MARRACK V. ELLIS. nant to use on made thereon, a breach is assigned in not using on demised premises all dung, straw, manure made did not take away the said straw, compost, ashes and manure. COVENANT.-The declaration stated that by indenture Upon a coveof 23d of September, 1820, plaintiff demised to defendant demised prea certain messuage, tenement, farm and premises, with the mises all dung, straw, soil, appurtenances, situate, &c., habendum, to defendant, his compost, ashes executors, &c., from 29th September, then instant, to the and manure full end and term of thirteen years, thence next, &c., at a certain rent, in the said indenture mentioned; and defendant covenanted with plaintiff, (amongst other things,) that he, defendant, would at his own expense provide, sow and soil, compost, harrow in the usual quantity of good clover and other ashes and grass seeds, in such part of the demised premises as should thereon, but on be tilled with barley and oats, from time to time during the the contrary thereof, taking said term, and also should and would use and employ on the away straw, soil, ashes and said demised premises all such dung, straw, soil, compost, manure. Plea, ashes and manure as should arise or be made thereon during that defendant the said term, and at the end, or sooner determination thereof, should and would leave the same on the said premises for the benefit of the plaintiff, (the reed of wheat and oats only excepted.) The declaration then sets out three A verdict being found for other covenants. Upon all these covenants breaches were the plaintiff upon the supassigned. The second breach was as follows: " And the posed insuffisaid plaintiff, in fact, says, that the said defendant did not nor ciency of the plea, without would use and employ on the demised premises all such the production of evidence, dung, straw, soil, compost, ashes and manure as were or the Court rewas made thereon during the said term, (other than the fused to enter reed of wheat and straw,) according to the form and effect of the said indenture in that behalf, but on the contrary thereof, the said defendant since the making of the said seems to be, to indenture, and during the continuance of the said demise, to wit, on the 1st day of October, 1820, and on divers days and times between that day and the day of exhibiting, &c. in the county aforesaid, took and carried away, off and from the demised premises, divers large quantities, to wit, 200 cart loads of straw, (other than the reed of wheat and oats,) 200 cart loads of soil, 200 cart loads of ashes, and direct a new a nonsuit, or trial. The proper course enter a verdict 200 cart loads of manure, which had been, arisen, and made upon the said demised premises during the said term, and` spent and consumed the same elsewhere than on the demised premises, contrary to the form and effect of the said indenture, and of the said covenant so made by the said defendant as aforesaid." The declaration contained a second count upon the indenture to the same effect as that set out in the first count, assigning other breaches. Plea, 1st, non sunt facta; 2dly, issue on first breach; 3dly, as to the second breach actio non, because he says that he, the said defendant, did not take and carry away, off and from the demised premises the said straw, (other than the reed of wheat and oats,) compost, ashes and manure in that breach mentioned, modo et formâ. Issue was taken upon the other breaches, and the replication joined issue upon the pleas. This cause being called on at the last Bodmin Assizes, before Burrough, J. (a), it was intimated by the counsel for the plaintiffs to the counsel for the defendant that the plaintiff would be entitled to a nominal verdict, inasmuch as the second breach of covenant assigned was not covered by the plea, the plaintiff having alleged that the defendant had taken and carried away straw, soil, ashes and manure, whilst the defendant only denied the taking and carrying away of the said straw, compost, ashes and manure. The learned judge being of this opinion, a verdict was taken with 1s. damages, no evidence being given in support of the breaches, and it being conceded that the plaintiff would be entitled to a verdict on the first issue; and the defendant having leave to move for a new trial. Halcomb in the last term moved for a rule calling upon the plaintiff to shew cause why a nonsuit should not be entered, or a new trial had. Counsel differing as to the form in which the leave had been reserved, (a) Counsel for the plaintiff, C. F. Williams and Carter; for the defendant, Wilde, Serjeant, and Halcomb. Lord TENTERDEN, C. J.-Soil must mean compost. There C. F. Williams, and Carter, now shewed cause. is no pretence for the motion for a nonsuit, the learned judge having reported, as the fact undoubtedly was, that he had not given leave to that purpose (a). No answer has been given to that part of the declaration which charges the defendant with removing soil, except the plea of non est factum. If that plea had stood alone, and no evidence had been given on the breaches assigned, there must, upon proof of the execution of the indenture, have been a verdict for nominal damages upon the breaches assigned; and the result must be the same when part of the breach is left uncovered; since, as to that part, nothing but non est factum is pleaded. Everard v. Paterson (b) is an authority to shew that where the pleas purport to answer the whole action, although they do so imperfectly, the plaintiff cannot sign judgment for the parts which are unanswered. Manning, and Halcomb, contrà. The term "soil" must here be taken to be equivalent to "compost or dung.". This is the last definition of the word "soil" given by Johnson, as derived from the verb " to soil," which owes its origin to the French verb "souiller." It would be absurd to suppose that the word was here used in the sense in which it is traced by Johnson from the Latin "solum." The plaintiff was not stipulating that his land should not be. carried away; but he was providing for something in the nature of manure, which was to arise and be made upon the land. Supposing it to be doubtful upon the indenture whether "soil" and "compost" are to be considered as words of the same, or of a distinct meaning, the defendant has in effect, by his plea, alleged that they have the same (a) Ante, 241, 425. (b) 6 Taunt, 645; and see S. C. differently reported as to this VOL. I. point, 2 Marsh. 304; Wilcox v. LL 1827. MARRACK v. ELLIS. 1827. MARRACK 0. ELLIS. meaning, and the plaintiff has accepted the defendant's construction, by joining issue upon the plea. The word "manure" in the plea is a general term not applying merely to the word manure in the indenture and breach, and which may in the plea mean other species of manure than those before enumerated. It may be admitted, that if the plea of non est factum had stood alone the plaintiff might, upon that issue being found for him, have proceeded to assess damages upon the breaches assigned, and that if in addition to the plea of non est factum there had been a plea purporting to answer part of the declaration only, the result might have been the same. But here, the special pleas professing to answer the whole declaration, the judge had no power to inquire into the legal sufficiency of the pleas so as to direct an assessment of damages in anticipation of their being found really to answer less than they assumed to answer (a). BAYLEY, J. The impression upon my mind at present is that soil is not compost; but we should be doing the plaintiff an injustice if we were to direct a nonsuit to be entered, and thereby deprive him of the opportunity of taking the opinion of a court of error. A new trial would be an evil to both parties. The application appears to me to be misconceived (b). The case may be put on a just footing by entering a verdict for the plaintiff on the plea of non est factum; for the defendant, on the plea to the second breach; an assessment of damages as to the "soil," or generally, as to the premises in the second breach not covered by the plea; and discharging the jury from finding a verdict upon the other issues. (a) See Thomas v. Heathorn, 3 D. & R. 647; 2 B. & C. 477, 480. (b) It would seem that if in point of law the plea is an answer to the breach, the assessment of damages would be nugatory, and the defendant would be entitled to Rule discharged. tax his costs on the postea, and issue execution; and that, on the other hand, if the plea is to be considered as leaving a part of the breach unanswered, the plaintiff would be entitled to the postea, CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN HILARY TERM, IN THE EIGHTH AND NINTH YEARS OF THE REIGN OF GEORGE IV. MEMORANDUM. In the course of this Term, Sir James Scarlett, Knight, resigned the office of Attorney General to His Majesty, and was succeeded by Sir Charles Wetherell, Knight, one of His Majesty's Counsel. |