INFORMER. Second count, on 9 Ann. c. And the said A. B. in fact further saith, that the said C. D. within BY COMMON the space of six months next before the commencement of this suit, to wit, on the said, &c. at, &c. aforesaid, did expose to sale (g) a certain partridge, the game of England aforesaid, he the said C. D. not 25. for exposthen being a person qualified in his own right to kill game, or being ing game to sale (ƒ). entitled thereto under any person so qualified, contrary to the form of [⚫ 240] the statute in such case made and provided; whereby and by force of the statutes in such case made and provided, the said C. D. forfeited for his said last-mentioned offence the further sum of L.5, and thereby and by force of the statutes in that case made and provided, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L 5, so forfeited as last aforesaid, residue of the said sum above demanded. Yet the said C. D. &c.—[Conclusion, omitting the words "to the damage," &c. in K. B. as ante, 16, in C. P. as ante, 19.] for rent in K. Middlesex, (to wit.) (c). A. B. complains of C. D. being in the cus- 1.-By lessor tody of the marshal of the Marshalsea of our lord the now king, before against lessee, the king himself, of a plea of breach of covenant. For that whereas B. by bill (6). heretofore, to wit, on the day of ―, A. D. (d) at, &c. (e) by a certain indenture then and there made between the said A. B. of the one part, and the said C. D. of the other part (ƒ), (the counterpart Profert. The indenture. fice in the singular number. 7 East. ante, 223. 516. (f) See the notes to the prior count. (g) Any unqualified person having game in his possession, and not being entitled thereto under some qualified person, is subject to this penalty, though in fact he never offered game to sale, 9 Ann. c. 25. s. 2. (a) As to the title of the declaration, see ante, 12. a. (b) For the forms of commencements in covenant by original, in K. B. see ante, 10. in the Common Pleas, ante, 18. See the declaration in debt for rent, (c) As to the venue in covenant on leases in general, see vol. i. Index, Declaration Venue.-In covenant by lessor against lessee, the venue is always transitory-but it is local against the assignee of the lessee. (d) A deed may be stated in plead- (e) As to the venue, supra, note c. LESSOR The haben, dum. The redden. dum. (g) of which said indenture, sealed with the seal of the said C. D. the said A. B. now brings here into court, the date whereof is the day and LESSEE, &c. year aforesaid,) the *said A. B. did demise (h), lease, set, and to farm [⚫ 242 ] The demise. let unto the said C. D. his executors, administrators, and assigns, a The premises. certain messuage or dwelling-house, &c. situate, &c. (i) (except as in the said indenture is excepted,) to have and to hold the said messuage or dwelling house, &c. with the appurtenances, (except as aforesaid,). unto the said C. D. his executors, administrators, and assigns, from the day of '9 then last past, to the full end and term of years thence next ensuing, and fully to be complete and ended. Yielding and paying therefore yearly and every year, to the said A. B. his heirs, or assigns, the clear yearly rent or sum of L., payable quarterly, at the four most usual feasts or days of payment of rent in the year, (that is to say,) on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December in each and every year, by even and equal portions. And the said C. D. did thereby for himself, his executors, administrators, and assigns, covenant, promise, and agree, to and with the said A. B. his heirs (k) and assigns, that he the said C. D. his executors, administrators, or assigns, should and would well and truly pay, or *cause to be paid, to the said A. B. his heirs or assigns, the said yearly rent or sum of L.- at the seve The covenant to pay rent. [243] (g) If both parts of the deed be originals, that is, signed by all the contracting parties, say, one part of which said indenture, &c." A profert, or an excuse for the want of it, must in general be stated, or the declaration will be bad on special demurrer, 4 Ann. c. 16-If a profert be stated and the deed cannot be produced, the plaintiff will be non-suited, on the plea of non est factum, 4 East. 585-As to proferts in general, see 1 Saund. 9. n. 1. ante, 197. Index, vol. i. tit. Profert. (h) The lease generally runs, "hath demised," &c. and "doth demise," &c.; the last words only are to be stated in the past tense, and every other part of the lease necessary to be stated, is to be set forth in general in the past tense, and according to the legal effect; -in a declaration-" the testatum existit," or, it is witnessed, &c. that A. B. "demised," is sufficiently certain, though not in a plea; see vol. i. Index, tit. Testatum Existit; 1 Saund. 274. n. 1. Ld. Raym. 1539. (i) If the description of the premises be very long, say, "certain tenements, with the appurtenances particularly mentioned and described in the said indenture, situate, &c. and in order to avoid variance, it is advisable not to state the abuttals, or any other very particular description; 1 Saund. 233. n. 2. 2 Saund. 366. n. 1. 9 East. 188 The court will censure the statement of any superfluous matter, Cowp. 665. 727. Dougl. 667. If however personal property have been demised, together with land, &c. the above concise statement will not suffice; and when the action is for not repairing buildings, ditches, &c. it is most usual to state all such premises. (4) The words of the lease and covenant are in general to be set out verbatim. When the lessor is seised in fee, the covenants are with him and his heirs and assigns; but if he be only a termor, they are with him and his executors, administrators, and assigns. LESSOR LESSEE, &C. entry. ance. ral days and times aforesaid (1). As by the said indenture, reference being thereunto had, will (amongst other things) more fully and at large appear (m). By virtue of which said demise, the said C. D. af- Reference to terwards, to wit, on, &c. entered into and upon all and singular the lease. said demised premises, with the appurtenances, and became and was Lessee's possessed thereof, for the said term so to him thereof granted as aforesaid (n). And although the said A. B. hath always, from the time of Plaintiff's gemaking the said indenture, hitherto well and truly performed, fulfilled, neral performand kept all things in the said indenture contained on his part and behalf, to be performed, fulfilled, and kept, according to the tenor and effect, true intent and meaning of the said indenture, to wit, at, &c. aforesaid (). Yet protesting that the said C. D. hath not performed, Defendant's fulfilled, or kept any thing in the said indenture contained on his part general nonperformance. and behalf, to be performed, fulfilled, and kept, according to the tenor and effect, true intent and meaning thereof (h), the said A. B. saith, Particular breach; nonthat after the making of the said indenture, and during the said term thereby granted, to wit, on, &c. (g) at, &c. aforesaid, a large sum of rent. money, to wit, the sum of L.-, of the rent aforesaid, for — years [⚫244] and a half of the said term then elapsed, became, and was, and still is in arrear and unpaid, the said A. B. contrary to the tenor and effect, true intent and meaning of the said indenture, and of the said covenant (r) of the said C. D. by him in that behalf, so made as aforesaid, to wit, at, &c. aforesaid. And so the said A. B. in fact saith (s), that Usual concluthe said C. D. (although often requested so to do) hath not kept the sion. payment of (1) No unnecessary covenant or other irrelevant parts of the deed, should be stated. 1 Saund. 233, n. 2. 2 Saund. 366. n. 1 ante, 242. n. i. dent; see vol. i. Index. tit. Declaration. (p) There is no occasion for this protestation or allegation of the general nonperformance of covenants by the de (m) The reference to the lease is fendant; the declaration may proceed not necessary. at once to the material averments, and the particular breach for which the action is brought. (n) In an action against a lessee for years, it is not necessary to allege an entry. 1 Saund. 203. n. 1. C. D. Pleader. 2 W. 14. Dougl. 455. 7 East. 341. 11 Co. 52 b.; and even against the assignee of the lessee, such averment seems unnecessary; see Woodfall's Law of Landlord and Tenant, 2d edit. 7 East. 340. n. a. when stated it should be alleged that the entry was after the right to occupy commenced. (0) This general averment of performance by the plaintiff is unnecessary. 1 Saund. 235. n. 5. Rep. T. Hard. 343, 4. 2 Mod. 309.-If there be a condition precedent, performance must be specially shewn, as in the next prece (q) It must be shewn when the rent became due. Gilb. on Debt, 407. (r) The breach may be in the negative of the covenant generally, 3 T. R. 307. or according to the legal effect, 1 Saund. 235. n. 6. As to the averments, and the statement of the breach in general, see vol. i. Index, tit. Declaration Breach. (s) This statement is unnecessary, for there being a breach of covenant alleged before, it is holden unnecessary to make a repetition of it in the conclusion. 1 Saund. 235. n. 7. 2.-Lessor Covenant to repair, after lessor should have put in repair, and being allowed rough timber. said covenant so by him made as aforesaid, but hath broken the same, and to keep the same with the said A. B. hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said A. B. of L.- (t), and therefore he brings his suit, &c. Pledges, &c. [The commencement in K. B. is as ante, 241, by bill is as ante, 13, by against assig original as ante, 10, in C. P. as ante, 18, and then proceed as follows:] nee of lessee, for not repair--For that whereas heretofore, to wit, on, &c. at, &c. by a certain ining, with aver- denture then and there made between the said A. B. of the one part, ment of plain- and one E. F. of the other part, (the counterpart of which said indentiff's performance of a con- ture, sealed with the seal of the said E. F. the said A. B. now brings dition prece here into court, the date whereof is the same day and year aforesaid,) dent (u). the said A. B. for the considerations therein mentioned, did demise, lease, set, and to farm let unto the said E. F. his executors, adminis[* 245] trators, and *assigns, all that messuage, &c. [Here set out the premises —the habendum and the reddendum shortly, as advised in 1 Saund. 233. n. 2. 2 Saund. 366. n. 1. ante, 242. n. i. and then state the cove◄ nants as follows :]-And the said E. F. did in and by the said indenture for himself and his executors, administrators, and assigns, covenant, promise, and agree to and with the said A. B. his heirs and assigns, (amongst other things) in manner following, (that is to say,) that he the said E. F. and his assigns, from and after the said messuage, &c. &c. should have been put in good and tenantable repair by and at the expense of the said A. B. 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, uphold, maintain, and keep the said messuage or tenement and buildings, gates, stiles, &c. (as in the covenant) in good and tenantable repair, order, 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 A. B. Covenant to his heirs or assigns ;) and the same premises and every part thereof, leave in repair. should and would leave in such good repair, order, and condition, at the end, or other sooner determination, of said term, and should and would peaceably and quietly quit, yield, and deliver up to the said A. B. his heirs or assigns, without doing, committing, or suffering to be done or committed, any waste, spoil, or damage to the same, or any part thereof. And also should and would well and sufficiently uphold, Covenant to cleanse ditches, &c. (t) In all declarations in covenant, a sum should be inserted sufficient to cover the real demand and interest to the time final of judgment. (u) Most of the notes to the preceding precedent, are applicable to this. An heir, (4 T. R. 75.) and an executor, (1 Salk. 316,7.) may be declared against as assignee, for a breach of covenant after he became interested.-An underlessee cannot be sued by the lessor in covenant or debt on the lease; Holford v. Hatch, Dougl. 183. 445. Cowp. 766. What is prima facie evidence of defendant's being assignee, see Peake's L. E. 266, 7. LESSOR D. LESSEE, &c. the lease. Entry of les see. cleanse, scour, and repair, yearly and every year during the said demise, all the ditches, trenches, and water-courses, in the piece or parcel of meadow land, called meadow, and all other the ditches, trenches, and water-courses, in and upon every part of the said other premises thereby demised, as often as necessary, so as to keep the same cleansed, scoured, repaired, and in good condition, and should and would deliver up unto the said A. B. his heirs or assigns, the same in such good order and condition at the end of the same term as aforesaid. As by the said indenture, reference being thereunto had, will Reference to (amongst other things) more fully and at large appear. By virtue of which said indenture, the *said E. F. afterwards, to wit on the, &c. entered into the said demised tenements, with the appurtenances, and became and was so possessed thereof, for the said term so to him thereof granted as aforesaid. And the said A. B. in fact saith, that Assignment after the making of the said indenture, and during the said term thereto the defendby granted, to wit, on, &c. (x) at, &c. aforesaid, all the estate, right, title, interest, term of years then to come and unexpired, property, profit, claim, and demand whatsoever, of him the said E. F. of, in, and to the said demised premises, with the appurtenances, by assignment thereof then and there made legally, came to and vested in the said C. D. Whereupon and whereby the said C. D. then and there entered Defendant's (y) into and upon all and singular the said demised premises, with the entry. appurtenances, and became and was thereof possessed, and continued so thereof possessed, from thence until the day of ant. [⚫ 246] formance by plaintiff. A. D. when the said demise ended and determined, to wit, at, &c. aforesaid. And although the said A. B. hath always, from the time General perof making the said indenture, hitherto well and truly performed, fulfilled and kept all things therein contained, on his part and behalf to be performed, fulfilled, and kept, according to the tenor and effect, true intent and meaning thereof, to wit, at, &c. aforesaid. Yet protest- Defendant's -ing that the said C. D. since the said assignment so made as aforesaid, general nonhath not performed, fulfilled, or kept any thing in the said indenture performance. (x) The day is not material; it is usual to insert some day about the time of the supposed assignment to the defendant. In an action by the assignee of the reversion, he must set forth in the declaration the operative part of the deed, &c. by virtue of which he is entitled to the reversion. 1 Saund. 112. b. n. 1. 234. n. 3.; though an assignee of a term in an action against the lessor need not shew the assignment to have been by deed; 1 Saund. 234. n. 3. 276. notes 1 and 2-In an action against the VOL. II. assignee of the lessee, &c. the above (y) This does not seem necessary, |