Of the declara- himself, he need not set out any title in the declaration. (a) But tion. where he sues as assignee of the reversion, he must set out the Title of plaintiff. title of the lessor, and deduce his own title from him. (b) Thus if a termor make a lease, and assign the reversion, the assignee must set forth in his declaration all the mesne assignments of the term down to himself; for he is privy to them, and therefore he shall not be allowed to plead generally, that the lessee's estate, of and in the demised premises, came to him, or to some other person under whom he claims, by assignment. (c) But he need not allege any notice to the defendant of the assignment of the reversion to himself. (d) Of defendant. Breach. With regard to the statement of the defendant's title, a more general form of pleading is allowed, and it may be alleged that the estate and interest in the premises came to the defendant by assignment; for the plaintiff is a stranger to the defendant's title, and therefore cannot set it out particularly. (e) Nor is it necessary to state quo jure, the defendant became assignee, and therefore, in declaring against an heir, he may be charged as assignee generally. (f) But it is not sufficient in declaring against an assignee of a term to say that the tenements came to the defendant by assignment, but it must be shewn that he is assignee of the term. (g) The breach assigned must be co-extensive with the import and effect of the covenant. (h) And where the matter lies properly in the knowledge of the covenantor, a breach in the words of the covenant is sufficient. Thus, where, on a covenant that the defendant had full power, and lawful authority to demise, the breach assigned was, that the defendant, at the time of making the said indenture, had not full power and lawful authority to demise the premises, according to the form and effect of the indenture; after verdict for the plaintiff, and judgment in the King's Bench, it was objected, on error in the Exchequer Cham (a) Aleberry v. Walby, 1 Str. 230. (b) 1 Saund. 2383, a, note, 5th edit. (d) Com. Dig. Pleader, '(2 W. 14). Ante, p. 443. (S) Derisley v. Custance, 4 T.R. 75. tion. ber, that it was not stated in the declaration who had title to the of the declarapremises at the time of making the indenture; but it was resolved that the assignment of the breach was good; because it had pursued the words of the covenant negative, and that it lay more properly in the notice of the lessor, what estate he himself had in the land, than of the lessee who was a stranger to it; and therefore the defendant ought to have shewn what estate he had in the land at the time of the demise, whereby it might appear to the court that he had full power and authority to demise. (a) And where the declaration stated that plaintiff by indenture let to defendant's testator a house for years, and the lessee covenanted to repair it well from time to time, during the term, and at the end of the term, to leave the same well repaired; and the breach assigned was, that the lessee did not leave it well repaired at the end of the term, an exception was taken, because the declaration did not shew in what point the house was not well repaired, but it was overruled, for the breach being according to the covenant, it was sufficient; but if the defendant had pleaded that at the end of the term he delivered it up well repaired, then if the plaintiff will assign any breach, he ought particularly to shew in what point it was not well repaired, so as the defendant might give a particular answer thereto. (b) So where in covenant the declaration stated that the defendant by indenture demised to the plaintiff a messuage and certain land in C. for sixty years, and covenanted that he was then lawfully seised in fee of an indefeasible estate, and assigned a breach, that at the time of making the indenture he was not lawfully seised in fee, and the defendant pleaded non est factum; after verdict for the plaintiff, it was moved in arrest of judgment, that the declaration was not good, because the breach was too general, not shewing that any other was seised, but the objection was disallowed, because as the covenant is general, so the breach may be assigned generally, especially after the plea of non est factum, which admits the breach, if it had been his deed. (c) As a covenant for quiet enjoyment does not extend to the tortious acts of a stranger (d), it is essentially necessary, where the tion. Of the declara- plaintiff has been disturbed by a stranger, to shew in the declaration that such act of disturbance was not tortious. Therefore, where the breach was, that one H. E. entered upon the plaintiff, and ejected him, upon demurrer, the court held that the entry of H. E. must be taken to have been by wrong, as no title was laid in him. (a) It must also appear that the title of the party entering, is not derived from the plaintiff himself, and an averment of lawful title without this qualification is bad, even after verdict. Thus where the breach was, that one S. after the commencement of the term, and during the term, having lawful right and title to the premises, entered and ejected the plaintiff; after verdict, it was moved in arrest of judgment, that the breach was not well assigned, because it should be intended that S. had a right to the premises by a puisne title, to which the covenant did not extend, and the court held that the breach was not well assigned. (b) So where the breach was, that one Y. entered, having lawful title to the premises, and it was objected on special demurrer, that it did not appear that Y.'s title commenced by any act of the defendant's or prior to the conveyance to the plaintiff, who might therefore have been evicted in consequence of some act done by himself, judgment was given for the defendant. (c) But where from the special circumstances of the case it can be gathered that the person evicting had a lawful title not derived from the plaintiff, it is sufficient after verdict, though there be no express allegation of that fact. Thus where A. being possessed of certain premises for a term of years, assigned part of them over to B. for the residue of his term, with a covenant for quiet enjoyment; and B. afterwards assigned them over to C.; it was held that as the declaration set out the indenture from A. to B., in which it was recited, that J. S. (the person evicting) by indenture, demised to A. the premises, the court would, particularly after verdict, (in the absence of any allegation of title in J. S.) presume such title. (d) And so, although where it is stated that the party evicting entered by lawful title upon the plaintiff, the court will intend that such title was derived from the plaintiff (a) Tisdale v. Sir W. Essex, Hob. 34. Com. Dig. Pleader, (C. 49). (b) Wotton v. Hele, 2 Saund. 177. Kirby v. Hansaker, Cro. Jac. 315. Jenk. Cent. 340, S. C. Mosse v. Archer, 3 Mod. 135. Norman v. Foster, 1 Mod. 101. (c) Noble v. King, 1 H. Black. 34. (d) Campbell v. Lewis, 3 Barn, and Ald. 392. tion. himself; yet it is sufficient if it be stated that the title of the Of the declaraparty evicting accrued to him, before or at the date of the conveyance to the plaintiff, or it may be stated that his title was under the defendant. (a) Although it is necessary to state that the person evicting had a lawful title not derived from the plaintiff; yet the particulars of such title need not be set out, because they are not in the knowledge of the plaintiff. (6) Nor is it necessary to state that the plaintiff was evicted by legal process. (c) Where the covenant for quiet enjoyment is against the acts of a particular person, it is not necessary to shew that the disturbance was under a lawful title (d), and so where the disturbance proceeds from the covenantor or his representatives, where he has covenanted against the acts of himself, or his representatives (e); but some particular act of disturbance must be shewn. (f) If the lessor covenants for quiet enjoyment, against the lawful let, suit, &c. of himself, the declaration need not expressly allege that he entered claiming title; it is sufficient if the breach states such a disturbance as clearly appears to be an assertion of right.(g) In covenant for a sum certain, as for rent, the defendant may bring the money into court; and where the plaintiff declared for non-payment of rent, and also for not repairing, the court permitted the defendant to pay in what was due for rent, and ordered that on payment of such sum, the proceedings as to that should be stayed. (h) Accord and satisfaction after the covenant broken, is a good plea in this action, where no certain duty accrues by the deed, but where a wrong or subsequent default, together with the deed, (a) Norman v. Foster, 1 Mod. 101. Buckly v. Williams, 3 Lev. 325. Foster v. Pierson, 4 T. R. 617. Proctor v. Newton, 2 Lev. 37. Hodgson v. East India Company, 8 T. R. 278. 2 Saund. 181, a, notes, 5th edit. (b) Proctor v. Newton, 2 Lev. 37. Skinner v. Kilbys, 1 Shower, 70. Foster v. Pierson, 4 T. R. 617. Hodgson v. East India Company, 8 T. R. 278. (c) Admitted in Foster v. Pierson, 4 T. R. 617, 621. (d) Ante, p. 424. (ƒ) Anon. Com. Rep. 229. Francis's (g) Lloyd v. Tomkies, 1 T. R. 671. Paying money into court. Of the plea. Accord and satisfaction. Of the plea. gives the action. (a) Where a duty accrues by the deed, and is Assignment. ascertained at the time of making the writing, as by covenant, bill, or bond, to pay a sum of money, in that case the duty, which is certain, takes its essence and operation originally and solely by the writing, and therefore, it must be avoided by matter of as high a nature, although the duty be merely in the personalty. (b) Accord and satisfaction, without deed, is consequently in such an action a bad plea. (c) The plea must state a full satisfaction; therefore, in covenant for not repairing, a plea that the plaintiff agreed that the defendant should employ a person four days, in and about repairing the house, in satisfaction, and that he had employed the person, &c. is bad, for the defendant was obliged to do the repairs by the original covenant. (d) The satisfaction must also be certain, and therefore, when in covenant for not repairing, the plea stated an accord, that the defendant should (without mentioning within what time) give up the possession of the house to the plaintiff, in satisfaction, and shewed that he gave up possession within five days after the accord; it was held ill upon demurrer, for shewing a performance in certain, does not aid the first uncertainty of the accord. (e) The plaintiff (the tenant of a farm) covenanted with the defendant (the landlord) to fetch and bring all timber, stone, and other materials, which should at any time during the continuance of the term be wanted about the erecting of a threshing mill, and the defendant covenanted to build and erect the same, To an action on the latter covenant, the defendant pleaded, 1st. That he began to provide the necessary materials for erecting the mill, and that whilst he was so doing, the plaintiff desired him not to do the same, but to refrain from so doing until he should be requested by the plaintiff, and 2nd, a plea of licence. On demurrer these pleas were held to be bad. (ƒ) Assignment before breach is a good plea to an action of covenant against an assignee, although the plaintiff has not accepted the second assignee as his tenant, and although no notice of the (a) Lutw. 359, Kaye v. Waghorne, edit. (d) Adams v. Tapling. 4 Mod. 88. and see Fitch v. Sutton, 5 East, 230. (e) Samford v. Cutliffe, Yelv. 124. Com. Dig. Accord, (B. S). (f) Cordwent v. Hunt, 2 B. Moore, 660. |