
    Robert and Samuel Terrell v. Page’s Administrator.
    Monday, October 24, 1808.
    Pleading and Pracliee — Repleader.—It is a good ground for arresting 'judgment ana awarding a repleader after a general verdict for the plaintiff, that there were two counts in the declaration; the one, beginning in covenant, and concluding in case: and, the other, entirely in case. To which, the defendant pleaded only, “that he had not broken the covenants.”
    This was an appeal from a judgment of the District Court of Fredericksburg.
    Robert and Samuel Terrell brought an action of covenant upon a written agreement, but not under seal,  between Mann Page, of the one 'part, and Robert and Samuel Terrell, of the other, (as mentioned in the deed,) but signed only by Mann Page and Samuel Terrell, whereby ‘ ‘Page did bind himself to let and grant unto the said R. and S. T. a lease of his mill, to have and to hold the same from one to three years, as they may chuse“and further did bind himself to keep the said mill in good order during the above mentioned lease. ” And the plaintiffs say that, under the agreement aforesaid, they were possessed of the said mill for one year, and fully complied with every part of the aforesaid agreement, but that the defendant did not comply therewith on his part, for that the dam was broke by a violent flood of rain, and the defendant, although requested to repair it, had refused so to do, and the plaintiffs were obliged to do it, at the expense of 4S1. whereby he became liable to pay the same to them, and assumed to pay the same, when thereto required. Then there follows a count for money laid out and expended to the defendant’s use, which he assumed to pay. Nevertheless, not regarding his promises and- undertakings so made as aforesaid, he had refused to pay the
    plaintiffs, &c. The defendant, after taking oyer of the agreement, pleads, “that he hath not broken 'his covenant in manner and form as the plaintiff hath complained, and thereupon issue is joined.” The Jury found a verdict for the plaintiffs in these words: “We, of the Jury, find for the plaintiffs, in damages, 601. 6s. lOd.” The County Court gave judgment for the damages so assessed; but on an appeal, taken by Page, to the District Court of Fredericksburg, the judgment was reversed, and the cause remanded to the County Court, for an issue to be made up, and tried between the parties on the second count; the judgment, on the first count being, in the opinion of the Court, erroneous, and there being no issue joined on the second count. Prom this judgment, the Terrells appealed to this Court..
    Williams, for the- appellant. The first count in the declaration, though it begins in covenant, is essentially in assumpsit. It charges that the plaintiffs paid so much money for the repairs of a mill, which, by the terms of the contract, the defendant was bound to repair, and which he failed to do. In consideration of which, the defendant assumed to repay the amount. The second count is also indebitatus assumpsit.
    The plea is substantially to the action ; and, according to all the authorities, if there be an issue, although it be not an apt one, it is aided by verdict; as not guilty, in an action of assumpsit, 
    
    So, in assumpsit, upon several promises, the defendant pleaded, “that he had performed all things on his part to be performed,” and it was held to amount to the general issue, 
    
    It is a rule in pleading, that when the defendant pleads a bad plea, which is found against him, the plaintiff may *have judgment, either for the insufficiency or falsity of the plea.
    
    If the above positions be correct, then the judgment of the County Court, though not formal, is substantially right: 1. Because the plea professes, and is in fact an answer to the whole declaration. 2. Because the issue was merely an informal one, and, having been found for the plaintiff, he shall have judgment.
    But, even if the first Count be faulty, yet the second is clearly good; and the Jury having found for the plaintiff, on the whole question submitted to them, on the merits, the judgment of the County Court ought to-be sustained.
    Botts, for the appellee. The first count in the declaration is incurably bad. It is in covenant upon a simple contract. The writing on which the defendant was charged, is merely recited in haec verba, a mode of pleading condemned by this Court in Cooke v. Sims,  The paper is not averred to have been signed or delivered by Page; and, it would seem, on its face, never to have been perfected; for it is only signed by two out of three contracting parties. The breach is not one fitted to the agreement to execute a lease, but it would do for a breach to an ordinary covenant in a lease. The paper in the record imports no lease in itself. It could not create a tenancy. It was a mere project of an agreement to execute a lease. Even the commencement *of the tenancy, and the election of the plaintiffs to take the tenement for one or three years, was left to be fixed by the lease. To suppose that the tenancy was created without the lease, would be to do violence to the plain words of the writing, and to do injustice between the parties. The cases in eject-ments where the distinction has been taken between an agreement to lease, and a writing containing words of present demise, are decisive on the law of this point. The injustice would consist in surprising the landlord with a premature’ tenancy, in which one only of two joint-tenants would be bound in the agreements on their parts to be performed. The declaration avers that, under the agreement, the plaintiffs were possessed for one year. If the agreement was merely inchoate, and there were in it no words of present demise, the plaintiffs could not be possessed under it. 'The declaration does not aver that the injury to the dam happened within the year of the plaintiff’s possession. This is a defect in the plaintiff’s case, and not in the mode of setting it out. The injury to the dam was not provided for by the agreement. The Court might be wearied with further objections to the first count, but enough have been enumerated.
    Proving the first count to be bad would sustain the verdict on the second, if there was any issue on it.
    The defendant craved oyer of the covenants, and pleaded he had not broken his covenants. It is only by a perversion of all sense and language, that this can be turned into non-assumpsit. It is to contend that a plea of any thing is a plea to every thing.
    There are cases in which not guilty in debt or assumpsit, is cured by verdict; but in these the parties appeared to have gone to trial on the merits, and there were no counts to which not guilty could be intended to apply, except the counts in debt or as-sumpsit. By necessary intendment, therefore, to support the justice of the case, and to avoid the total uselessness of the plea, the Court will apply it to the declaration. But if not guilty were pleaded in a suit where assumpsit and tort were joined, the plea would have *its natural and useful effect by being confined to the tort; and, in such case, the Court would not apply it to both counts.
    In the case at bar, the plea is not, in short, “not guilty,” but it is, that the defendant had not broken the covenants. It is obvious that this was intended for the first count alone, and that the verdict was upon the issue formed on it. The plea to the covenant was to be imputed to the plaintiff, whose complaint was in covenant. It would be as unjust, as it would be absurd, to make, by legal legerdemain, an issue that never entered into the minds of the parties, nor was heard of by the Jury.
    Wednesday, October 26. The Judges gave their opinions.
    
      
      The principal case is cited in foot-notes to Kppes v. Demoville, 3 Call 23, and Dudley v. Jfistill, 6 Leigh 563.
    
    
      
       See 2 Stra. 814, Moore v. Jones; 2 Lora Raym. 1536, S. O.
    
    
      
       Cro. Eliz. 470, Corbyn v. Brown; Cro. Jac. 576, Jouce v. Parker. &c.; Lev. 142, Elrington v. Doshant; 1 Stra. 574, Robinson v. Green; 2 Stra. 1022, Mar-shamv. Gibbs; 1 Hen. & Munf. 153, Hunnicutt and otters r. Carsley.
    
    
      
       2 Lord Raym. 968; Taylor v. Sea, 1 Salk. 394, S. C. under the name of Sea v. Taylor.
    
    
      
       1 Bac. Abr. Gwil. edit. 164, in notes, let. (E.) 4, cites 1 Sid. 289; Walsingham v. Combe, 1 Lev. 183, S. C.
      
    
    
      
       2 Call, 39, and Hord v. Dishman, 2 Hen. & Munf. 595.
    
    
      
       Quaere, whether the authorities cited by-Bacon, support the general position advanced in the text. The case of Walsingham v. Combe, (l Sid. 289, and 1 Lev. 183,) merely proves that an informal issue is cured by verdict, but not an immaterial one; and the distinction between these issues is well explained in 1 Lev. 32, Serjeant v. Fairfax. The other cases cited by Bacon, as establishing the same point, viz. Moor, 399, Hide v. Dean and Canons of Windsor, Cro. Eliz. 457, S. C. and 2 Leon, 116, Gray and Constable’s case, seem as little applicable. It is to be regretted that a book in such general use as Bacon’s Abridgment, and one deservedly held in such high estimation by the profession, should abound in so many errors, both as to reference and-doctrine. Some future editor, we may hope, will see the propriety of examining all the references, and not content himself with merely copying the errors of his predecessor. — Note in Original Edition.
    
   JUDGE TUCKER,

having stated the case as above, proceeded.

Here are two counts in this declaration ; the one begins in covenant, and concludes in case; the second is altogether in case. There is but one plea, and that is to the count which begins in covenant, leaving the other count unanswered.

Upon a view of this agreement, it appears not to be a lease in itself, nor even a demise, but an agreement to make a lease with certain covenants and conditions therein, The only breach capable of being assigned upon this agreement, (to which Samuel Terrell only, and not Robert and Samuel, is a party,) would be, that the defendant refused to make a lease pursuant thereto; and as Robert Terrell, though named, is not, in fact, a party to this agreement, no action can be sustained by him upon it. I am, therefore, of opinion, that judgment ought to be arrested upon the first count; and that upon the second count, there being no non pros entered by the plaintiff, the cause ought to be sent back for further proceedings to be had upon that count, agreeably to the decision in Cooke v. Simms,

JUDGE ROANE

was of opinion, that the judgment of the District Court was perfectly correct, and ought to be affirmed.

JUDGE FLEMING

concurred.

By the whole Court, (absent JUDGE LYONS,) the judgment of the District Court affirmed, and the cause remanded for further proceedings. 
      
       See 2 Call. 34. the opinion of Jiroe* Lyons.
     
      
      Id) See Esp. N. P. 246, 3d edit.
     
      
       2 Call, 39.
     
      
      Executors and Administrators — Persona! judgment. —The principal case is cited in foot-note to Pugh v. Jones, 6 Leigh 299; foot-note to Wills v. Dunn, 5 Gratt. 884; Jones v. Reid, 12 W. Va. 370.
      Same — Devastavit — Declaration. — In devastavit against an exeentor, the plaintiff may declare in and detinet both; yet if he declares in detinet only, it is not bad, but he shall only have judgment de bonis testatoris. Bailey v. Beckwith, 7 Leigh 607, citine Spotswood ¶. Price, 3 lien. & M. 123.
      See monographic mofe on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
     