time of making and sealing the writing aforesaid, had no interest, possession, or property in the said goods or chattels, or any part thereof; but the true property thereof was then in one A A. And so the said D, though often requested, hath not kept his covenant aforesaid, with the plaintiff in this behalf above made, and hath altogether denied, and yet doth deny to perform it to him. Lilly, 138. On a covenant in a deed of transfer of a quarter part of any prizes

to be taken.

For that the said T, at &c., on &c., by his deed of that date, sealed with his seal, duly executed and in court to be produced, having shipped himself on board the ship called the Monmouth, then lying in the harbor of said &c., which ship was soon to sail upon a cruise for six months, or whether the said cruise should be longer or shorter, against the enemies of the U. S. of America, being commanded by W N; in consideration of the sum of $-, paid the said T by the plaintiff, he, the said T, by the name and addition of D T, then residing at N, in the county of E, and state of Massachusetts Bay, granted, sold and assigned unto the plaintiff one quarter part of such single share, as he, the said T, should be entitled to by virtue of his having shipped himself, as aforesaid, and going the said cruise, in all and every the prizes which should be taken by said ship during the said cruise, even if it should be longer than the said six months; the said quarter part of a share to be received by the plaintiff as soon as the said T would have been entitled to receive the same, had he not made the above assignment; and the said T, in and by the said deed, among the other things, did for the consideration aforesaid covenant with the plaintiff, that he, the said T, would go the whole of said cruise, and that he would faithfully do the duty of a mariner during the same, on board the said ship, and that he had not done, and would not do any thing, which should prevent the plaintiff from receiving the said quarter part of a share. And the plaintiff avers, that the said W N on board of said ship, afterwards, on &c., at said &c., sailed upon the same cruise, and continued on the same cruise until the of &c. current, when the same was completed, to wit, at said &c.; that said ship in said cruise captured and sent into said &c., and made legal prize of a certain ship, called the Unity, and cargo of the value of &c., and also of a certain brigantine called the Gen. Murray, and her cargo of the value of &c., that one quarter part of such a single share,

day

as the said T would have been entitled to, had he gone the whole of said cruise and faithfully done the duty of a mariner during the same, is of the value of $1000; that said T, after he had shipped himself as aforesaid, on board said ship, and after the execution of his deed aforesaid, to wit, on &c,, at said &c, deserted from the same ship, and refused to, and did not go on any part of said cruise; by reason of which the said T is not entitled to any part or share of the prizes atoresaid; by reason of all which the plaintiff hath been, and is prevented from receiving any part or share of said prizes. And so the plaintiff saith, that the said T, his covenants aforesaid hath not kept, but hath broken them, all which is to the damage, &c.

2. On Leascs.

For that whereas heretofore, viz. on &c., at &c., by a certain indenture then and there made between the said plaintiff of the one part, and the said T of the other part, one part of which said indenture, sealed with the seal of the said T, the plaintiff now brings here into court, the date whereof is the day and year aforesaid, the plaintiff did demise, lease, and to farm let unto the said T, his executors, administrators, and assigns, a certain dwellinghouse &c., (except as in the said indenture is excepted) to have and to hold the said dwellinghouse, with the appurtenances (except as aforesaid) unto the said T, his executors, administrators, and assigns, from to the full end and term of years, thence next ensuing, and fully to be complete and ended; yielding and paying therefor, yearly and every year, to the plaintiff, the clear yearly rent or sum of payable quarterly, viz., on &c., in each and every year, by even and equal portions.

Here follows the statement of the various covenants, upon the breach of which the action is brought.

Covenant to pay rent.

And the said S did thereby for himself, his executors, administrators, and assigns, covenant &c. to and with the said plaintiff, his heirs and assigns, that he, the said S, his executors, administrators or assigns, would well and truly pay, or cause to be paid to the said plaintiff, his heirs or assigns, the said yearly rent or sum of at the several days and times aforesaid.

Covenant to repair and leave in repair, &c.

And the said S did in and by the said indenture, for himself and his executors, administrators, and assigns, covenant &c., to and with the said plaintiff, his heirs and assigns, (amongst other things) in manner following, that is to say, that he, the said S, and his assigns, from and after the said messuage should have been put in good and tenantable repair, by and at the expense of the said plaintiff, 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, &c., maintain and keep the said dwellinghouse &c. in good and tenantable repair 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 plaintiff, his heirs or assigns,) and the same premises and every part thereof, should and would leave in such good repair and condition at the end, or other sooner determination of said term, and should and would peaceably and quietly yield up &c. to the said plaintiff, his heirs or assigns, without doing &c. any waste &c. to the same or any part thereof.

Covenant to cleanse ditches, &c.

And also should well and sufficiently cleanse and repair, every year during the said demise, all the ditches &c., in the parcel of land, called &c., as often as necessary, and should deliver up unto the said plaintiff, his heirs or assigns, the same in such good order and condition, at the end of the same term as aforesaid.

NOTE. In like manner, other particular covenants in the lease should be stated, as nearly as possible, in the language of the indenture. It is usual also, to add a reference to the lease, and to allege an entry of the lessee, and an averment of the plaintiff's general performance, and a protestation of the defendant's general non-performance; but these are unnecessary. It is proper, indeed, when an action is brought against the assignee or lessee, to allege an entry by him. It is necessary, also, where there is a condition precedent to be performed on the part of the plaintiff, to aver a performance of it. The breaches may be assigned thus;

Breach in the non-payment of rent.

And the plaintiff saith, that after the making of the said indenture, and during the said term thereby granted, viz. on &c., at &c., a large sum of money, viz. the sum of $of the rent aforesaid, for years and a half of the said term then elapsed, became and was, and still is in arrear and unpaid to the plaintiff, contrary to the tenor and effect

of the said indenture, and of the said covenant of the said S, by him in that behalf so made as aforesaid, to wit, at &c. aforesaid.

Breach in not repairing, and leaving out of repair.

And the said plaintiff in fact saith, that the said S did not, nor would, during the continuance of the said demise, and whilst he was so possessed of the demised premises, with the appurtenances as aforesaid, at his own costs and charges, support, maintain, &c. all and every the said dwellinghouse &c. (as in the covenant,) in good tenantable repair and condition, (here follows an averment of the performance of conditions precedent ;) although the said dwellinghouse &c., in the possession of the said S, at the time of making the said indenture, were, after the making thereof, to wit, at &c. aforesaid, put in good and tenantable repair, by and at the expense of the said plaintiff, and although timber in the rough, sufficient and proper for such repairs, was allowed, and from time to time provided and set out by the plaintiff, viz. at &c. aforesaid; nor did, nor would, leave the same premises in such good repair 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 S, after the making of the said indenture, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances as aforesaid, viz, on &c. and from thence for a long space of time, viz. from thence until the determination of the said term, suffered and permitted the said dwellinghouse, &c. (as in the covenant), to be and continue, and the same were, for and during all that time, ruinous, fallen down, and in great decay for want of necessary repairing, maintaining, and supporting the same; and the said S, at the determination of the said term, left the same premises in such condition as last aforesaid, contrary to the form and effect of the said indenture, and of the covenant so made by S for himself, and his assigns as aforesaid, viz. at &c. aforesaid.

Breach in not cleansing ditches.

And the said plaintiff in fact further saith, that the said S did not, nor would, yearly and every year, during the continuance of the said demise, and whilst he was so possessed of the demised premises with the appurtenances as aforesaid, well and sufficiently uphold, cleanse, scour, or repair

all the ditches &c. in the said parcel of land, called &c. &c. by the said indenture demised, as often as was necessary, so as to keep the same cleansed &c., and in good condition; nor did nor would deliver up the same unto the plaintiff 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 S, after the making of the said indenture, and during the continuance of the said demise, and whilst he was so possessed of the demised premises, with the appurtenances, to wit, on &c., and from thence for a long space of time, viz. from thence until the determination of the said demise, suffered and permitted the said ditches &c., in the said piece and parcel of land, called &c., and all other the ditches &c. 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, choked up, ruinous, out of repair, and in bad condition, for want of well and sufficiently cleansing, scouring, and repairing as aforesaid; and at the determination of the said term, he, the said S, delivered up the same unto the said plaintiff in such 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.

Breach of covenant to repair, &c. in not glazing the windows, and in making divers alterations in the demised premises.

And the said plaintiff in fact saith (averment of performance of condition precedent,) that before the commercement of the said term, viz. on &c., he, the said plaintiff, put the demised premises and every part thereof into good and sufficient repair, and well and sufficiently glazed all the windows belonging thereto, according to his covenant aforesaid; but the said plaintiff saith, that the said S did not pay &c. (first breach for not paying the rent.) And the said plaintiff further in fact saith, that the said S did not at the end of the said term of four years leave and yield up unto the said plaintiff, the glass windows belonging to the said premises, nor any of them well and sufficiently glazed, although the same and every part thereof were put into good and sufficient repair by the said plaintiff, before the commencement of the said term of four years as aforesaid, contrary to the form and effect of his, said S's, covenant in this behalf. And the plaintiff further in fact saith, that the said S, at the end of the said term of four years, did not leave