
    William Wait versus Sylvester Maxwell, Administrator &c. of Abel Wilder.
    
      Sept. 30th.
    
    In an action of covenant on the covenants of seisin, right to convey, and freedom from incumbrances, the breaches were set out in the words of the covenants, and the defendant pleaded that he was seised in fee and had good right to convey, concluding to the country Held, that this conclusion was proper, and that as the breach of the covenant against incumbrances was not well assigned, no incumbrance being specified, the defendant was not obliged to notice it in his plea.
    The plaintiff declares in covenant broken, for that Wilder, by deed, bargained and sold to him in fee, a parcel of land, and covenanted that he (Wilder) was seised in fee of the land, and that he had good right to convey the same, and that the same was free of all incumbrances ; whereas he was not seised in fee, nor had he good right to convey, “ nor could the plaintiff by force of said deed lawfully possess and enjoy the land free of all incumbrances according to the said Wilder’s covenant aforesaid.” The defendant pleads that Wilder “ was seised in fee of the land &c., and had good right and lawful authority to convey the same as aforesaid, and so has not broken his covenant in manner and form as the plaintiff in his declaration has alleged, and thereof puts himself on the country.” The plaintiff demurs specially, because the plea answers only two of the breaches assigned, and because it concludes to the country.
    Wells, in support of the demurrer,
    contended that the breaches were well assigned in the words of the covenants. There can be no question of this, unless in regard to the covenant against incumbrances. If that breach is ill assigned, the defendant could take advantage of the defect only on special demurrer ; it is cured by verdict or general demurrer. Com. Dig. Pleader, C, 47, 48, 2 V, 3; 2 Saund. 380; Fowle v. Welsh, 1 Barn. & Cressw. 29; Sedgwick v. Hollenback, 7 Johns. R. 376. It is apprehended, however, that even on special demurrer the breach is well assigned, notwithstanding the dictum to the contrary in Marston v. Hobbs, 2 Mass. R. 433; which seems to be founded on a mistake, in considering the covenant against incumbrances as similar to a covenant for quiet enjoyment.
    
      
      April term 1827, at Greenfield
    
    
      E. H. Mills and Ashmun, contra,
    
    to show that no particular incumbrance being set forth, the assignment of the breach was ill, cited Marston v. Hobbs, 2 Mass. R. 433; Bickford v. Page, ibid. 461; 1 Chit. Pl. 328; and this defect would be fatal after verdict. 1 Chit. Pl. 332. It was necessary to plead to those breaches only which were well assigned, and the plea operates as a demurrer to the other.
    
      Wells, in reply. The defendant ought to have pleaded to the two first breaches and demurred to the last. Com. Dig Pleader, 2 V, 3, cites 1 Saund. 108; Coleman v. Sherwin, 1 Salk. 137. His plea professes to be an answer to the whole declaration, but in truth is an answer to part only , the plaintiff was therefore obliged to demur. If he had gone to issue, it would have been a discontinuance. 1 Chit. Pl. 509, 510.
    On the subject of discontinuance, Mills referred to Sterling v. Sherwood, 20 Johns. R. 204.
   The opinion of the Court was read as drawn up by

Parker C. J.

The last cause of demurrer is manifestly mistaken, for there is a direct affirmation and denial between the declaration and the plea, so that it was proper to tender an issue to the country.

And with respect to the other cause, it is clearly unsupported. If three breaches had been well assigned, no doubt the plea would be bad, as it does not answer all; but we think it clear that the breach in relation to the incumbrances is not well assigned, and therefore needed not to be noticed in the plea. A general assignment of a breach, such as negativing the words of the covenant, is proper where such general assignment shows clearly that there is a breach ; as in the covenant of seisin and of a right to sell, denying the seisin and the right to sell, of itself shows a breach. 3But in relation to covenants respecting quiet enjoyment, warranty, and incumbrances, the law is otherwise, because a mere denial does not necessarily show a breach; 2for there may be disturbances or incumbrances which are not covered by such covenants, and therefore the manner in which the plaintiff was disturbed or the land incumbered, must be stated, in order that the Court may see that there has been a breach. And so it is laid down in the case of Marston v. Hobbs, and the position is fully supported by Com. Dig. Pleader, C, 45, 49

Plea adjudged good. 
      
       In assigning breaches in actions of covenant, in general it is sufficient to follow and negative the words of the instrument declared on. M'Geehan v. M'Laughlin, 1 Hall, 33. See 4 Kent’s Comm. (3ded.) 479.
     
      
       See Platt on Covenants, 308, 311. (Law Libr. No. 7, p. 308, 311), Rickert v. Snyder 9 Wendell, 421; Sedgwick v. Hollenback, 7 T. R. 367.
     
      
       See 2 Wms’s Saund. 381 a, note; 1 Chitty on Pl. (6th Amer. ed.) 368 2 Stark. Ev. (5th Amer. ed.) 249, notes; Mitchell v. Warner, 5 Connect. R 497; Watkeys v. Delancey, 4 Doug. 354; Warn v. Bickford, 7 Price, 550.
     