overruled, notwithstanding the decision in error in the Exchequer Chamber, in White v. Ewer. (h) And Lord Kenyon, C. J., in delivering the opinion of the Court said, that to compel the plaintiff to set forth the particulars of the title of the person who entered on him, would impose insuperable difficulties on him; for the knowledge of those particulars could not be acquired, except by an inspection of title deeds, to which the plaintiff could not have access. (i) : Where J. S. had leased lands to A. for years, and A. assigned part of them over to B. with a covenant for quiet enjoyment, and B. afterwards assigned them over to C., and C. having been evicted by J. S. for a breach of covenant committed by A. previously to the assignment, an action was brought by C. for the ouster by J. S., but the declaration contained no averment of the title of J. S., the Court held, that inasmuch as the declaration set out the indenture from A. to B., wherein it was recited that J. S. by indenture demised the premises to A., they would presume after verdict (g) Foster v. Pierson, 4 T. R. 617. (h) Cro. Eliz. 823. Cited supra. (i) Hodgson v. East India Company, 8 T. R. 278. |