his abridgment, states the opinion of the court to have been as reported by Croke, but adds, that judgment was given against plaintiff pur auter cause. See 2 Roll. Abr. 411. Re

lease, D. pl. 11.

To covenant for non-payment of rent, the defendant cannot plead a release, by the plaintiff, of all demands, at a day before the rent in question became due.

Where the party takes a bond, and also a deed of covenant, to secure an annuity, although the bond is forfeited before a discharge under the insolvent debtors' act, (16 G. 3. c. 3.) yet the covenantor may be sued on the covenant, for payments becoming due, after the discharge. So the insolvent debtors' act, 34 G. 3. c. 69. does not discharge an insolvent, entitled to the benefit of that act", from the payment of the arrears of an annuity becoming due, after his discharge, on a covenant made before that act.

10. Set-off.

In covenant upon an indenture for non-payment of rent*, the defendant pleaded non est factum, and gave a notice of set-off; Mr. J. Denton, at the assizes, was of opinion, that he could not do so upon this issue; upon a motion for a new trial, the court held the evidence admissible; for the general issue mentioned in the act must be understood to mean any general issue. But this case has been since overruled, and the Court of B. R. in Easter T. 56 G. 3. decided that there is not any general issue in this action.

Unliquidated damages, arising from the breach of other covenants to be performed by the plaintiff, cannot be pleaded by way of set-off.

To covenant on an indenture of lease of a house for nonpayment of rent, the defendant pleaded, that by the indenture he covenanted to repair, and to surrender to the plaintiff, at the end of the term, the premises in good repair, "casualties by fire and tempest excepted;" that a stack of chimnies belonging to the house had been thrown down by a tempest, which had damaged the house so much that it would soon have become uninhabitable, if the defendant had not immediately repaired it; that he had been obliged to lay out, in the repairs, a sum of money (exceeding the amount of the

8 Henn v. Hauson, 1 Lev. 99.
t Cotterel v. Hooke, Doug. 97.
u Marks v. Upton, 7 T. R. 305.

* Gower and another v. Hunt, Bull.
N. P. 181. Barnes, 291. S. C.

y 2 G. 2. c. 22.

z Howlet v. Strickland, Cowp. 56. a Weigall v. Waters, 6 T. R. 488.

rent in arrear) which the plaintiff became liable to repay to him, and that he was ready to set-off the same according to the statute, &c. On special demurrer, it was holden, that the plea could not be supported; for admitting that the defendant could maintain any action against the plaintiff (his landlord), yet the sum to be recovered could only be ascertained by a jury; and, consequently, the damages being uncertain, they could not be set-off to the present action.

VIII. Payment of Money into Court.

WHERE Covenant is brought for payment of a sum certain, as for rent, &c. the money may be brought into court.

In covenant upon a lease, the breach assigned was for nonpayment of rent, and not repairing the premises; on motion that upon payment of what should appear due for rent, proceedings as to that should be staid, the court said, "this has often been done, so let it be referred to the master."

In covenant, the breach was assigned in a sum certain (11.) for not dressing corn. On motion to bring the 117. into court, the counsel for the plaintiff consented, admitting that the breach was assigned with equal certainty, as for non-payment of rent.

In Fullwell v. Hall, 2 Bl. R. 837. application was made to the court in an action of covenant to pay money into court, generally, which the court refused; but there being a breach assigned for non-payment of rent, and for not paying 57. per acre for ploughing up meadow land, they permitted money to be paid in on those breaches, on the authority of the preced ing case.

Covenant on a charter party: motion to pay 5047. into court; which was opposed, on the ground, that the demand in the breach was 570.; the court held, that the whole must be brought in.

In covenant for non-payment of rent', and breach half a year's rent in arrear: motion, that, only a quarter being due, the defendant might be permitted to bring that in; but the court said, that it might be referred to the master to see what

b Salk. 596.

c Anon. B. R. Trin. 17 & 18 G. 2. 1 Wils. 75.

d Wainouth v. Houghton, Barnes, 284.

e Spencer v. Fawthorp, B. R. T. 15 & 16 G. 2. MSS.

f Bonwick v, Butler, B. R. H. 17 G. 2. MSS.

was due, and, on bringing that in, to stay proceedings; but there never was a rule to bring in part of the money on a breach. The counsel for defendant not caring to take that rule, the court denied the motion.

Covenant for non-payment of rent: motion, that it might be referred to the master to see what was due for rent; and that on payment into court of so much as might be reported due, the plaintiff might proceed on peril of costs, if he should not recover more. Rule absolute, though opposed. See also Byron v. Johnson, 8 T. R.410.

IX. Evidence.

THE plaintiff can recover only secundum allegata et probata:

Hence, where plaintiff covenanted for a sum of money to build a house within a certain time, and averred in an action for non-payment of the money, that the house was built within the time; it was holden, that evidence that the time had been enlarged by parol agreement, and the house finished within the enlarged tiine, did not support the declaration.

So where the breach assigned was', that the defendant had not used the premises in an husband-like manner, but on the contrary had committed waste. Plea, that defendant had not committed waste. At the trial, the plaintiff offered evidence to shew, that the defendant had not used the premises in an husband-like manner, which did not however amount to waste; the judge rejected the evidence, being of opinion, that on this issue it was not competent to the plaintiff to prove any thing which fell short of waste. This opinion was afterwards confirmed by the court.

In covenant for rent upon a lease by plaintiff to defendant*, the point in issue was, whether J. S. (whose title was admitted by plaintiff and defendant) demised first to the plaintiff, or to another person; it was holden, that J. S. was a competent witness to prove the point in issue.

g Hayes v. Taylor, B. R. M. 9G. 2.

MSS.

h Littler v. Holland, 3 T. R. 590.

i Harris v. Mantle, 3 T. R. 307.
k Bell v.
Harwood, 3 T. R. 308.

In covenant, under the general issue, non est factum', the defendant will not be allowed to give in evidence what amounts to a licence.

X. Judgment.

THE judgment in this action is for the recovery of such damages as the party can prove that he has actually sustained".

If the defendant has judgment against him upon nil dicit, confession, or demurrer, a writ of inquiry shall be awarded to inquire of the damages".

Where the breach was assigned on two covenants, and plaintiff had good cause of action only on one, and issue was joined on both, and verdict for plaintiff on both, and damages entirely assessed, it was holden that plaintiff could not have judgment.

Covenant was brought against two defendants for not building a house; one suffered judgment to go by default, the other pleaded performance, which was found for him; it was holden, that the plaintiff could not have a writ of inquiry of damages, or judgment against that defendant who had suffered judgment by default; because the covenant being joint and the performance of it having been established by the verdict, it appeared, that plaintiff had not any cause of action.

If on the whole record it appears, that the defendant has committed a breach of the covenant declared on, although the plaintiff states his real gravamen informally, judgment cannot be arrested; for, however defective the pleadings are, the court are bound ex officio to give such judgment, as the law requires them to do:

As where A. declared that B., before her intermarriage. with C., by deed covenanted with A. to leave certain matters to arbitration, and to abide by the award, provided it were made during their lives; and protesting that B. had not before her intermarriage performed her part of the covenant,

1 Ratcliffe v. Pemberton, 1 Esp. N. P. C. 35.

m See the form, Townesend, 2 Bk. Judg. 55.

n See the form, 1 Saund, 47.

o Anon. Cro. Eliz. 685.

p Porter v. Harris, 1 Lev. 63.

q Charuley v. Winstanley and wife, 5 East, 266.

averred that after making of the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay a certain sum; and the breach assigned was the non-payment of the sum so awarded. After verdict for plaintiff, on non est factum pleaded, it was moved in arrest of judgment, that the marriage of B., after entering into the covenant and before award made, was a revocation of the arbitrator's authority, and consequently there could not be any breach of an award which he had not any authority to make. Lord Ellenborough, C. J. said, that if the case had come on upon a special demurrer, as for a defective allegation of the breach of covenant by marrying, there would have been good ground for the defendants' objection to the manner of declaring; but although the plaintiff had stated his gravamen informally, yet there was a sufficient allegation of the fact of the marriage being before the award, which constituted a breach of covenant to warrant the court in giving judgment for the plaintiff on that ground. Rule discharged.