was, in this case, reversed; for there could be no appor tionment for the three sheets. XVI. Of the pleadings on the part of the defendant. 1. PERFORMANCE. If all the covenants in an indenture are in the affirmative, defendant may plead performance, generally; but if any are in the negative, he must plead to those specially, (for a negative cannot be performed,) and to the rest generally. And if he pleads otherwise, on demurrer, plaintiff shall have judgment. 1 Esp. Dig. 372. Cro. Eliz. 691. Laughwell v. Palmer, 1 Esp. Dig. 372. Therefore, where defendant covenanted by charter party, that he would sail from the Thames to such a place 1 Sid. 87. in Spain, and the words were, "that he decederet, procederet, et non deviet." He pleaded performance generally, and it was held ill; for there was an express negative covenant, "that he should not deviate," to which he should have pleaded specially; for though he sailed from the Thames to Spain, he might have deviated. Ibid. Palmer v. Ekins, So if any of the covenants be in the disjunctive, defendant must shew which of the covenants he has performed. 2. NIL HABUIT IN TENEMENTIS. If a lease be by indenture, the lessor and lessee are concluded from avoid- Stra. 818. ing the lease; and if an action be brought, and plaintiff declares on the indenture, and the defendant pleads that the lessor, nil habuit in tenementis, the plaintiff, instead of replying the estoppel, may demur; because the estoppel appears on the record. 3. NON EST FACTUM. This is a good plea in an action of covenant. Under this plea, defendant may shew, that some of the covenants in the deed have been altered or erased, or he may plead it; for if any covenant be alter: ed or erased, the whole deed is discharged: For the deed is a complication of all the covenants, so that by changing any, the deed remains no longer the same. Selw. 455. 1 Esp Dig. 375. 1 Esp. Dig. 375. i Esp. Dig. 375. Ibid. 376. 'Rogers v. Payne, 2 Wils, 376. Blake's Case, 6 Co. 43. Gylbert v. Fletcher, Selw. 454. Selw. 458. 4. ENTRY AND EVICTION is also a plea in this action; but it must be pleaded to be such as disabled defendant from performing his covenant. As where lessee covenanted to build a house upon the land within ten years, and lessee assigned the term. On action brought for non-performance, defendant pleaded, that the lessor had entered, and held possession for part of the ninth year. Per Cur. defendant should have shewn that lessor entered by wrong, and held him out, so that he could not build; for perhaps lessor's entry might have been lawful, as for non-payment of rent, which in fact was the case. 5. RELEASE is also another plea in this action. If, before a covenant is broken, the covenantee releases to him all actions, suits and quarrels, this doth not discharge the covenant itself, because, at the time of the release, there was no debt, duty, or cause of action. But a release of all covenants is a good discharge of the covenant before it is broken. Wherever a discharge is pleaded in the nature of a release, defendant must plead it to be by deed, or it will be bad: For as the covenant is by deed, by deed only shall it be discharged. 6. ACCORD AND SATISFACTION is another good plea in covenant. For though this action is founded on a deed, and a deed can only be discharged by a deed, yet this is a good plea; for it is not pleaded in discharge of the covenant itself, but only in discharge of the damages; for the covenant remains. 7. INFANCY is also a good plea: But this matter must be specially pleaded, and cannot be given in evidence, upon non est factum. 8. NON INFREGIT CONVENTIONEM. Selwin observes, that he is not aware of any case in which non infregit conventionem has been holden to be a good plea on deThe same author adds, that if it can be pleaded in any case, it must be in the single case where the de murrer. claration states a single breach of covenant in the affirma tive, and concludes with an affirmative allegation, "And so the defendant has broken his covenant.” XVII. Of the damages. Marston v. Hobbs, 1. In covenants of seizin, and a right to convey, the legal measure of the damages is the consideration paid, 2 Mas. Rep. 439, 440. and interest upon it, from the time of payment to the Ibid. 461. time of the verdict. Bickford v. Page, 2. In an action upon a covenant of warranty of lands, Gore v. Brazier, the measure of damages is the value of the lands at the 3 Mas. Rep. 523. time of the eviction. 3. Where the breach assigned is "the not repairing Vivian v. Campion, houses according to covenant," the damages ought to be Salk. 141. such as are sufficient to put the premises in repair, at the time of the action brought; and to that purpose they ought to be applied. 3 Mas. Rep. 545. 4. In a personal action of covenant broken, it is a ge- Gore v. Brazier, neral rule of law, that such pecuniary damages be recov ered, as shall be an adequate compensation for the injury sustained by the breach of the covenant. XVIII. Of the judgment. If there be a forfeiture annexed to the covenant, and an action is brought for the recovery of such forfeiture, either at the common pleas or supreme judicial court; in such case it is provided by statute, that when the forfeiture, breach, or non-performance, shall be found by jury, by the default, or the confession of the defendant, or upon demurrer; the court, before which the action is, shall make up judgment therein for the plaintiff, to recover so much as is due according to equity and good conscience. Again: If the covenant be " for matters and things, to be done at several times," and there be penalty for performance, and the plaintiff recover the forfeiture of such penalty; in such case, it is provided by statute, that the Stat. 1798, c. 77, s. 6. Case where there is judgment for the penalty, and the exe cution issues for the damages only that are really sustained. In such case plaintiff may have a scire facias gesting further damages. court shall enter up judgment for the whole of such forfeiture, and award execution only for so much of the debt or damage as is due or sustained at that time, so always that the said judgment shall stand and be a secu rity to the plaintiff, his executors and administrators, for on the judgment, sug. any further and after payment or damages, he or they may have just right to, by the non-performance or breach of the covenant; and who may have a writ or writs of scire facias on said judgment, from such court where the same was obtained, against the defendant, his heirs, executors, or administrators, suggesting other and further damages sustained by non-performance or breach of such covenant; and to summon him or them to shew cause why execution should not be awarded upon said judgment, for other and further damages, as set forth in the writ, and made out to the court; upon which the court shall proceed as aforesaid, as often as such damage shall accrue, and be sued for as aforesaid; or may have his action of debt, or on the case, as the case may require, for such payment or damages as aforesaid. TITLE XLI. CURTESY. WHEN a man and his wife shall be seized of lands, ten- Stat. 1783, c. 36, s. 5, ements, or hereditaments, in her right in fee, and issue shall be born alive of the body of such wife, that may inherit the same, and such wife shall die, the husband shall have and hold such estate during his natural life, as tenant by the curtesy. The above statutory provision, being merely in affirmance of the common law, it will be necessary to resort to English authorities for its exposition. There are four requisites necessary to make a tenancy by the curtesy; marriage, seizin of the wife, issue, and death of the wife. 1. The marriage must be legal. 2. The seizin of the wife must be an actual seizin, or possesion of the lands; not a bare right to possess, which is a seizin in law, but an actual possession, which is a seizin in deed. And, therefore, a man shall not be tenant by the curtesy of a remainder or reversion. 3. The issue must be born alive. Some have had a notion that it must be heard to cry ; but this is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence. The issue also must be born during the life of the mother; for, if the mother dies in labour, and the Cæsarean operation is performed, the husband, in this case, shall not be tenant by the curtesy: Because at the instant of the mother's death, he was clearly not entitled, as having no issue born, but the land descended to the child, while he was yet in his mother's womb; and the estate being once so vested, shall not afterwards be taken from him. 2 Bl. Com. 127. Ibid. Ibid. Ibid. |