
    
      *Maggort v. Hansbarger.
    July, 1837,
    Lewisburg.
    (Absent Cabell, J.)
    Pleading and Practice-Special Pleas — Allowance of— Presumption in Appellate Courts. — A special plea is offered, and tile plaintiff objects to its being iiled, but tbe ground of his obj’ection does not appear. The record only shews that the special plea was filed a year after the general issue had been pleaded. An appellate court cannot say that the plea was improperly received.
    Same — Same-Matter Provable under General Issue— flatter Ex Post Facto,  — A defendant is not Inhibited from pleading specially what he might give in evidence under the general issue, unless the matter pleaded amounts to the general issue, that, is to say, denies the allegations which the plaintiii is bound to pro ye. Where the cause of action is avoided by matter ex post facto, such matter may always be specially pleaded, whether it could be given in evidence under the general Issue or not.
    Same— Demurrer to Plea In Bar — Demurrer Overruled —Judgment.  — Where a plea in bar is to the whole declaration, and upon a demurrer the court Is ot opinion that the plea is sufficient, unless the plaintiff move for leave to withdraw his demurrer and reply, the demurrer will be overruled, and final judgment entered for the defendant.
    Landlord and Tenant — Lease— Interpretation — Rebuilding — A lease is made of a lot oí land with all the appurtenances thereunto belonging, tor four years, and the defendant agrees to pay the plaintiff 22 dollars a year, and at the expiration of the fonr years, to return the property to the plaintiff with all of its appurtenances. On the premises there were, at the time of the lease, a grist mill and carding machine, which during the term were consumed by fire, either accidentally, or by some unknown incendiary. Held, the contract, according to its fair meaning, could not be considered as binding the tenant to rebuild.
    Assumpsit in the circuit court of Rock-ingham, by John Maggort against Emanuel Hansbarger. The declaration contained four counts. The first, third and fourth set forth the contract alike. It was alleged in each of these counts, that on the 20th of February 1830, by a written contract not under seal, the plaintiff leased to the defendant a lot or parcel of land on Shenandoah river in the county of Rockingham, with alt the appurtenances thereunto belonging, and granted to the defendant the'*full and entire possession of the said lot with all the houses and machinery belonging thereto (the machinery consisting of a grist mill, a saw mill and a carding machine, and their appurtenances) and the use and profit arising therefrom, for the term of four years; that it was agreed the defendant should have the privilege of building and making any , improvements which should be necessary to keep the machinery in operation, and any other improvements that he might deem necessary to enhance the value of the lot; and that the defendant, in consideration of the premises, agreed to pay the plaintiff 22 dollars a year for each of the four years, and further agreed, at the expiration of the four years, to return the said property to the plaintiff with all of its appurtenances, the plaintiff first paying the defendant for all the improvements which he might have made on the premises during the term, except for repairs made to the saw mill, grist mill and carding machine, for which last mentioned repairs the plaintiff should not be bound to pay. The first count alleged, as breaches of the contract, that the defendant had not paid to the plaintiff the sum of 22 dollars a year for the four years, and had not returned to the plaintiff the said property with all its appurtenances, but had failed to do so in this, that he had not returned to the plaintiff the lot or parcel of land with the said grist mill and carding machine thereon, and their appurtenances, and had not returned the said lot or parcel of land to the plaintiff with any other grist mill or carding machine. The third count stated the breaches like the first; but after setting forth the contract, and before stating the breaches, contained an averment that there were no improvements made by the defendant on the premises during the term, for which the plaintiff by his contract was bound to pay any thing to the defendant. The fourth count averred that after the expiration of the four years, the plaintiff would have paid the defendant for all the improvements which he *had made on the premises during the term, and for which the defendant by his contract was entitled to receive any thing, but that the said defendant, after the expiration of the four years, discharged the plaintiff from paying for the same. The breaches were then stated as in the first count.
    The second count did not state the contract to be in writing, but in other respects set forth the contract like the first, as far as the statement that' the defendant had agreed to pay the plaintiff 22 dollars a year for each of the four years; and then, after so stating the agreement to pay the 22 dollars, it alleged that it was agreed that the defendant should not charge the plaintiff any interest, for the said four years, on the sum of 800 dollars, which was then due and owing by the plaintiff to the defendant, and for the securing of which the plaintiff had before that time executed, for the benefit of the defendant, a deed of trust upon the said lot with its appurtenances, and that the defendant, during the four years, should not exact, demand or receive of the plaintiff the said 800 dollars or anjr part thereof. The agreement to return the property with its appurtenances was stated as in the first count; and it was averred to have been agreed that the contract should by no means affect the said deed of trust which the defendant then held upon the property, in any shape or form, except that the defendant should not enforce the deed of trust until the expiration of the lease. The breaches alleged were, that the defendant had not paid the plaintiff the sum of 22 dollars a year for each of the four years; that the said defendant did, during the four years, demand and receive of the plaintiff the said 800 dollars, and by so doing charged the plaintiff interest on that sum, after the ■ — ■— day of —-, until the expiration of the four years, by reason whereof the defendant became liable to pay the plaintiff the amount of the said interest, upon the expiration of the four years; that the
    *defendant nevertheless had not paid the said interest; and that the defendant had not returned to the plaintiff the said property with all of its appurtenances, but had failed to do so, in the manner mentioned in the first count.
    The declaration having been filed at September rules 1834, the common order stood confirmed at the October rules; and the term of the court being in the same month, the defendant at that term pleaded the general issue. At October term 1835, the defendant filed a general demurrer to the whole declaration, and a general demurrer also to each count thereof, in which demurrers the plaintiff joined. The defendant also tendered two special pleas, which were objected to by the plaintiff’s counsel; but the court overruled the objection, and allowed them to be filed. By one, the defendant pleaded that after the several sums of 22 dollars fell due, and before the institution of this suit, he paid the same to the plaintiff. In the same plea he averred that the several written contracts mentioned in the different counts of the declaration were one and the same contract, and the several lots or parcels of land mentioned in the different counts were one and the same lot or parcel of land; and he pleaded that he did, at the expiration of the four years, return to the plaintiff the said lot or parcel of land with the appurtenances, except the grist mill, saw mill and carding machine, which, during the term, were accidentally consumed by fire. The plea contained a further averment that the sum of 800 dollars mentioned in the declaration was voluntarily paid by the plaintiff. The other special plea was like the first, except that in lieu of the words “accidentally consumed by fire,” were inserted these words, “by some incendiary unknown to the defendant, destroyed and consumed by means of fire.” To each of these special pleas the plaintiff demurred generally, and the defendant joined in the demurrers.
    *Upon argument of the demurrers, the circuit court overruled the demurrers to the declaration and to the several counts thereof; but it overruled also the plaintiff’s demurrers to the defendant’s special pleas, being of opinion that those pleas were sufficient to bar the plaintiff from maintaining his action. Final judgment was thereupon entered, that the plaintiff take nothing by his bill, and that the defendant recover against him his costs. To this judgment a supersedeas was allowed.
    Peyton, for plaintiff in error.
    Baldwin, for defendant in error.
    
      
      Presumptions on Appeal —See monographic note on "‘Appeal and Error" appended to Hill v. Salem, etc , Co., 1 Rob. 263.
    
    
      
      Pleading and Practice — Special Pleas- Matter Prov - able under General Issue — Matter Ex Post Facto. — On this point, the principal case was cited with approval in C. & O. R. Co. v. Rison, 99 Va. 33, 37 S. E. Rep. 320.
      The principal case was also cited in Harris v. Lewis. 5 W. Va. 677.
    
    
      
      Same Demurrer to Plea in Bar- Demurrer Cver ruled — Judgment.—See, citing principal case with approval, on this subject, C. & O. R. Co. v. Bank. 92 Va 498. 23 S. E. Rep 935. See also, 1 Va. Law Reg. 309.
      See generally, monographic note on “Demurrers" appended to (Join. v. Jackson. 2 Va. Cas. 501.
    
    
      
      Landlord and Tenant — Leases,—On this subject, see monograxxhic note on "Landlord and Tenant" appended to Mason v. Moyers, 2 Rob. 803.
    
   PARKER, J.

I shall first consider the last question raised in this case, because it goes to the foundation of the action, and is one of some interest.

The plaintiff in the court below alleges that he leased to the defendant a certain lot or parcel of land with all the appurtenances thereto belonging, consisting of a grist mill, a saw mill and a carding machine, with their appurtenances, for the term of four years; that the defendant should have the privilege of building or making any improvements necessary to keep the said machinery in operation; that in consideration thereof he had agreed to pay a certain rent, and at the expiration of the term, “to return the said property with all its appurtenances.” The grist mill, saw mill and carding machine were consumed (accidentally or by some unknown incendiary) by fire; and the question is whether, under the terms of this agreement, the defendant was bound to rebuild the premises, and return them as he received thetli. There is no covenant to repair, or to deliver the demised premises in good order, or in the same order as he received them; but simply a covenant or agreement to return the property with its appurtenances. It is therefore distinguishable from Ross v. Overton, 3 Call 309; S. C., 2 Hen. & Munf. 408; Bullock v. Dommitt, 6 *T. R. 650; Brecknock Navigation Company v. Pritchard, Id. 750; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. Rep. 238; Earl of Chesterfield v. Duke of Bolton, Com. Rep. 627, and from every other case that has been or can be cited. In all of them, there were express covenants to beep in repair during the term, or to deliver the property at the expiration thereof in good order or good tengntable repair, and not merely to deliver it with its appurtenances: and even where there were such express covenants to repair, it has seemed to some a strained and doubtful construction to extend them to the case of rebuilding. Ross v. Overton was considered at the time a doubtful case, although Ross had expressly covenanted to deliver the mill and other improvements 1‘at the expiration of the said term of seven years, in proper tenantable repair.” And in Pollard v. Shaaffer, 1 Dallas 210, it was held by M’Kean, C. J., delivering a learned and able opinion of the supreme court of Pennsylvania (which I do not mean, however, to be understood as approving or disapproving) that a covenant to repair, and to deliver the premises in good order and repair, did not bind the tenant to repair the premises, which had been wasted and destroyed by the british troops.

There are strong considerations that would render me averse to extending the doctrine of the tenant’s liability in any degree beyond the decided cases. Such a risque is scarcely ever contemplated by either party, and the tenant receives no premium for the insurance. Were he asked, at the time of making a contract and giving a fair rent for the property, “do you mean, if it is destroyed by fire or tempest, to rebuild or repair it?” he would be startled at the bare question: and the landlord himself, to the same enqiiiry, would unquestionably answer that he expected nothing so unreasonable. To 'bind him to something so unequal, and so contrary to the obligations imposed upon him by the common ■ law, I *think his covenant ought to be special and express, and so clear as to leave no doubt that he intended to take this duty or charge upon himself. Nothing should be left to vague inferences or doubtful construction.

Taking these principles as our guide (which might be sustained by many authorities, if any thing so reasonable required to be thus sustained) let us look at this agreement, as the plaintiff himself states it.

The tenant was not bound at any time to repair, although he had the privilege, at his own costs and charges, of building or making any improvements to keep the machinery in operation; and at the end of the term, he was to return the property with all its appurtenances. Is this any thing more than the usual covenant to be found in leases, to provide against the tenant’s holding over? If the agreement was simply to return the property, there could be no doubt about its meaning; but some difficulty seems to be produced by the expression “with all its appurtenances.” These I regard as mere words of form, generally used in all conveyances of land and in covenants relating to land, but importing no more than what the law would imply, to wit, that the lot, and every thing belonging to it, should, at the end of the term, be returned. It is plain to my mind that the parties did not, by the use of these words, intend to create a duty or charge of this onerous nature. It would be a strained construction to give them that meaning, when they admit another obvious interpretation, consonant to common usage. The lot and all its appurtenances, on the day limited for the surrender, are to be returned ; but as to losses by fire ur other accident, the burthen of them must be borne by him who has in clear and express terms contracted to bear them, or by him on whom the law imposes the obligation. In Harris v. Nicholas, 5 Munf. 483, the covenant was to return the slave well clothed on the 25th of December: and if the mere words had been regarded, *without looking to the intention of the parties, the defendant was bound to return him at all events, or pay his value. But the court said, that if the covenant stated in the declaration could be considered a covenant to return the negro in question, it ought not to be considered as a covenant to insure such return, in the event which had happened ; especially under the usage and understanding of this country in relation to the subject. So here, if the agreement is one to return the lot and all its appurtenances at any time existing, it ought not to be considered, under the usage and understanding of the country, as a contract of insurance, for which no premium or consideration has been paid. What the parties looked to was the return, in opposition to holding over, — -not to the hazards of fire or other casualty. I am therefore of opinion that the demurrers to the pleas ought not to have been sustained on this ground.

The other questions, which relate principally to the forms of pleading or to rules of practice, may be dispatched in fewer words.

The first objection is that the court ought not to have received the pleas at the time they were offered; first, because it was after the issue had been made up on the plea of non assumpsit; and secondly, because the matters alleged in them might have been given in evidence under the general issue. No exception to the court’s opinion is taken, so as to enable us to judge whether it exercised the sound discretion which it undoubtedly possesses, to admit or reject a special plea at any time before trial.

This court is bound to presume that the circumstances appearing to the court below, justified its admission of the pleas, unless the contrary is shewn. As to the other objection, I know of no rule which inhibits the party from pleading specialty what he might give in evidence under the general issue, unless the matter pleaded ^'amounts to the general issue, that is to say, denies the allegations which the plaintiff is bound to prove. But where the cause of action is avoided by matter ex post facto, it may always be specialty pleaded, whether it could be given in evidence under the general issue or not. Thus in an action of debt, the defendant may plead infancy and other matters specialty, as well as nil debet; and in assumpsit, may plead infancy, lunacy or coverture when the contract was made, or illegality of consideration, as usury or gaming, or that the contract was not in writing, and so void by the statute of frauds; although all these defences might be made under the general issue. 1 Chitty’s Pleading 557, 558, 559.

It is next ob jected that the pleas embrace several distinct and substantive facts; but as they make but one defence, and answer the whole declaration, it is enough: and besides, the irregularity could only be taken advantage of by special demurrer. They profess to set up a defence to all the written contracts stated in the several counts, averring the several written contracts to be the same; whereas, it is said, the contract set out in the second count is not declared on as a contract in writing. By intendment of law, the contract, being for a lease for four years, was a written one, and the defendant might treat it as such; and it was for the benefit of the lessor that he should so treat it. But in any event, this form of pleading contained no substantial defect, either in alleging the contracts to be the same, or that they were in writing; and it would only be objectionable on special demurrer. 1 Chitty’s Pleading 587; 3 Id. 1104, in notis. The pleas answer all the matter stated in the second count, and all and something more than the matters contained in the other counts. They are to be taken distributively, as pleas to each count; and in respect to the first, third and fourth counts, they contain matter which is mere surplusage.

*Again, it is said the pleas do not aver the payment of the rent and interest, but simply of the rent itself. The declaration avers the nonpayment of the 22 dollars a year for four years, and the defendant says he paid it. If the declaration claims interest by this general averment, the defendant says he has paid interest, for he uses the same general terms; and this is sufficient, without considering the effect of the act of assembly which declares that interest shall hereafter be allowed on rent in arrear.

As to the lessor’s payment of the 800 dollars he was allowed to retain without interest until the end of the term, as a part of the consideration of the lease, it being a voluntary payment, I do not see how the defendant was bound, either in law or morals, to constitute himself a borrower, and pay interest for the loan. If he had subsequently expressly promised to pay this, interest, as Willing did the released debt, in the case of Willing v. Peters, 12 Serg. & Rawle 177, the previous contract to suffer the principal sum to remain in the lessor’s hands without interest, as a part of the rent, might have been a sufficient consideration, and have made the promise binding: but on that point it is not necessary to express an opinion. Besides, the breach alleged in the declaration is for demanding and receiving the 800 dollars, which the plaintiff says was in effect charging him' with interest: to which the allegation of a' voluntary payment seems to be a sufficient answer.

The remaining objection is that the court, upon overruling the demurrers, ought not to have given a peremptory judgment. The plaintiff did not ask for permission to withdraw his demurrers.. He chose to abide' by them; and the pleas offering a substantial defence, the court had no other alternative than to give judgment for the defendant. Stephen on Pleading 176, 177.

Por these reasons, I am for affirming the judgment.

The other judges concurring, judgment affirmed.  