
    *Peter Smith vs. John Emery.
    In an action of covenant, where the covenant or agreement is the foundation of the action, and not merely matter of inducement, the declaration should contain a proferí in curia of the agreement set forth, or an excuse for the omission of it.
    The words of reference, “as by the said covenant and agreement, reference being thereunto had, may more fully appear,” inserted in the declaration, after the statement of the contents of the instrument, are no profort, nor sufficient to supply the want.
    The declaration in an action of covenant, should shew that the agreement on which it is founded, was originally sealed by the defendant, and remained under seal at the time of declaring or accounting for the omission of such averment. It is not sufficient to say,' “ and for the faithful performance of the said covenant and. agreement, the said parties did thereunto set their hands and affix their seals.”
    Where an instrument of writing is what is technically called an instrument inter partes, that is, expressed to be made between the parties who are named in it, as executing it, in such case, it is a settled rule, that although a covenant be expressed in the instrument for the benefit of a third person named in it, an action can be brought in the name of one of the parties only, and not in the name of such third person.
    Where a special request is not necessary to impose on the defendant the obligation to pay, nor to render him liable on his covenant, it is not necessary to be averred.
    In this case the plaintiff declared as follows :
    New Jersey, ss : Peter Smith complains of John Emery, being in custody, of a plea of breach of covenant, for that, whereas the said Peter, before and at the time of entering into the covenant and agreement hereinafter mentioned, was seized in his demesne as of fee, of and in the several hereditaments and premises in the said covenant and agreement mentioned, and thereby agreed to be conveyed, and being so seized thereof, heretofore, to wit, on the' twentieth day of September, in the year of our Lord one thousand eight hundred and twenty-four, at Flemington, in the county of Hunterdon, and within the jurisdiction of this court, in and by a covenant bearing date on the day and year aforesaid, it was covenanted and agreed by. and between the said Peter Smith and the said John Emery, that the said Peter had bargained and sold unto the said John, all that certain tract or parcel of land, situate, lying and being in the township of Lebanon, county of Hunterdon arid state of New Jersey, whereon John Reading then lived, adjoining lands of Henry Aller, esq., John Emery, John Vanfieet and others, *said to contain one hundred and twenty-three acres, be the same more or less, for the sum of fifteen hundred and seventy-five dollars, in four payments, to wit: the first payment to be made, that is, the sum of three hundred and ninety-sis dollars, to be paid on the first day of May, one thousand eight hundred and twenty-five, and the remaining sum to be divided into three equal payments, that is to say, the sum of three hundred and twenty-three dollars, to be paid the first day of May, A. D. one thousand eight hundred and twenty-six, the sum of three hundred and ninety-three dollars, to be paid the first day of May, A. D. one thousand eight hundred and twenty-seven; and the last payment, being the sum of three hundred and ninety-three dollars, to be paid the first day of May, A. D. one thousand eight hundred and twenty-eight; which said payments, when they should become due, were to be paid to David Eockafellar and Henry Aller, esq., executors of the estate of Jacob Eisler, deceased. When the first payment should become duo and paid, the said Peter covenanted and agreed to give a good title for the premises aforesaid, and when a certain mortgage upon the said premises in favor of the executors aforesaid, should be taken up and discharged by the aforesaid payment, then the said John covenanted and agreed to give his bonds to the said Peter, for the remainder of the money; and for the true and faithful performance of the said covenant and agreement, the said Peter and John, bound themselves, each to the other, in the penal sum of three thousand dollars. It was further provided in said covenant and agreement, that after the three first payments should he made, the fourth and last payment was to draw interest until paid; and for the faithful performance of the said covenant and agreement, the said parties did thereunto set their hands and affix their seals the day and year first above written, as by the said covenant and agreement, reference being thereto had, may more fully appear. And the said covenant and agreement being so made as aforesaid, ; afterwards, to wit: on the twentieth day of September, in the year aforesaid, at Flemington, in the county and within the jurisdiction aforesaid, in consideration that the said Peter had then and there undertaken and faithfully promised the said John to perform and fulfil all things therein contained, on the part and behalf *of the vendor to be performed and fulfilled, he, the said John, undertook, and then and there faithfully promised to perform and fulfill all things therein contained, on his part and-behalf to be performed and fulfilled, according to the true intent and meaning of the said covenant and agreement; and the said Peter in fact saith, that although afterwards, and within the time in and by the said covenant and agreement for that purpose expressed, to wit, on the first day of May, A. D. one thousand eight hundred and twenty-five, then next ensuing the date of the said covenant and agreement, to wit, at Elemington, in the county, and within the jurisdiction aforesaid, the said Peter did cause and procure to be prepared for execution, a good and sufficient conveyance in the law, well and sufficiently to grant and convey unto the said John, his heirs and assigns, the said .premises in the said covenant and agreement mentioned, and thereby covenanted and agreed to be conveyed; and although the said Peter then and there executed and sealed, and tendered and offered to deliver such good and sufficient conveyance in law, and requested the said John to pay to him, the said Peter, or to the said executors of the said Jacob Bisler aforesaid, the said sum of three hundred and ninety-six dollars, in the said covenant and agreement mentioned, yet the said John absolutely refused to make the payment of the said sum of three hundred and ninety-six dollars, so mentioned in the said covenant and agreement to be paid as aforesaid, or to accept the said good and sufficient conveyance so tendered as aforesaid, or any other conveyance in the law whatsoever ; and although the said Peter has well and faithfully performed and been ready and willing to perform all other things in the said covenant and agreement contained on his part and behalf to be performed and fulfilled, yet the said John, not regarding his said covenant and agreement, so by him made in that behalf as aforesaid, but contriving and fraudulently intending, craftily and subtilly to deceive and defraud the said Peter in this behalf, did not nor would, when the said grant and conveyance was tendered to the said John in manner aforesaid, nor at any other time whatsoever, pay, nor hath he as yet paid to the said David Rockafellar and Henry Aller, esq., executors as aforesaid, or either of them, nor to the said Peter, the said sum of three hundred and *ninety-six dollars, being the first payment as aforesaid, or any part thereof, although so to do the said John was requested by the said Peter afterwards, to wit, on the first day of May, one thousand eight hundred and twenty-five, and often thereafter, to wit, at Flemington, in the county and within the jurisdiction aforesaid, but he so to do hath hitherto wholly refused and still doth refuse; and so the said Peter in fact saith, that the said John, although often requested so to do, hath not kept his said covenant and agreement so by him made as aforesaid, but hath broken the same ; and to keep the same with the said Peter, hath hitherto wholly neglected and refused and still doth neglect and refuse, to "the damage of the said Peter, three thousand dollars, and thereupon he brings his suit, &c.
    To the above declaration there is a special demurrer by the defendant, and causes assigned, as follows, viz :
    1. That the said plaintiff in his said declaration hath not made a profert in court of the said covenant or agreement, whereon the said action is founded.
    2. That the plaintiff hath not made profert of the deed whereon the action is founded in due form, but hath merely referred to it as follows : “ as by the said covenant and agreement reference being thereunto had, will more fully appear,” without offering the same to the court.
    3. That the said plaintiff in his declaration hath not stated and set forth the covenants and agreements on which, the action is founded, directly, positively and affirmatively; but hath only set forth the same by way of reference as follows, to wit: “ As by the said covenant and agreement, reference being thereunto had will more fully appear.”
    4. That the plaintiff hath not stated in his said declaration, that the covenant or agreement, on which the said action is founded, was sealed with the seal of the said John Emery.
    5. That it does not appear in and by the said declaration, that by the said agreement as therein set forth, the said sums of money therein mentioned, were agreed to be paid to the said Peter Smith.
    6. That it is set forth and appears in the said declaration, that the said sums of money in the said agreement mentioned, *were not to be paid to the said Peter Smith, but were to be paid to other persons, namely to David Rockafellar and Henry Aller, esquires, executors of the estate of Jacob Risler, deceased.
    7. That the plaintiff in his said declaration hath not stated and set forth in due form a breach of the said covenant or agreement, in this, to wit: That he hath not set forth that the said John Emery, was ever requested by the said David Rockafellar and Henry Aller, esquires, or either of them, to> pay the said sum of money in the said agreement mentioned to them, or either of them, or that when so requested, he ever refused to pay the same to them or either of them.
    8. That the said plaintiff in his said declaration hath not stated or shewn, that the said Peter Smith had any authority from them the said David Rockafellar, and Henry Aller, esquires, or either of them, to demand or receive payment of the said sum of money, or any part thereof, from the said John Emery.
    To this there is a joinder in demurrer by the plaintiff.
    
      N. Saxton, for defendant.
    The 1st and 2d grounds of demurrer, are that the plaintiff has not made profert to the court, of the covenant on which the action is brought. 1 
      Chitty Pl. 349, (page in margin;) A profert is necessary. Note d. ib. 350. The want of profert is bad on special demurrer. Com. Dig. Plead. O1, P1; 3 T. R. 151. 161.
    3d. The covenant is not alleged positively and affirmatively, but only by way of reference. 1 Saund. 275, The King v. Sutton. 1 Plow. Com. 143, Browning v. Beston. 1 Archb. 52.
    4th. It is not alleged that the covenant was sealed. 1 Saund. 320, a. 8; 291, n.; 1 Chitty Pl. 116; Com. Dig. Plead. 2 V 2; ib. Cov. A 1. The word deed is a technical term, and implies a seal; but covenant is not so, and must always be shewn to be by deed or under seal.
    5 and 6. It appears the money was not payable to the plaintiff, but to third persons, who may themselves bring an action. 1 Chitty 5, n (to), contract with A, to pay B, &o. ib 4. A stranger may sue on a deed not inter partes, ib. 115; so on a deed poll. Com. Dig. Cov. A. 1; 2 Lev. 74; Lutw. 305.
    *7 and 8. The plaintiff has not set forth a sufficient breach. No request of Rockafellar and Aller, or refusal of defendant to pay them, or averment that they authorized plaintiff to demand it for them is alleged. The covenant to pay them, shews a reason existed why it ought not to be paid plaintiff, or be under his control. At all events, he ought not to be able to demand it and put it in his pocket; nor to recover damages for non-payment of the money, which, with all legal damages, (viz. the interest) is recoverable by others. 1 Chitty 236.
    
      Clark, for plaintiff.
    No precise form of words is necessary to constitute a profert of a deed. If it appear that it is brought into court, is sufficient.
    The ordinary words, “ Brings here into court,” are not indispensable, for all the books say, is “ That it is usual, &c.” Arch. Pl. 142; Chitty Pl. 349.
    
      When it is said in the declaration “As by the said covenant and agreement reference being thereunto had, may more fully appear,” &c., it contemplates a profert by the plaintiff and a reference to the court.
    In none of the precedents are both modes of expression made use of.
    In this case, the plaintiff had no right to the possession of the deed, it being deposited by the consent of the parties, with a third person. This fact could not legally be set forth in the declaration as an excuse for the profert. The plaintiff therefore by making profert, might have subjected himself to a non-suit. 1 Saund. 90. n. 1.
    The covenants between the parties are directly and positively set forth, concluding with a reference to the deed.
    It is stated in the declaration, that the “ said parties did thereunto set their hands and affix their seals.'”
    Admitting the facts stated by the defendant, it does not follow that the plaintiff may not take advantage of a failure on the part of the defendant to pay money to third persons as he covenanted to do.
    It was not necessary that the executors named in the declaration *should request payment of the defendant. In strictness they had no right to do so under the covenant.
    The covenant was made between the plaintiff and defendant alone, and not with these executors. The plaintiff’s right to demand and receive payment of the defendant, is derived from the deed of covenant and not from any concession by these executors.
   The Chief Justice

delivered the opinion of the court.

This action is in covenant by the vendor against the vendee, upon articles of agreement for the sale of certain real estate, the breach of which consists in the non-payment-of the first of several instalments of the purchase money.

Some of the causes assigned for demurrer are, in my opinion, fully sustained.

The declaration should have contained a proferí in curia of the agreement set forth, or an excuse for the omission of it. Com. Dig. tit. Plead. O. 1. The covenant or agreement is the foundation of the action; and not merely matter of inducement, as in Banfil v. Leigh, and the examples put by Comyns, when this technical offer of the deed is unnecessary. 8 D. and E. 571. Com. Dig. tit. Plead. O. 15. The words of reference, “ as by the said covenant and agreement reference being thereunto had may more fully appear,” inserted in the declaration after the statement of the contents of the instrument, are no proferí, nor sufficient to supply the want. They are frequently used when a proferí is made. 2 Chitty 191; Plead. Assist. 330.

The declaration should have shewn that the agreement on which it is founded, was originally sealed by the defendant, and remained under his seal at the time of declaring; or have accounted for the omission of such averment. It is not enough to say as is done hero, “ and for the faithful performance of the said covenant and agreement, the said parties did thereunto set their hands and affix their seals.” This language relates to time past, the execution of the instrument. The declaration should refer to time present and shew a subsisting covenant. The usual clause of the precedents is very expressive; “ which writing, sealed with the seal of the defendant, the said plaintiff now brings here.” There are not, in this declaration, words *of art, as deed or the like, necessarily importing a seal, and so used as to supply the omission. 1 Saund. 291, n 1; Van Santwood v. Sandford, 12 John. 197.

Some of the causes of demurrer are insuificioht.

The third cause of demurrer is, that the plaintiff has not set forth the covenants and agreements on which the action is founded directly, positively and affirmatively, but only by way of reference.

This objection does not appear to be supported in point of fact. The declaration, after reciting that the plaintiff was seized in fee of the premises, avers that in and by a covenant, bearing date on the day and year aforesaid, it was covenanted and agreed by and between the said Peter Smith and the said John Emery, that;” and the matters contained in the instrument of writing are then set forth, and a reference is afterwards made to the instrument as already mentioned. The covenants are, in the same manner introduced in approved precedents. 3 Chitty 313, ■“ It was agreed that,” &c., ibid. 317, “ It was witnessed that, &c., as by, &c.,” 1 Saund. 40, .“It was mutually covenanted that,” &c., Plead. Assist. 330. “It was agreed upon, &c., as by said articles, &c.”

The fifth and sixth assignments are, that it does not appear that the sums of money mentioned in the agreement were to be paid to the plaintiff; and that it does appear they were to be ppid to others, namely, David Rockafellar and Henry Aller, executors of Jacob Risler, deceased.

The agreement is between Smith, the vendor of the one part, and Emery, the vendee of the other part. The purchase money was to be paid in four annual instalmentsPart was to be paid to Rockafeller and Aller, executors of Risler, in discharge of a mortgage in their favor, upon the tract of land, the subject of the sale; the residue was to be paid to Smith, the vendor, and for it, Emery was to give his bonds. How much the mortgage money amounted to, whether a part or the whole of the first instalment or more, does not appear.

The instrument of writing set forth in this declaration is what is technically called an instrument inter partes, that is to say, it is'expressed to be made between certain parties, between *the persons who are named in it as executing it. In such case, it is a settled rule, that although a covenant be expressed in the instrument for the benefit of a third person named in it, an action can be brought in the name of one of the parties only, and not in the name of sueli third person. Scudamore v. Vandenstene, 2 Inst. 763; Storer v. Gordon, 3 M. and, S. 323; Barford v. Stuckey, 2 Brod. and Bingh. 333 ; Montague v. Smith, 13 Mass. 396; Story’s Abbott on Ship. 218. Hence the action on the present agreement, for the breach of its stipulations, was rightly brought in the name of Smith.

The breach assigned is, that the defendant did not pay the first payment or instalment “to the said David itoekafellar and Henry Aller, executors as aforesaid, or either of them, nor to the said Peter.” This breach is not well assigned, in so far as it alleges the non-payment to the plaintiff. The payments were, according to the agreement to be made to Rockafellar and Aller, the executors, until the mortgage which they held, should be satisfied, and until then, no payment was to be made to the vendor, Smith. Consequently, not paying the first instalment to him, was no breach,- unless the amount of that instalment‘ exceeded the mortgage money. And, therefore, to have shewn a sufficient breach in the non-payment of any part of that money to him, he should have averred, that the amount of the first instalment exceeded the amount due oil The mortgage to the executors, inasmuch as otherwise no part of that instalment was payable to him, and the non-payment, therefore, could not constitute a breach of the agreement.

Another cause of demurrer is, that the plaintiff has not set forth that the defendant was ever requested by the executors to pay to them or either of them.

A special request to pay, was not requisite either by the express or implied terms of the contract, antecedent to the commencement of the action. Such request was not necessary to impose on the defendant the obligation to pay, nor to render him liable on his covenant; and not being necessary to be made, it was, therefore, not necessary to be averred. If, however, even for the sake of form, a request is proper, the request to perform the covenant by him with whom it was made, as the defendant is here alleged to have been requested by the plaintiff, is sufficient]

*The last cause of demurrer is, that the declaration does not state that the plaintiff had any authority from the executors to demand or receive payment from the defendant.

The views already taken of the case, shew that such averment is not necessary.

The first, second and fourth causes assigned for demurrer, should, in our opinion, be allowed. The fifth and sixth also, so far as they respect the manner of assigning the breach. The third, seventh and eighth, are not tenable.  