Lessor of money, to wit, the sum of . of the rent aforesaid, for Lessee, &c. years and a half of the said term then elapsed, became, and Usual conclusion. 2. Lessor a gainst assign was, and still is in arrear and unpaid, to the said A B, contrary to the tenor and effect, true intent and meaning of the said indenture, and of the said covenant(r) of the said CD, by him in that behalf, so made as aforesaid, to wit, at, &c. aforesaid. And so the said A B in fact saith,(s) that the said C D (although often requested so to do) hath not kept his said cove nant so by him made as aforesaid, but hath broken the same, and to keep the same with the said A B hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said AB of —.(t) and therefore he brings his suit, &c. Pledges, &c. [The commencement is as ante, 195. and in C, P. as ante, 191. ee of lessee, n. (c), and then proceed as follows: For that whereas hereto for not repair- fore, to wit, on, &c. at &c. by a certain indenture then *and ing, with averment of there made between the said AB of the one part, and one plaintiff's performance of a EF of the other part, (the counterpart of which said indenture, condition precedent.(u) sealed with the seal of the said E F, the said A B now brings * 195 here into court, the date whereof is the same day and year aforesaid,) the said A B for the considerations therein mentioned, did demise, lease, set and to farm let, unto the said E F, his executors, administrators and assigns, all that messuage, &c. [Here set out the premises-the habendum and the (r) The breach may be in the negative of the covenant generally, 3 T. R. 307. or according to the legal effect, 1 Saund. 235. n. 6. As to the averments, and the statement of the breach in general, see vol. 1. Index, tit. Declaration Breach. (s) This statement is unnecessary, for there being a breach of covenant alleged before, it is holden unnecessary to make a repetition of it in the conclusion, 1 Saund. 235. n. 7. (t) In all declarations in covenant, a sum should be inserted sufficient to cover the real demand and interest to the time of final judgment. (u) Most of the notes to the preceding precedent, are applicable to this. An heir, (4 T. R. 75.) and an executor, (1 Salk. 316, 317.) may be declared against as assignee, for a breach of covenant after he became interested. An under-lessee cannot be sued by the lessor in covenant or debt on the lease, Holford v. Hatch, Doug. 188. 445. Cowp. 766. What is prima facie evidence of defendant's being assignee, see Peake's Law Evid 266, 267. Lessor V. Lessee, &c. Covenant to repor' should repair, after have put in repair, and being allowed rough timber. reddendum shortly, as advised in 1 Saund. 233. n. 2. 2 Saund, 366. n. 1. Ante, 192. n. (i), and then state the covenants as follows:] And the said E F did, in and by the said indenture for himself and his executors, administrators and assigns, co. venant, promise and agree, to and with the said A B, his heirs and assigns, (amongst other things,) in manner following, (that is to say,) that he the said E F, and assigns, from and after the said messuage, &c. &c. should have been put in good and tenantable repair by and at the expense of the said A B, his heirs and assigns, should and would at all times, during the continuance of the said demise, at his and their own costs and charges, support, uphold, maintain and keep the said messuage or tenement and buildings, gates, stiles, &c. (as in the covenant,) in good and tenantable repair, order and condition, (being allowed timber in the rough sufficient and proper for such repair, from time to time to be provided and set out by the said A B, his heirs or assigns,) and the same Covenant premises, and every part thereof, should and would leave pair. in such good repair, order, and condition, at the end or other sooner determination, of said term, and should and would peaceably and quietly quit, yield and deliver up to the said A B, his heirs or assigns, without doing, committing, or suffering to be done or committed, any waste, spoil, or damage to the same, or any part thereof. And also should and would Covenant well and sufficiently uphold, cleanse, scour and repair, yearly es, &c. and every year during the said demise, all the ditches, trenches and water-courses, in the piece or parcel of meadow land called to leave in re * 196 to cleanse ditch -meadow, and all other the ditches, trenches and water-courses, in and upon every part of the said other premises thereby demised, as often as necessary, so as the same were kept cleansed, scoured, repaired and in good condition, and should and would deliver up unto the said A B, his heirs or assigns, the same in such good order and condition, at the end of the same term as aforesaid. As by the said indenture re- Reference to ference being thereunto had, will (amongst other things) more fully and at large appear. And the said A B in fact saith, that Assignment after the making of the said indenture, and during the said term thereby granted, to wit, on, &c.(x) at, &c. aforesaid, all (x) The day is not material; it is time of the supposed assignment to usual to insert some day about the the defendant. In an action by the the lease. to the defend aut. Lesson Defendant's entry. * 197 General performance by plaintiff. day of the estate, right, title, interest, term of years then to come and Lessee, &c. unexpired, property, profit, claim and demand whatsoever, of him the said E F, of, in, and to the said demised premises, with the appurtenances, by assignment thereof, then and there made legally came to and vested in the said C D. Whereupon and whereby the said CD then and there entered(y) into and upon all and singular the said demised premises, with the appurtenances, and became and was thereof possessed, and continued so thereof possessed, from thence *until the A. D. when the said demise ended and determined, to wit, at, &c. aforesaid. And although the said AB hath always, from the time of making the said indenture, hitherto well and truly performed, fulfilled and kept, all things therein contained, on his part and behalf to be performed, fulfilled and kept, according to the tenor and effect, true intent and meaning thereof, to wit, at, &c. aforesaid, Yet protesting that the said CD, since the said assignment so general non- made as aforesaid, hath not performed, fulfilled, or kept any performance. thing in the said indenture contained, on his part and behalf, as such assignee as aforesaid, to be performed, fulfilled and kept, according to the tenor and effect, true intent and meaning of the said indenture, the said A B in fact saith, that the said C D did not, nor would, after the said assignment, and during the First breach, in not repair continuance of the said demise, and whilst he was so possessing and leaving out of re-ed of the said demised premises, with the appurtenances as pair. aforesaid, at his own costs and charges, support, uphold, maintain and keep, all and every the said messuage or tenement, and buildings, gates, &c. (as in the covenant,) of the said demised premises, in good tenantable repair, order and condi Defendant's assignee of the reversion, he must set been intermediate assignments, see (y) This does not seem necessary, ante, 193. n. (n). 197 Lessor V. Lessec, &c. Averment of performance conditions * 198 tion, (although the said messuage or tenement, and out-buildings, in the possession of the said E F at the time of making the said indenture, were after the making thereof, to wit, at, &c. put in good and tenantable repair, by and at the expense of the by plaintiff of said A B, and although timber in the rough, sufficient and pro- precedent. per for such repairs, was allowed, and from time to time pro- (z) vided and set out by the said A B, to wit, at, &c. aforesaid,) nor did, nor would, leave the same premises in such good repair, order and condition, at the determination of the said term, according to the form and effect of the said indenture in that behalf, but on the contrary thereof he the said CD, after the making of the said indenture, and after the said assignment to him the said CD, as aforesaid, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances as aforesaid, to wit, on, &c. and from thence for a long space of time, to wit, from thence until the determination of the said term, suffered and permitted the said messuage, dwelling-house, buildings, gates, &c. (as in the covenant) to be and continue, and the same were for and during all that time, ruinous, prostrate, fallen down, and in great decay, for want of needful and necessary maintaining, supporting, upholding and keeping the same; and the said C D, at the determination of the said term, left the same premises in such repair, order and condition, as last aforesaid, contrary to the form and effect of the said indenture, and of the covenant so made by the said E F for himself and his assigns, as aforesaid, to wit, at, &c. aforesaid. And the said A B in fact Second further saith, that the said CD did not, nor would, yearly and not cleansing breach, for every year, during the continuance of the said demise, and ditches, &c. whilst he was so possessed of the said demised premises, with the appurtenances, as aforesaid, well and sufficiently uphold, cleanse, scour, or repair, all the ditches, trenches and watercourses, in the said piece or parcel of meadow land, called meadow, and all other the ditches, trenches and watercourses, in or upon the said premises, by the said indenture demised, as often as was necessary, so as to keep the same cleansed, scoured, repaired, and in good condition; nor did, (z) As to conditions precedent, vol. 1. Index, Condition Precedent. see Saund. 352. c. Willes, 496. Ante, nor would deliver up the same unto the said A B, in such good order and condition at the end of the said demise, according to the form and effect of the said indenture in that behalf, but wholly neglected so to do, and on the contrary thereof he the said CD, after the making of the said indenture, and of the said assignment, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances, to wit, on. &c. and from thence for a long space of time, to wit, from thence until the determination of the said demise, suffered and permitted the said ditches, trenches and water-courses, *in the said piece or parcel of land called meadow, and all other the ditches, trenches and water-courses, in the said premises, by the said indenture demised to, be and continue, and the same were for and during all the time last aforesaid, foul, miry, choaked up and ruinous, out of repair, and in bad order and condition, for want of well and sufficiently cleansing, scouring and repairing as aforesaid; and at the determination of the said term, he the said C D delivered up the same unto the said A B in such order and condition as last aforesaid, contrary to the form and effect of the said indenture and of the said covenant in that behalf made as aforesaid, to wit, at, &c. aforesaid. And so the said A B in fact, saith, that the said C D (although often requested so to do) hath not kept the said covenants so made by the said E F for himself and his assigns, with the said A B, in manner and form aforesaid, but hath broken the same, and to keep the same with the said A B hath hitherto wholly refused, and still refuses so to do. To the damage of the said A B of -. and therefore he brings his suit, &c. Breaches of different covenants between lessor and lessee, &c. may readily be framed according to the particular circumstances of each case, and in general may be in the negative of the words of the covenant; see 3 T. R. 307. and ante, 194. n. (), vol. 1. chapter on declarations. The above precedents may therefore, in this respect suffice. But as difficulties frequently occur in stating the different titles of plaintiffs in covenant, the following forms are given, and which are ar ranged nearly according to the plan in 2 Bl. Com. respecting real estates. |