Selwyn's Abridgment of the Law of Nisi Prius

built within the time; it was held, that evidence that the time had been enlarged by parol agreement, and the house finished within the enlarged time, did not support the declaration (r). 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 the defendant had not committed waste. At the trial, the plaintiff offered evidence to show, that the defendant had used the premises in an unhusband-like manner, which however did not 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, and this opinion was afterwards confirmed by the court (s). So in an action on a covenant to keep and deliver up premises in repair, the breach assigned was, that the defendant did not repair or deliver up in repair, but, on the contrary, suffered the premises to be ruinous and in decay, for want of necessary reparations, &c., and at the end of the term left them so out of repair; it was held, that under this breach the lessor could not recover for voluntary waste, as by removing windows, &c. (t). So e converso on a declaration alleging voluntary waste only, the plaintiff cannot recover for permissive waste (u).

X. Damages.
Costs, p. 565.
Judgment, p. 566.

Damages.-Defendant, by a settlement made on his marriage, conveyed estates upon certain trusts, and covenanted with the trustees to pay off incumbrances on the estates, to the amount of 19,000l., within a year; it was held, that on his failing to do so, the trustees were entitled (at law) to recover the whole 19,000l. in covenant, though no special damage was laid or proved (x). So where, the plaintiff and defendant being joint makers of a promissory note, the defendant as principal and the plaintiff as his surety,

(r) Littler v. Holland, 3 T. R. 590. The remedy in such a case, if the work has been accepted, being by an action upon a quantum meruit for work, labour, &c. Lucas v. Godwin, 3 B. N. C. 737; see Legge v. Harlock, 12 Q. B. 1015; or, if the finishing of the house by a certain time be not a condition precedent to the payment of the money, by averring performance of all conditions precedent generally, leaving the defendant to set up the nonfinishing of the house by the agreed date in his plea, and then demurring. Under the same circumstances in assumpsit the action would lie on the original agreement, and the acceptance of the house would

be (semble) evidence of a waiver of the condition precedent, even if it were one. Ripley v. M'Clure, 4 Exch. 345; or upon new agreement the same as the original one, except in the one particular of the time of performance; Stead v. Dawber, 10 A. & E. 57; but in covenant no parol waiver or substitution would be valid, ante, p. 562, and Sugd. V. & P. 219 (13th edit.)

(s) Harris v. Mantle, 3 T. R. 307; Hawkes v. Orton, 5 A. & E. 367, acc. (t) Edge v. Pemberton, 12 M. & W. 187. (u) Martin v. Gilham, 7 A. & E. 540. (x) Lethbridge v. Mytton, 2 B. & Ad.

772.

the defendant covenanted with the plaintiff to pay the amount to the payee of the note on a given day, but made default, it was held in an action on this covenant, that the plaintiff was entitled to recover the whole amount by way of damages, though he had not in fact paid it (y). In the above cases there was a distinct covenant to pay a sum certain; and it is the same where the sum, though not specified, is ascertainable, e. g. a covenant to pay the debts of A. B. (2); but in ordinary covenants of indemnity, where the damages are unliquidated, the actual damage sustained (which is a question for the jury) can only be recovered (a).

Defendant had conveyed premises to the plaintiff under a covenant for good title. An action was afterwards brought against the plaintiff by a party having better title, and the plaintiff compromised it for a large sum. It was held, that in an action for breach of the covenant for good title, the plaintiff might recover the whole sum so paid, and also his costs as between attorney and client, in the compromised suit, a covenant for title being a contract of indemnity (b); and this, although he had not given any notice of that suit to the defendant, for the only effect of want of notice in such a case is to let in the party called upon for an indemnity, to show that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged, or that he made an improvident bargain, and that the defendant might have obtained better terms, if the opportunity had been given him (c). But where premises were demised to the plaintiff, who covenanted to repair and subsequently underlet the premises in question to a person, who entered into a similar covenant with him to repair, and the original lessors brought an action against the plaintiff for non-repair, and recovered; it was held, that the plaintiff could not recover over from his lessee, as damages, the costs which he had incurred in defending the former action brought against him by his lessors (d).

Costs. The plaintiff is entitled to full costs, although the damages recovered be under 40s., unless the judge certify under the 43 Eliz. c. 6, s. 2, which he may do within a reasonable time after the trial (e), and before final judgment (f); whether a verdict has been given in the usual way or taken by consent (g); and the court will not interfere with his discretion (h). But now by the 129th section of the County Courts Act, 9 & 10 Vict. c. 95, it is enacted, that if

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(d) Walker v. Hatton, 10 M. & W. 249. He should, it seems, have suffered judgment by default. Smith v. Howell, supra. (e) Davis v. Cole, 6 M. & W. 624. (f) Lyons v. Hyman, 1 L. M. & P. 601. (g) Richardson v. Barnes, 4 Exch. 128. (h) Merrick v Wakley, 11 L. J., Q. B.

49.

any action shall be commenced in a superior court for a cause of action for which a plaint might have been entered in a county court, if a verdict shall be found for the defendant, he shall be entitled to his costs "as between attorney and client," unless the judge who shall try the cause shall certify, on the back of the record, that the action was fit to be brought in the superior court; and by the 11th and 12th sections of the County Courts Extension Act (13 & 14 Vict. c. 61), plaintiffs in actions of (inter alia) covenant recovering a sum not exceeding 207., are deprived of costs, except in the case of a judgment by default (i), or in case the judge or other presiding officer shall certify on the back of the record, that the cause was one which could not have been brought in a county court, or that there was sufficient reason for bringing it in the superior court, or (by the 15 & 16 Vict. c. 54, s. 4), the plaintiff make it appear to the satisfaction of the court or a judge that the superior courts had concurrent jurisdiction under the 9 & 10 Vict. c. 95, s. 128, or that the action had been removed from the county court by certiorari. See ante, p. 40.

Judgment. The judgment is for the recovery of the damages sustained (k). 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, the plaintiff having a good cause of action on one only; and there was a verdict for the plaintiff on both, and damages entirely assessed, it was held that the plaintiff could not have judgment (m). Covenant was brought against two defendants for not building a house; one suffered judgment by default, the other pleaded performance, which was found for him: it was held, that the plaintiff could not have a writ of inquiry or judgment against the 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 the plaintiff had not any cause of action (n).

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. Thus, where A. declared that B., before her intermarriage with C., covenanted with him to leave certain matters to arbitration, and to abide by the award, and then averred that after the making of the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay a certain sum; assigning for breach the non

(i) This is altered as to actions on contracts by 19 & 20 Vict. c. 108, s. 30. (k) Townesend, 2 Bk. Judg. 55.

(1) Barker v. Thorold, 1 Wms. Saund. 47. (m) Anon., Cro. Eliz. 685.

(n) Porter v. Harris, 1 Lev. 63.

payment of the sum so awarded; it was held, that, although the plaintiff could not recover, on the breach assigned, for the non-payment of the sum awarded, because by the marriage the authority of the arbitrator was countermanded, yet that as by the marriage B. had put it out of the power of the arbitrator to make an award binding upon her, her covenant to abide the award was broken, and judgment ought not to be arrested (o). But where the declaration stated that the defendant covenanted to abide by an award, but subsequently refused to pay the sum awarded, and the defendant pleaded that before the award he revoked the authority of the arbitrator, it was held that the defendant was entitled to judgment; and the case of Charnley v. Winstanley was distinguished, for in that case there was a good breach of covenant disclosed, though informally, in the plaintiff's declaration, whereas here it only appeared from the defendant's plea, that he had broken his covenant (p); and it is a general rule that the court can only give such judgment as the law requires upon the whole record, with respect to the cause of action there stated. It will not pick out of various parts of the record a different cause of action from that for which the plaintiff proceeds. Per Lord Denman, C. J.; Head

v. Baldrey, 6 A. & E. 469.

(0) Charnley v. Winstanley, 5 East, 266.