
    Lyman Sibley versus Charles Brown et al.
    
    Debt on bond conditioned for the performance of the covenants of a lease ; plea, tho by mutual consent the contract in the lease was rescinded and the lease itself can-celled; replication, admitting those facts, but alleging a paroi agreement that the terms of the lease should continue in force and their performance be secured by the bond. Held, upon special demurrer, that the replication was bad, as being a departure, as being repugnant in itself, and as substituting a paroi contract for the covenants under seal, to which alone the bond referred.
    Debt on a bond dated the 1st of April, 1823, requiring that Brown should perform “ the conditions” contained in an indenture of lease, made on the' same day between him and the plaintiff; the declaration setting forth a covenant in the indenture to pay the plaintiff 240 dollars at the end of one year, and alleging a breach of that covenant. Plea, after oyer, that after the making of the bond and lease, and before any one of the covenants on the part of the lessee had been broken, viz. on the 10th of October, 1823, the contract respecting the rent and occupation of the leased premises was wholly rescinded, and the indenture, by the mutual consent of the parties, cancelled and destroyed. Replication, that Brown, on the 1st of April, 1823, entered under the lease, and held the premises until the 10th of October, when it was agreed between the plaintiff and the defendants that the lease should be cancelled, and that Brown should continue to hold the " premises upon the conditions contained in the lease, and that the bond should remain in force to secure the performance of those conditions, in the same manner as if the lease had not been cancelled ; and that Brown did continue so to hold until the term of one year was ended. Demurrer, assigning the following causes : — 1. That the replication is a departure, inasmuch as the declaration alleges, as the foundation of the, action, a breach of covenant in the non-payment of rent secured by a lease in writing under seal, which is admitted by the replication to have been cancelled, and the replication substitutes as the foundation of the action a subsequent paroi contract s — 2. That the replication is repugnant in itself, because it admits that the lease was cancelled, and at the same time alleges an agreement to give the same force to it as if it had not been cancelled: — 3. That the replication shows an attempt to enforce the performance of a paroi contract for use and occupation, in an action on a bond conditioned for the performance of covenants contained in an instrument of lease under seal, executed long before the paroi contract.
    
      Oct. 3d.
    
      April term 1827.
    
    
      Bottom and J. Davis junior supported the demurrer.
    
      Newton, contra,
    contended, that the replication was sufficient. The bond was not strictly for the performance of covenants, but of “ the conditions ” in the lease, that is, of the acts which were to be done by the lessee. The bond was independent of the lease, which was referred to only to show what acts were required to be performed. That might be shown under a paroi contract just as well as under the sealed instrument, and the substitution of the paroi contract merely effected a change in the evidence. Montague v. Smith, 13 Mass. R. 396; Baker v. Mair, 12 Mass. R. 121; Shed v. Peirce, 17 Mass. R. 623; Cary v. Prentiss. 7 Mass. R. 63; Phillips v. Bridge, 11 Mass. R. 242.
   Parker C. J.

delivered the opinion of the Court. In the argument of this case no authority was cited in support of the demurrer, and none that is very decisive in support of the replication demurred to. We must therefore grope our way in the dark, or with such light only as our extremely time will enable us to procure.

The action is debt upon a bond, and the condition of the bond is, that the covenants in a certain lease shall be performed by one of the obligors. The plea is, that by mutual consent the contract in the lease was rescinded, and the lease itself cancelled. In the replication this fact is confessed, and attempted to be avoided by the allegation of a paroi agreement between the parties to the lease and to the bond, that the terms of the lease should continue in force. To this replication there is a special demurrer, showing for cause, — 1. That the replication is a departure from the declaration, which sets forth particularly the covenants in the lease, and a non-performance in not paying the rent; — 2. That there is a repugnancy in admitting that the lease was cancelled, and affirming that it was, by agreement, to be kept in forcé ; — and 3. That it attempts to substitute a paroi contract for the covenants under seal, to which alone the bond referred.

Now we think that for all these causes the replication is bad. It is certainly a departure in the replication to show a contract of a different nature from that which is set up in the declaration. A departure in a replication is when it does not support the declaration. See Com. Dig. Pleader, F 7. Now the declaration setting forth a covenant under seal, and the replication a paroi bargain, the discrepancy is obvious.

There is also a repugnancy in stating the indenture to have been cancelled, and yet that by agreement it was to remain in force. Such an agreement, if made, must have been independent of the covenant.

The third cause is of a like nature with the others, and needs not be specially examined.

By the pleadings it should seem that assumpsit is the proper action for the rent, if any is due.*

Replication adjudged bad. 
      
       See 1 Chitty’s PI. (6th Amer. ed.) 681; Gould’s Pl. c. 2, § 30; c. 8, § 65 to 79; Tarleton v. Wells, 2 N. Hamp. R. 308; Andrus v. Waring, 20 Johns. R. 163; Wyman v. Mitchell, 1 Cowen, 319; Parish v. Stanton, 2 Root, 154; Carpenter v. Crane, 1 Root, 98; Warren v. Powers, 5 Connect. R. 373; Wolcott v. Dwight, 2 Day, 405; Henries v. Stiers, 3 Halsted, 364; Collins v Waggoner, 1 Breese, 26. Varying in an immaterial point is no departure Gould's Pl. c. 8, § 73, 74.
      A departure is fatal on demurrer. Joy v. Simpson, 2 N. Hamp. R. 180. Tarleton v. Wells, 2 N. Hamp. R. 308; Keay v. Goodwin, 16 Mass. R. 1, Gould’s Pl. c. 8, § 78; Sterns v. Patterson, 14 Johns. R. 132; Andrus v. Waring, 20 Johns. R. 263; but it is aided by verdict Gould’s Pl. c. 8, § 79.
     
      
       See Chitty’s Pl. (6th Amer. ed.) 265, 266.
     
      
       See Williams v. Sherman, 7 Wendell, 109.
     
      
       See ante, 128, n. 2.
     