seams on advantageous terms to themselves, and, in breach of their trusts and covenants, seeking their own gain at the expense of the plaintiff, on the 28th February, 1820, without his knowledge or consent, accepted a *lease from Lord Ashburnham of the said lands and premises agreed to be de[*425 mised by the articles of 8th August, 1816, to hold to them Foster, Bonner, and Gaunt, for different and less advantageous terms of years, and different and higher rents, and under and subject to different and less advantageous stipula tions, conditions, and provisions than the said term of years, rents, stipulations, conditions, and provisions in the said articles of 8th August, 1816, agreed, and then might and ought and could, and otherwise would have been obtained from Lord Ashburnham; and that, by means of such crafty contrivance, Foster, Bonner, and Gaunt did obtain from Lord Ashburnham a lease of the last-mentioned veins and seams of coal on more advantageous and profitable stipulations than they ought and otherwise could have done. By means and in consequence whereof, &c., as in the first breach.

As a third breach, it was alleged that, after the making of the two leases by Lord Ashburnham as in the second breach mentioned, Foster, Bonner, and Gaunt, without the knowledge or consent of the plaintiff, assigned to Charles Hill (amongst other things) all the messuages, lands, grounds, veins of coal, and other premises granted by those two leases, and all their interest in the thereby assigned property, to hold to Charles Hill for the residue of the several terms. By means, &c., as before.

General demurrer and joinder.

The demurrer was argued in Easter term last. (a)

[*426

Sir John Campbell, Attorney-General, in support of the demurrer. It appears, by the recital in the *indenture declared upon, that the parties intended, not that an absolute annuity should be granted, but that the three fourths part should become a security for the annuity, the grantee taking the risk of there being or not being profits; and this was reasonable, for the arrangement was made in consequence of the grantee having proposed to sell Farquharson's moiety, the price of which would, of course, depend upon the profits derivable from it: and the covenant for the payment of the annuity is limited to this contingency by the words "if any." Now the breaches do not aver that there were profits of the nature described in the indenture; that is, profits after the payment of the charges mentioned. This averment ought to have been made: as, if a grant be made of an annuity during the life of J. S., the declaration on the grant must aver the life of J. S.: or, at least, it should have been averred that profits would have been made, unless the acts complained of had prevented it. Again: the declaration discloses no breach of covenant. The first two breaches shew nothing by which the annuity is impeached. The first breach does not explain how the acceptance of the lease, on the terms and in the form there described, damnifies the grantee of the annuity: Gaunt, by his covenant, was to hold in trust for the three; it can make no difference to the grantee that, instead of this, the lease is made to the three in the first instance; and the indenture declared upon contains no covenant that the lease shall be held in trust for the plaintiff. The second breach also fails to connect the terms upon which the lease was accepted with any deterioration of the secu rity, which is altogether unaffected by those terms. The third breach does not shew that the assignment there averred to have been made has impeached the *security; the mere possibility that it may do so is not sufficient to make a breach of covenant. [*427 In Com. Dig. tit. Covenant (E. 3), it is said, "A covenant shall not be broken, if a man does an act, which by conse quence may be a breach, if the breach does not actually follow: as, if A. cove nants to maintain every action in her name, without release or countermand; if A. after an action commenced, takes husband, it is not a breach, though the

(a) April 25th, before Lord Denman, C. J., Littledale, Parke, and Patteson, Js.

writ be abateable, if it be not abated by judgment. R. 1 Leo. 169. If A. covenants that B. shall enjoy a lease assigned, free from arrears of rent; if rent be in arrear, it shall not be a breach, where no damage accrues thereby to B., by suit or otherwise. R. 1 Sal. 196. So, if an obligation be, to indemnify from rent in arrear, or money due by obligation, after the arrears incurred, or the obligation broken. 1 Sal. 197." From which it follows, that the plaintiff ought to have shown actual failure of security, and damage produced thereby. Neither does it appear that the assignment causes even a contingent deterioration of the security; for, in the first place, the assignment does not appear to have passed that property only which was comprised in the lease from Lord Ashburnham, and, therefore, the assignee may hold both the mine, on which the security is granted, and the adjacent land; and if so, the mine has the advantage of the union as before; and, secondly, even if nothing was assigned besides the property comprised in the lease from Lord Ashburnham, the assignee would take subject to the incumbrance, and, therefore, the grantee of the annuity would not be prejudiced.

Cowling, contrà. The annuity is expressly secured, not simply on the mine, *428] but on the three fourth parts of *Foster, Bonner, and Gaunt, in the profits arising from the colliery, by virtue of the indentures of lease and the agreement of 1816. That agreement is, therefore, a part of the security; and consequently the assignment of the land which is the subject of the agreement, is, pro tanto, a breach of the covenant, because it impeaches the security. And a bona fide assignee will hold free of the incumbrance, which was merely equitable till the time of granting the lease. Then, as to the lease which is accepted, it is clearly different from that contemplated in the agreement. A right of entry on the premises was reserved to the grantee of the annuity, by the indenture of December, 1816: now this right will not apply to land taken under a lease not consistent with the agreement. It is not necessary to shew actual damage, where the defendant has put it out of his own power to perform his contract, Ford v. Tiley, 6 B. & C. 325, where 6 Vin. Abr. is cited, tit. Condition (B. c.), "If a day be limited to perform a condition, if the obligor once disables himself to perform it, though he be enabled again before the day, yet the condition is broke. 21 Ed. 4, 55. As if the condition be to infeoff before Michaelmas; if before the feast he infeoffs another, though he after repurchases, yet he cannot perform the condition. 21 E. 4, 55." If there has been a breach of contract, the plaintiff is at any rate entitled to nominal damages; Van Wart v. Woolley, 3 B. & C. 439. (S. C., on a new trial, 1 M. & M. 520.) Marzetti v. Williams, 1 B. & Ad. 415. Supposing the special damage to be ill-assigned, or not a cause for which the plaintiff can recover at all, this demurrer should have been to that part of the declaration, not to the whole; Amory *429] v. Brodrick, 5 B. & Ald. 712. *The plaintiff has not the means of knowing whether there be any profits. If there be none, the defence (supposing it valid) should be raised by the defendants, who might plead non damnificatus. Cur. adv. vult.

Lord DENMAN, C. J., in this term, (Jan. 31st), delivered the judgment of the Court.

(After reading the declaration, his lordship proceeded as follows:)-To this declaration the defendants have demurred generally, and contend,

First, that the declaration is insufficient, for want of stating that any profits have accrued from the working of the colliery;

Secondly, that the breaches assigned do not disclose any facts by which the annuity is necessarily impeached.

With respect to the first point, we are of opinion that the declaration is sufficient. Assuming that, in an action to recover arrears of the annuity, it would be necessary to state affirmatively that profits had accrued, inasmuch as the annuity is made payable out of the profits, if any,-yet, in an action to recover damages for acts by which the annuity is said to be impeached, it cannot be

necessary to state that profits have been made, unless it be with a view to shew the measure of those damages: and, if it be necessary or proper with that view (which we are not called upon to determine), the omission of the statement cannot at all events operate further than to reduce the plaintiff's right of action to merely nominal damages,—not to shew that he has no cause of action at all; and is not therefore matter of demurrer.

It is also obvious that the acts complained of may have themselves been the cause that no profits have been made; and, again, if no profits have hitherto been made, yet it does not follow that they might not be made, hereafter, so as to pay the annuity if it be not impeached.

[*430

With respect to the second point, we have felt considerable difficulty; but, upon the whole, we are of opinion that the breaches, as alleged, are not sufficient, and that the defendants are entitled to our judgment.

The first breach in substance states, that Foster, Bonner, and Gaunt took a lease of the premises comprised in the articles of agreement of 8th August, 1816, in their own names, and not in trust for the plaintiff, but in trust for others, for sixty years from 25th June, 1819, and forfeited and yielded up the articles by means whereof the annuity became, and was impeached, and of no effect, and the plaintiff lost his remedies to enforce it. Whatever be the meaning of the word "impeached" in this breach, it is stated as a consequence resulting from the facts previously stated. Now that consequence does not result from those facts, which do not in any way affect the annuity. It is quite immaterial, as to the annuity, whether the lease was taken in the names of Foster, Bonner, and Gaunt, or in the name of Gaunt only, since Gaunt had cove nanted to hold it, when granted, in trust for Foster, Bonner, and himself; and all three had covenanted with the plaintiff, not that it should be taken in trust for him, but that they had not done nor would do anything whereby it might be forfeited. Now, as far as appears by the allegations in this breach, it is stil a valid and subsisting lease, and the lands comprised in it capable of being used for the working of the colliery on which the annuity is secured. The articles of agreement are, indeed, stated in the *breach to have been forfeited [*431 and yielded up: but the use of the word "forfeited" is of itself nothing, without showing how and by what act they were forfeited; and, so far from this being shown, the contrary plainly appears, and that they were yielded up only when the purpose for which they were made, namely, the granting a lease of the lands comprised in them, was fulfilled. Whether that lease be in strict conformity to the articles of agreement, or even whether it be a lease under and in pursuance of those articles, is not material; because the annuity is payable out of the profits of the mine, which, under the indentures and articles, shall accrue by working the coals or otherwise howsoever. The plaintiff, therefore, has the security contracted for; viz., the profits of the mine, to the working of which these lands mentioned in the articles are necessary, whether the lease under which the lands are held be or be not conformable to the articles: and it does not lie in the mouth of the covenantors, who gave up the articles when they took the lease, to say that the lease differs from the articles, and that they are therefore absolved from applying the lands to the working of the mine, or from paying the annuity out of the profits of the mine, supposing it to be worked by means of the lands.

The second breach states, in substance, that Foster, Bonner, and Gaunt, in fraud of the plaintiff, accepted a lease from Lord Ashburnham on different and less advantageous terms, and at higher rents, than were specified in the articles of agreement, in order to induce Lord Ashburnham to grant them a lease of other coal mines, on better terms than he otherwise would; and that he did so grant, whereby the annuity became and was impeached. The same observations may be made here as have already been applied to the [*32 first breach. Nothing is stated in the breach which in any way affects the title to the annuity, or to the premises on which it is secured, or the remedies by

which it may be enforced; but only facts which tending to shew that those remedies are less likely to be efficacious, by reason, as it is said, of the increase of a prior charge upon the funds out of which the annuity is payable; for it is argued that, as the annuity is payable out of the profits of the colliery after payment of all rents, and as the rent reserved in the lease is higher than that stipulated in the articles, the funds out of which the annuity is payable, viz., the profits of the colliery, must, pro tanto, be diminished, and the payment of the annuity be rendered less likely, and so, that the annuity is impeached.

But, on looking at the words of the covenant, it will be found that the annuity is payable out of the profits of the mine, after payment to Sir Hugh Owen, Lord Cawdor, and Lord Ashburnham, of such rents as in and by the recited leases or agreements were respectively reserved. The covenantors, therefore, are only entitled to deduct from the profits, prior to paying the annuity, such rent as is specified in the articles of agreement, not such as is reserved in the lease granted by Lord Ashburnham; and as Lord Ashburnham cannot distrain on the mine for his rent, but only on the land leased by him, the prior charges on the profits contemplated by the indenture on which this action is brought are not increased. Whatever then, be the meaning which by this breach is intended to be attributed to the word "impeached," whether it be, lessened in value, or affected in title, or delayed in payment, the conclusion drawn from the facts stated in the breach equally fails.

*433] *The third breach states, in substance, that, after the two leases had been taken from Lord Ashburnham, Foster, and Gaunt, without the knowledge or consent of the plaintiff, assigned to Charles Hill (amongst other things) those leases, and the premises comprised in them, for the residue of the terms, whereby the annuity became and was impeached.

Here it is contended, first, that, as the lands comprised in the articles of agreement of 8th August 1816 and the subsequent lease from Lord Ashburnham, are, in the indenture on which the action is brought, and in the declaration stated to be essential and absolutely necessary to the working of the colliery, out of the profits of which the annuity is payable, the assignment of those lands by Foster, Bonner, and Gaunt to Hill must necessarily prevent the working of the colliery, and the making of any profits, and so impeach the annuity, by preventing the fund out of which it is payable from ever arising. It is answered, that the assignment of the lands to Hill is stated to be, "amongst other things," which may be the colliery itself; and that it ought to be affirmatively shewn in the breach that the colliery and the lands have been separated. Whereas, for any thing that appears to the contrary, the whole may be in Hill's hands, and the lands may have been all along, and may at this moment be, used for the working of the colliery, and all the plaintiff's remedies may be as complete as if no assignment had been made to Hill.

We think that this is the true answer; and, without giving any opinion as to the effect of a positive averment that the lands and colliery had been perma*434] nently separated, so that the colliery could not be worked at *all whether it would or would not constitute a breach of the covenant not to do any act whereby the annuity might be impeached or become of no effect, we think that, at all events, without such an averment, or any statement of facts necessarily shewing such a separation, this breach cannot be supported on that ground.

But it is contended, secondly, that an assignment of the whole premises, including the colliery and the lands mentioned in the articles of agreement, so as that no separation has taken place, is still breach of the covenant not to do any act whereby the annuity may be impeached. This depends on the question, whether the profits of the colliery in the hands of an assignee are chargeable with this annuity, and whether the annuitant can enter upon the assignee so as to receive those profits, and, if necessary, to sell the colliery under the covenants in the indenture on which this action is brought.

The covenant is, in terms, by Foster, Bonner, and Gaunt, each for himself, his heirs, executors, and administrators, and not for the others, that they, Foster, Bonner and Gaunt, and their respective executors, administrators, and assigns, would pay the annuity out of the profits which should come to their or any of their hands; and it goes on further to give a right to enter and receive the profits, and, in certain events, to sell the colliery, if the annuity should be in arrear. The power to enter and sell is not made to depend on the colliery continuing in the possession of Foster, Bonner, and Gaunt, but on the annuity being in arrear, in whosoever hands the colliery may be; and as Foster, Bonner and Gaunt, at the time of their making this covenant, had

absolute power over three fourths of the *colliery for the term of years [*435

which they had in it, we think that Foster, Bonner, and Gaunt are responsible for the payment of the annuity out of the profits in the hands of the assignee, and that the power of entry and sale may be put in force against him. It is not material to consider whether an action of covenant for the annuity will lie against the assignee (i. e. whether the covenant be personal only, or runs with the colliery;) because, assuming it to be personal only, it still remains binding on the covenantors, their heirs, and executors, and is not affected by the assignment; and so the plaintiff has all the security which he contracted to have; viz., the personal covenant of the covenantors, and the power of entry and sale. The breach, therefore, cannot be supported on the second ground.

For these reasons, we are of opinion that judgment must be entered for the defendants. Judgment for the defendants.

The KING against WARTNABY. Tuesday, January 13.

This Court will remove an indictment by certiorari, at the instance of the defendant, from the Central Criminal Court, on the suggestion that it involves points of law arising out of proceedings in Chancery, relative to matters of account.

SIR F. Pollock, Attorney-General, moved, on the part of the defendant, for a certiorari to remove this indictment from the Central Criminal Court to the King's Bench. The indictment was for perjury charged to have been committed in an answer to a bill in Chancery, relating to transactions which occurred about fifteen years ago. The defendant now swore that some points of law would arise on the trial, the proceedings out of which this indictment arose being in Chancery and the transactions being matter of account.

*PER CURIAM. (a) Looking to the nature of the documents referred to in the proceedings in Chancery, we think this certiorari should be granted.

[*436

Writ granted.(b)

(a) Lord Denman, C. J., Littledale, and Williams, Js. (b) See note (a) to Rex v. Harrison, 1 Chitt. Rep. 571; Rex v. Morgan, 2 Stra. 1049; Rex v. Caldecott, 3 Dowl. P. C. 315.

In Rex v. Brian and Others, Mich. T. (Nov. 12), 1834, this Court refused an application by Petersdorff, on the part of the defendants, to remove an indictment from the Middlesex quarter sessions, on the ground of its vagueness, the charge being that the defendants were common cheats, and had conspired to obtain goods and chattels, not stating from whom. Per Lord Denman, C. J., Taunton, Patteson, and Williams, Js. See Rex v. Gill, 2 B. & Ald. 204; Rex v. Fowle, 4 Car. & P. 592.

As to the removal of indictments at the instance of prosecutors, see the new regulations introduced by stat. 5 & 6 W. 4, c. 33, s. 1.