Declaration.

Plea.

General issue.

Statute of limitations.

Nil habuit in

so where the premises have been held by the sufferance and permission of two persons, one of whom is dead, the plaintiff must not allege that they have been held by his sufferance and permission only (a).

The defendant under the general issue may give evidence of facts amounting to an eviction (b); and if he is executor, and is sued as assignee of the term, he may give in evidence, that the land is of less value than the rent (c).

The statute of limitations is a good defence in an action for use and occupation, against a person who has been tenant from year to year, but who has not within the last six years occupied the premises, paid rent, or done any act from which a tenancy can be inferred, although the tenancy has not been determined by a notice to quit (d).

The defendant will not be allowed to impeach the title of the tenementis. plaintiff by whose permission he occupied the premises. Therefore a plea of nil habuit in tenementis cannot be pleaded even where the declaration does not state the premises to belong to the plaintiff, if it is alleged, that the defendant occupied by the permission of the plaintiff (e).

Evidence.

Title of the

plaintiff.

Defendant's

occupation.

The plaintiff must prove that the defendant occupied the premises by his permission. This may be done by the production of the lease or agreement, if there should be one, and by proving it in the usual manner, by calling the attesting witness, or if there be no attesting witness, by giving evidence of the handwriting of the party. If there be no lease or agreement, the fact of the defendant having occupied by the permission of the plaintiff, may be proved by giving in evidence any of those circumstances which are sufficient to constitute a good title to sue in this species of action (f), as that the defendant has paid rent to the plaintiff, or has submitted to a distress by him.

It is primâ facie sufficient for the plaintiff to shew an occu

pation of the premises by the defendant, and the continuance of the tenancy will be presumed until the contrary appear (a). The mode in which the occupation may be determined has been already stated (b). In an action for use and occupation, charging the defendant, who was administrator of the original lessee, as assignee, for rent due after the testator's death, it was held, that although the defendant had taken possession, yet having proved that the premises had been productive of no profit to him, and that eight months after the death of the intestate, he had offered to surrender them to the plaintiff, such proof constituted a good defence to the action (c).

Evidence.

If the local situation of the premises has been described, the Situation of preproof must correspond with that description (d).

The statute 11 Geo. 2, c. 19, s. 14, enacts, that where any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff shall not be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered. But where A. took a farm under an agreement, which he never signed, and the material terms of which his lessor failed to fulfil, it was held that the jury might ascertain the value of the land without regarding the amount of rent reserved by the agreement (e).

If it appears that the defendant held under a written agreement, which for want of a stamp cannot be received in evidence, the plaintiff will not be allowed to go into general evidence: for the agreement is the best evidence of the nature of the occupation(ƒ), but where parol evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it should appear that the agreement was between the parties as landlord and tenant, and that it continued in force to the very time to which the parol evidence applies (g).

(a) Harland v. Bromley, 1 Stark. N. P. C. 455. Ward v. Mason, 9 Price, 291. As to evidence of tenancy see Townsend v. Davis, Forrest, 120.

(b) Ante, p. 410.

(c) Remnant v. Bremridge, 2 B. Moore, 94. 8 Taunt. 191, S. C. (d) See ante, p. 411.

(e) Tomlinson v. Day, 2 Brod. & Bing. 680. 5 B. Moore, 558, S. C. and see Dunk v. Hunter, 5 Barn. & Ald. 326.

(f) Brewer v. Palmer, 3 Esp. N. P. C. 213. Ramsbottom v. Mortley, 2 M & S. 445. 1 Phill. Evid. 486. (6th edit.) (g) Doe d. Wood v. Morris, 12 East, 237, 2 Phill, Evid. 104. (6th edit.)

mises.

Damages.

Covenant.

Construction of A COVENANT is to be expounded with a regard to its context, covenants in ge- and such exposition must be upon the whole instrument ex ante

neral.

Express or im

plied.

cedentibus et consequentibus, and according to the reasonable sense and construction of the words (a). The words of a covenant must be taken most strongly against the covenantor (b), a mode of interpretation which must be qualified by a due regard to the intention of the parties, as collected from the whole context of the instrument (c). It is immaterial in what part of a deed any particular covenant is inserted, for in construing it, the whole deed must be taken into consideration, in order to discover the meaning of the parties (d). In the construction of a covenant the acts of the parties, or their interpretation of the instrument, are not to be considered. In one case indeed, where it was doubted, whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively, the court of King's Bench held that the legal effect was a perpetual renewal, on the ground that the parties themselves had by their own acts put a construction on the covenant, and that the court could not say the contrary (e). But this case has been frequently disapproved of, and a different rule is now established (f).

The word "demise" or "grant" in a lease for years, contains an implied covenant for quiet enjoyment during the term (g). Whether the words yielding and paying in a lease, constitute

(a) Per Ld. Ellenborough, C. J. Iggulden v. May, 7 East, 241. Trenchard v. Hoskins, Winch, 93. Barton v. Fitzgerald, 15 East, 541. Nind v. Marshall, 1 Brod. & Bing. 326.

(b) Per Mansfield, C. J. Flint v. Brandon, 1 Bos, & Pul. N. R. 78. Shep. Touch. 166.

(c) Per Ld. Eldon, C. J. Browning v. Wright, 2 Bos. and Pul. 22.

(d) Per Buller, J. Duke of Northumberland v. Ward Errington, 5 T. R. 526. Kingston v. Preston, cited in Jones v.

Barkley, Dougl. 684. 1 Saund. 60, a, (notes).

(e) Cooke v. Booth, Cowp. 819.

(ƒ) Baynham v. Guy's Hospital, S Ves. 498. Eaton v. Lyon, 3 Ves. 694. Moore v. Foley, 6 Ves. 238, Iggulden v. May, 9 Ves. 333. 2 Bos. and Pul. N. R. 482, S. C. Clifton v. Walmsley, 5 T. R. 566. 1 Phill. Evid. 528. (6th edit.)

(g) Nokes's case, 4 Rep. 80, b. Com. Dig. Cov. (A. 4). Shep. Touch. 160. See ante, p. 259; and Hob. 4, as to the warranty arising on the word dedi.

an express or implied covenant, for the payment of the rent, ap- Construction of pears not to be settled (a).

covenants for title.

In the construction of covenants for title, a question frequently Effect of rearises on the effect of restrictive words, as affecting other words strictive words. in the same covenant, or in other covenants. The cases on this subject, which are very numerous, will be considered under the following heads. 1. Where general words are restrained by subsequent qualified words in the same covenant. 2. Where general words are not so restrained. 3. Where a general covenant is restrained by qualified words in another covenant. 4. Where a general covenant is not restrained by qualified words in another covenant.

venant.

In the early case of Broughton v. Conway, 7 Eliz. (b), where 1. Where genethe defendant covenanted "that he had not made any former ral words are regrant, &c. whereby that grant might be in any manner impaired, strained by &c., but that the assignee, &c. might quietly enjoy without qualified words impediment by him or by any other person," it was held, that in the same cothe words, "but that," depended on the precedent matter, and were no new matter or sentence, so that the covenantor was held to have covenanted only against his own acts. Again, in the case of Peles v. Jervies, 40 Eliz. (c), where tenant pur autre vie leased for twenty-one years, and covenanted that he had not done any act, but that the lessee should or might enjoy it during the years, it was held, that "but," referred the words subsequent to the words precedent. So where Lord Rich covenanted, that certain lands were of the value of 1,000l. and so should continue notwithstanding any act done, or to be done by him, it was adjudged, that the covenant was not broken, unless some act done by him were the cause of the breach. (d)

Where there was a covenant for quiet enjoyment during a term, without the lawful let, &c. of J. M. his executors, &c., or any

(a) That the words make an express covenant, see Helier v. Casbard, 1 Sid. 266, nota. Newton v. Osborn, Sty. 387. Porter v. Swetnam, Sty. 406, 431, and see 1 Rol. Ab. 519, 1. 26. That the words make only an implied covenant, see 1 Sid. 447, nota. Com. Dig. covenant. (A. 4.) 1 Saund. 241, b, (note) 5th edit. Harper v. Burgh, 2 Lev. 206. Procter v. Johnson, 2 Brownl. 212.

title.

Construction of of them, or any other person or persons whomsoever, having, or covenants for lawfully claiming, any estate, &c., in the premises; and that free and clear, and freely and clearly discharged, or otherwise by the said J. M. his heirs, &c., defended, &c., from all former gifts made or suffered by J. M., or by their, or either of their acts, &c.; and this covenant was preceded by a covenant, that the lease was a good lease notwithstanding any act of J. M., and followed by a covenant for further assurance by J. M. his executors, &c., and all persons whomsoever claiming, during the residue of the term, any estate in the premises under him or them; it was held, (Park, J. dissentiente), that the covenant for quiet enjoyment extended only against the acts of the covenantor, and those claiming under him, and not against the acts of all the world. Richardson, J. and Burrough, J. considered the qualifying words as part of the covenant for quiet enjoyment. (a)

2. Where ge

neral words are not restrained by qualified

words in the

The plaintiff declared in covenant, that the defendant bargained and sold to him certain lands, which he had purchased of Woolaston, &c., and covenanted, that he was seised of a good estate in fee according to the indenture made to him by Woolaston, &c. Breach, that he was not seised of a good estate in same covenant. fee. The defendant pleaded, that he was seised of as good an estate as Woolaston, &c. conveyed to him; to this the plaintiff demurred, and judgment was given for him, because the covenant was absolute, that the defendant was seised of a good estate in fee, and the reference to the conveyance by Woolaston, &c., only served to denote the limitation and quantity of estate, not the defeasibility or indefeasibility. (b)

3. Where a ge

Where a man demised and granted a house for a term of neral covenant years, and covenanted, that the lessee should enjoy the same is restrained by during the term, without eviction by the lessor, or any claiming qualified words under him, the court held, that the latter special covenant qualified the generality of the covenant in law, raised by implication from the words demised and granted. (c) According to Croke's

in another covenant.

(a) Nind v. Marshall, 59 Geo. 3. 1 Brod. and Bing. $19. The case of Browning v. Wright, 2 Bos. and Pul. 13, post, might, perhaps, be classed under this head. See also Horsfall v. Testar, 1 B. Moore, 89.

(b) Cooke v. Founds, 13 Car. 2. 1 Lev. 40; and see Noble v. King, ↑ H. Bl. 34.

(c) Nokes's case, 41 Eliz. 4 Rep. 80, b. Cro. Eliz. 674, S. C. Merrill v. Frame, 4 Taunt. 329.