the new rule; the manifest object of that rule was, that if the defendant sought to discharge himself by payment, the plaintiff should be apprised of such defence by plea, in order to rebut it, or discontinue his action without incurring further

expense.

THE COURT, however, thought the practice of issuing writs of inquiry on judgment by default, and of referring it to the prothonotary to ascertain what is due upon bills of exchange and promissory notes, afforded a sufficient ground for receiving the evidence in question in reduction of damages, notwithstanding the defendant had put no plea of payment on the record. Rule discharged.

*90] *GEORGE IRELAND v. WILLIAM BIRCHAM, Gent., One, &c.

Defendant, a lessee, covenanted that plaintiff, paying rent, &c., should have quiet enjoyment of a term upon an under-lease to commence in 1836: defendant having afterwards forfeited his own term by non-payment of rent to the superior landlord, plaintiff could not come into possession of the term to commence in 1836: Held, that plaintiff could not sue on the covenant for quiet enjoyment; at all events not before 1836.

UPON a special case it appeareth that,

By indenture made the 29th of August, 1815, between Elizabeth Stone and Pelham Stone of the one part, and Joseph Harris of the other part, the said E. Stone and P. Stone, for the consideration therein mentioned, demised to the said J. Harris a messuage called the Castle alehouse, and also six other messuages adjoining, with the appurtenances, for the term of thirty years from the 25th of December then next ensuing, at the yearly rent of 707. payable quarterly, and clear of the land tax and all other taxes whatsoever. The indenture contained on the part of J. Harris, among others, covenants for the payment of the rent and taxes, and to insure the premises in the London insurance office in the joint names of J. Harris and E. Stone and P. Stone, for 1,500l. and to deposit the policy in the hands of the said E. Stone and P. Stone. The deed also contained a proviso for re-entry on non-payment of rent for twenty-one days, or upon making default in performing all or any of the covenants by the said J. Harris. E. Stone and P. Stone on their part covenanted for quiet enjoyment upon payment of the rent and performance of the covenants.

By indenture made the 22d of November, 1815, between the said J. Harris of the one part, and John Jaggers of the other part, the said J. Harris, for the considerations therein mentioned, demised the said messuage, called the Castle alehouse, part of the premises demised by the said indenture of 29th of August, *91] 1815, to J. Jaggers for twenty-one years from the 25th of December then *next ensuing, at the yearly rent of 317. 10s., with the usual covenants for payment of rent, to repair, insure for 5007., and a proviso for re-entry upon non-payment of rent or non-performance of the covenants. The said J. Harris covenanted for quiet enjoyment. This lease was assigned to various persons, and, by indenture dated the 30th of January, 1817, was ultimately assigned to the said J. Harris. The defendant contended that this term thereby became merged: but notwithstanding, the said J. Harris by indenture dated the 24th of December, 1818, purported to assign the said supposed lease to one James County, whose assignee afterwards, by indenture dated the 11th of August, 1825, purported to assign the same to the plaintiff.

By indenture bearing date the 22d of March, 1823, and made between the said J. Harris of the one part, and the defendant of the other part, the said J. Harris for better securing the payment of the sum of 3497. 7s. among other things, assigned, transferred, and set over unto the defendant the said messuages and tenements demised to the said J. Harris by the indenture of the 29th

of August, 1815, for all the residue of the said term therein mentioned, save and except the last day of the said term.

[*92

By indenture made the 14th of June, 1826, between the defendant, described as the mortgagee of the premises thereby demised, with others, of the first part, the said J. Harris of the second part, and the plaintiff of the third part, in consideration of 257. paid to defendant, and of 257. paid to Harris with consent of the defendant, and of the payment of the rent and performance of the covenants, the defendant, at the request and by the direction of Harris, demised and leased, and the said J. Harris did demise, and lease, ratify and confirm unto the plaintiff the said messuage called the Castle alehouse, then held by the plaintiff under the *said indenture of lease of the 22d of November, 1815, to hold the said premises unto the plaintiff, as and from the 25th of December, 1836, being the expiration of the term granted by the said existing lease, for the term of nine years, at the yearly rent of 317. 10s. payable to the defendant during such part of the said term as he should continue mortgagee of the premises; and after payment of the principal money and interest due upon the said mortgage, then to the said J. Harris. The deed contained covenants by plaintiff with defendant and Harris for payment of the rent to defendant or Harris; to repair and yield up the premises to defendant and Harris, or either of them, st the expiration of the term; to paint the premises once in four years; keep open the said messuage as a public house; not to carry on certain trades without the license of defendant and Harris, or one of them; to insure in the joint names of plaintiff and defendant and Harris, in the London insurance office for 5001; and to permit defendant and Harris to view the premises; and also a proviso for re-entry on non-payment of rent and non-performance of covenants. For defendant and Harris, or one of them, on the part of defendant and Harris, there was the following covenant: "And each of them the said defendant and J. Harris severally, and not one for the other of them, doth hereby for himself, his executors, administrators, and assigns, covenant to and with the said plaintiff, his executors, administrators, and assigns, that he, the plaintiff, his executors, administrators and assigns, paying the said rent of 317. 10s. at the times and in manner herein before reserved and payable, and observing, performing, and keeping the covenants, clauses, provisoes, and agreements herein before contained on his and their part to be paid, observed, and kept, shall and lawfully may, during the term hereby demised, peaceably and quietly hold, occupy, possess, and enjoy the premises hereby demised, with their appurtenances, without any let, [*93 suit, or disturbance of, from, or by the said defendant and J. Harris, or either of them, their or either of their executors, administrators, or assigns, or of any person or persons claiming or to claim by, from, or under them or any of them."

On the 5th of June, 1826, the defendant delivered to the plaintiff a notice, by which, after reciting the deed dated the 22d of March, 1823, the defendant required the plaintiff, during his occupancy of the premises, to pay to the defen dant the rents and profits then due, or which might become due for the said premises.

In consequence of the non-payment of the rent to E. Stone and P. Stone, by virtue of the said indenture dated the 29th of August, 1815, an action of eject ment was brought in Michaelmas term, 1825, to recover possession of the pre mises demised by the deed of 29th of August, 1815, and, as part of them, of the Castle alehouse, demised by the indenture of the 14th of June, 1826. In that ejectment E. Stone and P. Stone were the lessors of the plaintiff, and obtained judgment for the recovery of the possession of the Castle alehouse, and the other premises demised by them to J. Harris by the indenture of the 29th of August, 1815; and executed a writ of possession on the 28th of September, 1827, when possession was delivered to them by the sheriff. At that time the plaintiff was in possession of the Castle alehouse, carrying on his business of a publican, which he afterwards continued to carry on therein. He was also pos

sessed of the interest in the term demised by indenture of the 14th of June, 1826. By virtue of the writ of possession he was turned out of the house, and possession was delivered to E. Stone and P. Stone, but plaintiff continued to occupy the same until E. Stone and P. Stone afterwards, by lease, demised the premises to other persons.

*94]

*The plaintiff then brought the present action against the defendant upon his covenant in the deed of June 14, 1826, that the plaintiff, paying the rent, and observing the covenants specified in that deed, should have quiet enjoyment of the premises demised during the term which was to commence in December, 1836.

The question was, whether, under the circumstances, the plaintiff could

recover.

Taddy, Serjt., for the plaintiff. The defendant is liable on his covenant to secure the plaintiff quiet enjoyment, notwithstanding the term, in respect of which that covenant was entered into, has not yet commenced. For the defendant might lawfully bind himself to give the plaintiff the future occupation of the premises; and if the defendant, by his neglect to discharge the rent due to Stone, has placed himself in a position which renders the performance of his contract impossible, he must be responsible for the loss in damages. Thus, in Ford v. Tiley, 6 B. & C. 325, by agreement, defendant stipulated that he would, as soon as he should become possessed of a certain public house, execute a lease thereof to plaintiff, from the 21st December, 1825, for fourteen or twenty-one years. At the time of making the agreement the house was upon lease, which would not expire till Midsummer, 1827; the legal estate being in trustees, first to pay debts, and then to pay an annuity, and subject thereto to the use of the defendant, if he attained twenty-four: In June, 1825, after defendant had attained twenty-four, but before the outstanding lease had expired, he and the trustees joined in a lease to C. for twenty-three years: it was held, that defen*95] dant having thereby put it out of his power, so long as the latter lease of 1825 subsisted, to grant any lease to *plaintiff, had committed a breach of his agreement, and was liable to an action for a breach of that agreement, although the first lease had not expired.

So in 1 Roll. Abr. 248, pl. 1, (8 Vin. 225), it is said, "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 broken: as if the condition be to enfeoff one before Michaelmas; if, before the feast, he enfeoff another, though he after repurchases, yet he cannot perform the condition" and he cites 21 Ed. 4, 55, where Choke, who was then one of the justices of C. B., so lays it down. The same may be collected from Co. Litt. 221, b. where upon a feoffment on condition to re-enfeoff on payment of a certain sum by the feoffer or his heirs before a certain day, a distinction is taken between a disability in the interim, on the part of the feoffer or his heirs, and a disability on the part of the feoffee; a removal of the disability before the day from the feoffer or his heirs, entitling them to require a re-enfeoffment, and the removal from the feoffee being no saving to him of the consequences of a breach; and lord Coke adopts Littleton's reason, "maintenant by disability of the feoffee the condition is broken, and the feoffer may enter."

And the circumstance that the forfeiture and eviction occurred before the commencement of the interest which the plaintiff was to take, is no answer to an action on the defendant's covenant; for in Campbell v. Lewis, 3 B. & Ald. 392, 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 C. having been evicted by J. S., the lessor of A., for a breach of covenant com*96] mitted by A. previously to the *assignment to B., might maintain an action against A. upon the covenant for quiet enjoyment. Noke v. Awder, Cro. Eliz. 373, 436.

Secondly, the plaintiff has lost the benefit of his lease, by reason of a person claiming by or under the defendant within the meaning of the defendant's cove nant. For it was the defendant's duty to see that a forfeiture did not take place by his neglect to pay the first rent to the superior landlord: Hancock Caffyn, 8 Bingh. 358; Burnet v. Lynch, 8 Dow. & Ry. 368. The Stones, therefore, claimed by the default of the defendant. They also claimed under him, for where a lessor enters for a forfeiture, he enters by superior title, but he comes into the estate of the lessee. 2 Bl. Comm. 275; Co. Lit. 148 b, 233 b, 234 a, 338 b; Hawk. Abr. Co. Lit. 228.

Atcherley, Serjt., contrà. This was not a disturbance by the defendant or any person claiming by or under him; for Harris and the defendant covenant severally, and not one for the other; and the defendant is not responsible for the consequences of any act or omission by Harris. Nor, under this covenant, is he responsible for any eviction by title paramount. Thus, in Woodhouse r. Jenkins, 9 Bing. 431, where the tenant for life, and his eldest son, the remainder-man in tail, leased to E. S. for ninety-nine years, and gave E. S., who was acquainted with their title, a bond, conditioned for the due observance of their covenant for quiet enjoyment; E. S. underlet to W. for sixty years, and cove nanted with W. against eviction by any one claiming under E. S., or by his acts, means, consent, neglect, default, privity, or procurement; the tenant for life being dead without issue, and without suffering a recovery, W. was evicted by the next remainder man in tail; it was held, that E. S. was not liable on his covenant to W., the eviction being by title paramount, which E. S. had no means of defeating.

Ford v. Tyley, therefore, which was an action for the breach of an agree ment to grant a lease, has no application to the circumstances of the present

case.

But the action is premature, for the covenant is for quiet enjoyment during the term granted; and as the term has not commenced, the plaintiff's enjoyment during the term has not been disturbed.

The covenant, too, is subject to the condition precedent of the plaintiff paying the rent of 317. 10s. But as he will never be called upon to pay the rent, the condition can never be performed.

Taddy. The effect of the covenant is to secure the plaintiff possession in December, 1836, and quiet enjoyment afterwards. The plaintiff relying on the covenant, may have incurred expense in building or otherwise, and if he would be entitled to recover for an eviction after a certain period of enjoyment, à fortiori he may claim for the loss of the whole of the term.

TINDAL, C. J. I do not feel that any answer has been given to the observation I have more than once thrown out, that the covenant on which the plaintiff sues is tied up to a covenant for quiet enjoyment while the lease shall be a lease in possession. When the parties stipulate that the plaintiff and his as signs paying the rent of 317. 10s., and observing the covenants entered into on his part, shall during the term demised quietly enjoy the premises, I cannot fail to observe that such a covenant is strictly conditional; that is, conditional for securing the plaintiff quiet enjoyment so long as he shall continue in possession of the land, and, as tenant, shall regularly pay the stipulated rent. As he is not yet in possession, neither the covenant, nor the condition can have any effect. The plaintiff has commenced his action too soon; he should have waited to see what would occur in 1836. The rest of the Court concurred in directing the

Posteà to the defendant.

To a declaration for breaking and entering plaintiff's close, defendant pleaded, first, not guilty; secondly, that the close was not the close of the plaintiff; thirdly, that the close was the soil and freehold of the defendant: Held, that evidence of possession was sufficient to entitle plaintiff to a verdict on the second plea.

TRESPASS for breaking and entering the plaintiff's close abutting on a close of the defendant, and cutting and carrying away plaintiff's bushes. Plea, first, not guilty; second, that the close was not the close of the plaintiff, nor the bushes his bushes; third, that the close was the close, soil, and freehold of the defendant. Issue was joined on the first and second plea, and a traverse taken on the third.

The

spot in question was a narrow strip of land between the hedge of a field on one side, and of a coppice on the other, both of which were the freehold of the plaintiff.

It was anciently a lane, but the plaintiff, or those under whom he claimed, stopped up each end with a fence, and the plaintiff proved an act of ownership in repairing these fences about two years ago.

*99]

The defendant claimed under one Worham, who, as he alleged, inclosed the lane as part of the waste with the consent of the lord of the manor, forty years ago: and he proved that Worham had cut trees on the spot; but at the time Worham did this, he was occupier of the *plaintiff's land on each side of the spot in question. No evidence was given of the lord's license. DENMAN, C. J., left it to the jury to say on the first issue, whether the plaintiff had given sufficient evidence of his being in possession, to maintain this action; on the second, whether the close was the property of the plaintiff: on the third, whether it was the property of the defendant.

The jury said they could not decide whose land it was; that it belonged neither to the plaintiff nor to the defendant: whereupon the learned Chief Justice directed a verdict to be found for the plaintiff on the first and third issues, and for the defendant on the second, with leave for the plaintiff to move to set it aside and enter a verdict for himself on that issue also: accordingly,

Channell, obtained a rule to enter the verdict on the second issue for the plaintiff, on the ground that the second plea put in issue only the possession of the plaintiff, which was established by the verdict on the first plea, and not his

title.

A rule nisi having been granted, Andrews, Serjt., and Petersdorff, shewed

cause.

:

Under the rule Hil. 4 W. 4, the plea of not guilty operates as a denial of the trespass, "but not as a denial of the plaintiff's possession or right of possession," which if intended to be denied must be traversed specially the defendant therefore has traversed the plaintiff's right of possession in the most apt way, by following the language of the declaration, and pleading that the close in question is not the close of the plaintiff. It would be inconvenient if under this rule the defendant were bound to allege new matter. Taking the second plea, therefore, in connection with the declaration, which does not allege the *100] plaintiff to be in possession, the defendant has *put in issue the plainproperty in the close. In the apprehension of a jury as well as in legal acceptation, the plaintiff's close means the close which is the plaintiff's property. Doctor and Student, p. 30; 11 Rep. 55. Ejectment lies for closes, if the number be specified; and a defendant might formerly shew that the close fore should have answered this plea, and have supported the declaration by was his own freehold under the general issue not guilty. The plaintiff thereshewing that the close was his close. cient traverse of the plaintiff's property, it is aided by the verdict. In Samuel

tiff's

But even if the second plea be an insuffi