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LESSOR

V.

LESSEE, &C.

Averment of

condition pre-
cedent (z).
[247]

First breach,

in not repair ing; and for leaving out of repair.

contained, on his part and behalf, as such assignee as aforesaid, to be *performed, fulfilled, and kept, according to the tenor and effect, true intent and meaning of the said indenture, the said A. B. in fact saith, performance that although the said messuage or tenement, and out-buildings, in by plaintiff of the possession of the said E. F. at the time of making the said indenture, were after the making thereof, to wit, on, &c. put in good and tenantable repair, by and at the expense of the said A. B. and although timber in the rough, sufficient and proper for all necessary repairs, was allowed, and from time to time provided and set out by the said A. B. to wit, at, &c. aforesaid (a); yet the said C. D. did not, nor would after the said assignment, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances, as aforesaid, at his own costs and charges, support, uphold, maintain, and keep, all and every the said messuage or tenement, and buildings, gates, &c. (as in the covenant,) of the said demised premises, in good tenantable repair, order, and condition, nor did nor would leave the same premises in such good repair, order, 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 C. D. after the making of the said indenture, and after the said assignment to him the said C. D. as aforesaid, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances as aforesaid, to wit, on, &c. and from thence for a long space of time, to wit, from thence until the determination of the said term, suffered and permitted the said messuage, dweiling-house, buildings, gates, &c. (as in the covenant,) to be and continue, and the same were for and during all that time, ruinous, prostrate, fallen down, and in great decay, for want of needful and necessary maintaining, supporting, upholding, *and keeping the same; and the said C. D. at the determination of the said term, left the same premises in such repair, order and condition, as last aforesaid, contrary to the form and effect of the said indenture, and of the covenant so made by the said E. F. for himself and his assigns, as aforesaid, to wit, at, &c. aforesaid. And the said A. B. in fact, further saith, that the said C. D. did not, nor would, yearly and every year, during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances, as aforesaid, well and sufficiently uphold, cleanse, scour, or repair, all the ditches, trenches, and water-courses, in the said piece or parcel of meadow land, called

[248]

Second breach, for not cleansing ditches, &c.

meadow, and all other the ditches,

(2) As to conditions precedent, see 2 Saund 352. c. Willes, 496.-Ante, vol. i. Index, Condition Precedent.

(a) This averment being traversable, must correspond with the fact;

if the plaintiff was merely ready to find timber, let the allegation be accord. ingly, and aver notice of the plaintiff's readiness to the defendant.

LESSOR

V.

LESSEE, &C.

trenches, and water-courses, in or upon the said premises, by the said indenture demised, as often as was necessary, so as to keep the same cleansed, scoured, repaired, and in good condition; nor did, nor would deliver up the same unto the said A. B. 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 C. D. after the making of the said indenture, and of the said assignment, and during the continuance of the said demise, and whilst he was so possessed of the said demised premises, with the appurtenances, to wit, on, &c. and from thence for a long space of time, to wit, from thence until the determination of the said demise, suffered and permitted the said ditches, trenches, and water-courses, in the said piece or parcel of land called — meadow, and all other the ditches, trenches, and water-courses, 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, and ruinous, out of repair, and in bad order and condition, for want of well and sufficiently cleansing, scouring and repairing, as aforesaid; and at the determination of the said term, he the said C. D. delivered up the same unto the said A. B. in such order and 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. [249] aforesaid. And so the said A. B. in fact saith, that the said C. D. (al- Conclusion, though often requested so to do) hath not kept the said covenants so made by the said E. F. for himself and his assigns, with the said A. B. in manner and form aforesaid, but hath broken the same, and to keep the same with the said A. B. hath hitherto wholly refused, and still refuses so to do. To the damage of the said A. B. of L.therefore he brings his suit, &c.

(a), and

Breaches of different covenants between lessor and lessee, &c. may Breaches in readily be framed according to the particular circumstances of each general. case, and in general may be in the negative of the words of the covenant; see 3 T. R. 307. and ante, 194. n. r.—Vol. i. Chapter on Declations.-The above precedents may therefore, in this respect, suffice.But as difficulties frequently occur in stating the different titles of plaintiffs in covenant, the following forms are given, and which are arranged nearly according to the plan in 2 Bla. Com. respecting real

estates.

(a) See ante, 244. n. t.

II. TITLE PLEADED.

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1. TENURE.

For that whereas before, and at the time of the making of the indenture herein after mentioned, one E. F. was seised in his demesne as of fec, of and in the tenements hereinafter mentioned to have been demised, and held the same in free burgage of the city of London, and being so seised heretofore, to wit, on, &c. at, &c.

4. Inducement that lessor

was seised in

fee simple of corporeal hereditaments.

[* 250 ]

3. Seisin in fee, &c. in husband and wife, in right of the wife(g).

II. ESTATE, AND QUANTITY OF INTEREST (c).

[See the commencement, ante, 241.]-For that whereas one G. H. before and at the time of the making of the indenture *hereinafter mentioned, was seised (d) in his demesne (e) as of fee (ƒ), of and in the tenements, with the appurtenances hereinafter mentioned to have been demised, to wit, at, &c. And being so seised heretofore, to wit, on, &c. at, &c. by a certain indenture then and there made between the said G. H. of the one part, and the said C. D. of the other part, one part, &c. [Here set out the profert, and all necessary parts of the lease, as ante, 241, and 241, as to the statement of the conveyance, &c. by virtue of which the plaintiff claims. If the seisin be stated as a consequence of a conveyance, &c. the statement runs as follows:"Whereupon and whereby the said A. B. then and there became, and was, and from thence hitherto hath been, and still is, seised in his demesne as of fee, of and in the said tenements, with the appurtenances, and being so seised," &c.]

See post

[See the commencement, ante, 241.]-For that whereas the said A. B.

(b) 2 Saund. 234.-As to the state. ment of copyhold and customary freeholds, see post 205 and 207. Borough English, 8 Wentw. 201. Index, and of seisin in gavel-kind, 1 Burr. 326.—-Of a rent, 2 Rich. C. P. 350.-Of an advowson, &c. see post. 250. n. e.

a. b. n. 1. C. D. Pleader. C. 35. 2 Wils. 224. They seem also improper in pleading a reversion on an estate of freehold. Co. Lit. 17. b. n. 4. Plowd. 191. a.-Seisin of an advowson, &c. "as of fee and right," 1 East 488. Thomp. Ent. 203.-Seisin by disseisin,

(c) As to this division, see 2 Bla. 1 Saund. 55. Com. 103.

(d) As to the words "seised," or, "possessed," see Com. Dig. Pleader. C. 85. Co. Lit. 17. a.

(e) 2 Bla. Com. 105, 6. Heath Max. 145. If the estate be incorporeal, the words, “in his demesne," are to be omitted, 2 Bla. Com. 106. Co. Lit. 17.

(f) As to the words, "as of fee," see Co. Lit. 17. b. In a writ of right, also say, “and right,” 5 East, 272. 2 Bos. and Pul. 570.

(g) Dougl. 329. 1 Saund. 253. n. 4. 2 Saund. 235. n. 2. 269. 283. n. 1. Hob, 12. Heath's Max. 146.

QUANTITY OF
INTEREST.

and C. his wife, before and at the time of the making of the indenture 2. ESTATE, AND hereinafter mentioned were seised in their demesne as of fee, in right of the said C. of and in the tenements, with the appurtenances hereinafter mentioned to have been demised, to wit, at, &c. and being so seised, &c. [Here state the lease by husband and wife, and the covenants, the lessee's entry, and the plaintiff's derivative title, &c. If the seisin in fee in right of the wife be stated as a consequence of a conveyance, &c. the statement is as follows:-" Whereupon and whereby the said A. B. and C. his wife, then and there became, and were, and from thence hitherto have been, and still are, seised in their demesne as of fee in right of the said C. (h) of and in the said tenements, with the appurtenances, and being so seised, &c.]

[* 251 ]

For that whereas our sovereign lord the now king, on, &c. at, &c. 6. Seisin in was and still is seised in his demesne as of fee, in right of his crown in a corporathe king, or of England, of and in, &c. to wit, at, &c.

-

tion (i).

[See the commencement, ante, 241.]--For that whereas one E. F. 7. Seisin in tail (). before and at the time of the making of the indenture hereinafter mentioned, was seised in his demesne as of fee tail, (or, if special entail, add," that is to say, to him and the heirs lawfully issuing of the body of him the said E. F. on the body of to be begotten, (or, “ of the bodies of the said E. F. and of -," &c.) of and in the tenements, with the appurtenances hereinafter mentioned to have been demised, to wit, at, &c. and being so seised, &c.-[Here set forth the lease, c. and plaintiff's derivative title. &c.—If the seisin in tail be stated as a consequence of a conveyance, &c. the statement is as follows :Whereupon and whereby the said E. F. then and there became, and

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[* 252 ]

(h) If this consequence be mistated, the declaration, &c. will be bad on special demurrer, Dougl. 329. sed quære vide Plow. 191. a.

(i) As to the statement of seisin in the King, see 1 Saund. 187 n. 1. Dyer, 85. b. It must be shewn quo jure, the king is seised, whether in right of his crown, duchy of Lancaster, &c. 2. Bla. Com. 105, 6. 4 Mod. 355. Heath's Max. 146.-As to the pleading a seisin in a Corporation sole or aggregate, see 1 Saund. 187. n. 1. 2 Saund. 310. 317. 319. n. 4. Thomp. Ent. 303. and the precedents, 1 Saund. 106. Poph. 163. b. Bro. Red. 480.

(k) 1 Saund. 255. 2 Rich. C. P. 350. -In a declaration, when the title is sta

ted as inducement, the commencement
of the estate tail need not in general be
stated, though it is otherwise in a plea,
C. D. Pleader, E. 19. C. 35.-In pleading
seisin of an estate by gift, to husband
and wife, and to the heirs of the body
of the wife by the husband begotten, as
the wife has an estate in special tail,
and the husband only an estate for life,
it should be alleged, "that the hus-
band and wife were seised together,
and to the heirs of the body of the wife
in her right," and not that they were
seised of the freehold, or fee tail. Co.
Lit. 26. a. n. 1. It is not necessary to
aver the continuance of the life of the
tenant in tail, or of the estate tail. 1
Saund. 235. b. n. 8.

2. ESTATE, AND

was, and from thence hitherto hath been and still is seised in his deQUANTITY OF mesne, as of fee tail of and in the said tenements, with the appurtenants."]

INTEREST.

8. Seisin for life (1).

9. The like by a rector, in

right of his

rectory (m).

10. Tenancy

[See the commencement, ante, 241.]-For that whereas one E. F. before and at the time of making of the indenture hereinafter mentioned, was seised in his demesne as of freehold, for the term of his natural life, (or, " for the term of the natural life of G. H.") of and in the tenements, with the appurtenances hereinafter mentioned, to have been demised, to wit, &c. and being so seised, &c.-[Here set forth the lease, &c. If the seisin for life be stated as a consequence of a conveyance, &c. the statement is as follows:-"Whereupon and whereby the said E. F. then and there became, and was, and from thence hitherto hath been, and still is, seised in his demesne as of freehold, for the term of his natural life, of and in," &c.]

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For that whereas one E. F. before and at the time of the making of the indenture hereinafter mentioned was and still is rector of the church of in the county of — and as such rector then was, and thence hitherto hath been, and still is seised in his demesne, as of fee in right of his said church, of and in the tenements hereinafter mentioned to have been demised, to wit, at, &c.; and being so seised, &c.-[If his seisin be stated as a consequence of a conveyance, the allegation will nearly resemble that in the last precedent.]

*[See the commencement, ante, 241.]-For that whereas one E. F. by curtesy, or before and at the time of the making of the indenture hereinafter menby dower (n). [253] tioned, was seized of the tenements hereinafter mentioned to have

C.

(1) See the form, 1 Saund. 231.
D. Pleader. C. 35. Co. Lit. 42. a. In
a declaration, when the title is stated
merely as inducement, it is not neces-
sary to shew the commencement of the
estate for life, but it is otherwise in a
plea, C. D. Pleader, C. 35. E. 19. 1
Saund. 187. n. 1. 8 T. R. 488. Unless
the cestui qui vie be a party to the ac-
tion, or no title be derived under him,
it must be averred that he was living
at the time the cause of action accrued,
as to which averment, see 1 Saund.
235. n. 8. 2 Bla. Com. 120. In plead-
ing a lease for life, which passes by
livery and seisin, no entry of the lessee
should be stated, 11 Co. 52. b.

(m) See the precedents, Winch.
Ent. 1161. Willes. 283. Poph. 163.

2 Saund. 235. n. 2. The averment of the continuance of the rector's life when necessary, will be as in Winch. 1162.

(n) See 2 Bla. Com. 126. 3 B. and P. 652, 3. For precedents, see 2 Rich. C. P. 350. 1 East. 213. 1 Saund. 250. 256. Rast. Ent. 580. b. In a declaration, when the title is stated merely as inducement, the above form will suffice, but in a plea it is in general necessary to shew the commencement of the title as in some of the precedents referred to. As to pleading tenancy by dower, see 2 Saund. 423. 305. b. n. 13. 3 East. 276. Vin. Ab. tit. Dower, M. a. pl. 25, &c. Free Bench, 5 East. 273.

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