
    
      Alexander Rantin v. Alexander Robertson. Same v. Same.
    
    A covenant for quiet enjoyment does not stipulate against the unlawful act of' another in disturbing it. The rale is, that a breach is bad if it do not show an interruption by title.
    An indenture of Apprenticeship stipulating that l!A. by his attorney B. hath put his negro slave C. as an apprentice to D.” &c. and signed “B — (L. S.)i Agent of A” — was held to be the deed of A. and not of B. It was also held, that the question had been properly brought up upon demurrer.
    Whenever it appears f?on\ the declaration, that the wrong parties have sued, or> that the party suing has no right in law to sue, the defendant may demur; the-defendant may also demur, if an objection appear on the pleadings, as to his-own liability.
    
    Where profert of a deed is made, and required to be made, oyer of it piakes the. same part of the plaintiff’s count, and for die purposes of pleading; it becomes the same thing as if set out in the declaration in hoc verba.
    
    
      Before Butler, J. at Charleston, Spring Term, 1846..
    FIRST CASE.
    
      Declaration in Covenant for the Apprenticeship of a servant by the name of Augustus.
    
    On a deed of Indenture hereunto annexed, the defendant filed a general demurrer. The Circuit Judge did not doubt that it was the intention of the parties,, that the deed should have been the legal obligation of W. A. Alston, instead of Alexander Robertson, the Agent. But by a strict legal construction, he could not so regard it. Whilst he regarded it as Robertson’s covenant, according to its legal import he toould not extend its provisions beyond ihe literal_ terms. By these the parties bound themselves only “each unto the other." That is, Robertson bound himself to Rantin for the quiet enjoyment of the possession and service of the servant, but he did not subject himself in terms to any liability for the acts of any body else. It was not alleged, that Robertson the defendant, had in any wise interfered with the control or custody of the said servant, but the allegation was, “that the negro slave named Augustus, was unlaiofully taken, removed, and withdrawn from the 'custody and service of the said Plaintiff, by the said W. A. Alston, on the 16th day 'of January." He did not think that it was a breach of the literal terms of the covenant on the part the Defendant, and therefore awarded judgment to him on his demurrer.
    “This indenture witnesseth, that Alexander Robertson, agent of WilJjmu^AjUston, hath put hiNservlTnt Augustus tan apprentice tinto Alexander Rantin, House Carpenter, to learn his Art, Trade and Mystery, and after the manner of an Apprentice to serve the said Alexander Rantin from the date hereof, for and during and, unto the end and term of eight years, next ensuing. During all which term, the said Apprentice his said master faithfully shall serve, his secrets keep, his lawful commands every where readily obey; he shall do no damage to his said master nor see it done by others, without letting or giving notice thereof to his said master; he shall not waste his Goods, nor lend them unlawfully to any; nor contract Matrimony within the said term. At Cards, Dice, or any unlawful Game he shall not play, whereby his said master may have damage. With his own goods, or the goods of others, without license fsom his said master, — he shall neither buy nor sell ; he shall not absent himself day nor night from his said master’s service, without his leave; nof haunt Ale-Houses, Taverns, or Play-Houses,; but in all things behave himself as a faithful apprentice ought to do, during the said term. And the said master shall use the utmost of his endeavour to teach, or cause to be taught, or instructed, the said ap-« prentice in the Trade or mystery of a House ' Carpenter, "and procure and provide for him sufficient meat, drink, working clothes, lodging and washing, fitting for au apprentice, during the said term of eight years.
    And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves, each unto the other, firmly by these presents.
    IN WITNESS whereof.\ the said parties have interchangeably set their Hands and Seals hereunto. Dated the eighteenth day of February, in the year of our Lord one thousand eight hundred and forty-one, and in the sixty-fifth year of the Sovereignty and Independence of the United States of America.
    
    It is understood that if Alexander Rantin dies, or gives up business, this contract is cancelled.-
    ALEX. ROBERTSON, (L. S.)
    Agent of William A. Alston.
    E. W. BONETHEAU, (L. S.)
    ALEX. RANTIN, (L. S.)
    A motion was made to reverse the judgment, sustaining the demurer, on the ground, That the deed was the deed of the defendant — the covenant was that the negro slave Augustus should remain for eight years with the plaintiff — - that the negro was named in the deed as the slave of W. A'.^AlstohV.-Etnd -not as the property of the defendant. And the -obligatidp,- therefore, of the deed must be held to embrace not only th.é acts of Alexander Robertson, but acts also' of, eve.íy -ótíiér person who might have authority to' interfere. That'the defendant, W. A. Alston, removing the negro, was siich ¿ denial of the authority of the defendant, aS-would make him liable. And that he should have been held as well liable for those acts of W. A. Alston, which went to annul the effect of the deed, as if such acts were done by himself.
    A. G. Magrath, for the motion.
    
    Petigru, contra.
    
    
      SECOND CASE.
    This was also an action of covenant on the deed here--ynto annexed.
    Defence a general demurrer lo the declaration.
    The Circuit Judge was of opinion that the indenture declared on (respecting the servant Lewis,) was the deed ■ of Win. A. Alston, and that the action could not be maintained on it as the deed of Alexander Robertson.
    He therefore awarded judgment to the defendant on his demurrer.
    “This Indenture Witnesseth, That Wm. A. Alston, Esq., by his attorney, Alexander .RoberWOiT. Lailr put Iris negro slave Lewis, as an apprentice unto Alexander Rantin, House Carpenter, to learn the Art, Trade and Mystery, and after the manner of an apprentice, to serve the said Alexander Rantin, from the date hereof, for and during and unto the end and term ot seven years next ensuing. During t^ll which term, the said apprentice, the said Alexander Rantin faithfully shall serve, his secrets keep, his lawful commands every where readily obey: He shall do no damage to the said Alexander Rantin, nor see it done by others, without letting or giving notice thereof to the said Alexander Rantin. He shall not waste his goods, nor lend them unlawfully to any, nor contract matrimony within the said term. At cards, dice, or any unlawful game, he shall not play, whereby the said may have damage. With 'his own goqd^nS^fe^^m^s of others, without licence from the said®^fflaerRa™m^' he shall neither buy nor sell; he shall W day nor night, from the said A1 exanclcsS'wi without his leave, nor haunt Ale-Hous®, taverns or plavi-i houses, but in all things behave himsel^MJilMmrf' for-J prentice ought to do, during the said tertm^^^^^ePgai'd" Alexander Rantin shall use the utmost of his encmavor to teach, or cause to be taught, or instructed, the said apprentice in the trade or mystery of a House Carpenter, and procure and provide for him sufficient meat, drink, clothing, lodging and washing fitting for an apprentice, during the said term of seven years, from the twenty-ninth day of June, one thousand eight hundred and thirty-eight, to the twenty-ninth of June, one thousand eight hundred and forty-five. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves, each unto the other, firmly by these presents.
    In Witness Whereof, the said parties have interchangeably set their Hands and Seals hereunto. Dated the twenty-ninth day of June, in the year of our Lord one thousand eight hundred, and thirty-eight, and in the sixty-second year of the sovereignty and Independence of the United States of America.
    
    ALEX. ROBERTSON, (L. S.)
    Agent of W. A. Alston.
    ALEX. RANTIN, (L. S.)
    SIGNED, SEALED AND DELIVERED )
    IN THE PRESENCE OF $
    JAS. C. NORRIS, N. P. <Sc Q.. U. (L. S.)
    A motion was made to reverse the judgment, sustaining the demurrer, on the ground,
    That the deed declared on, was the deed of Alexander Robertson, and not the deed of W. A. Alston. And that it was properly declared on as the deed of Alexander Robertson.
    A. G. Magrath, for the motion.
    
    Petigru, contra.
    
   Withers, J.

delivered the opinion of the Court,

, In the first of these cases no doubt is entertained that I the defendant has incurred a personal liability, for the le- | gal import of the covenant by which he bound Augustus, | the servant of W. A. Alston, to Rantin, attaches the obligations of that instrument to the defendant personally, in as 'much as he contracts in the name of “Alexander Robertson, agent of William A. Alston.” There is no question made upon that, but the defendant has demurred because an insufficient breach has been assigned. That breach is set forth thus by the plaintiff: “That the negro slave, named Augustus, was unlawfully taken, removed, and withdrawn, from the custody and service of the said plaintiff, by the said W. A. Alston,” on a1 day stated. Is this a breach in contemplation of law, of Robertson’s covenant, that he “hath put ” (Augustus) “an apprentice unto Alexander Rantin, from the date hereof for and during and unto the end and term of eight years next ensuing, during all which term, the said apprentice his said master faithfully shall serve,” dfcc. It is to be observed that the act by which the plaintiff ailedges he has been dispossessed is stated to have been unlawful. It was therefore a trespass. Now a covenant for quiet enjoyment does not .stipulate against the unlawful act of another in disturbing it. It is enough if the breach be assigned in words which contain the sense and substance of the covenant, as that the defendant warranted the debt of A. and the breach be that he did not pay, for that is the sense of the promise; or if the covenant be that plaintiff and his wife should enjoy, and the breach, that the husband was ousted, for he had the entire possession; and so of matty like instances. But it cannot-be the sense of a warrantry, or covenant for quiet enjoyment, any more in such a case as this than in regard to really, that a breach shall arise from a trespass by any one.

The rule is that a breach is bad if it do not show an interruption by title. Many instances, fully illustrative of the doctrine, may be found collected in the treaties of Mansel on Demurrer, at marginal pages, 49-50.

There seems little force in the idea that the terms of the covenant “his servant Augustus” recognize the property of the apprentice to have been in W. A. Alston, who has dispossessed the plaintiff. There might have been something in this view, if the instrument sued upon had been a covenant against the act of this particular person.- There is no ground, however, to hold the stipulation otherwise than general, and the word “ unlawful” leaves no room to infer that the disturbance of possession was otherwise than tortious.

We are then conducted to the conclusion that there was no sufficient breach alledged, and hence that the demurrer was properly sustained.

The other case between the same parties, also comes up upon demurrer. The instrument declared upon was likewise an indenture of apprenticeship, stipulating thus: “That William A. Alston, by his attorney Alexander Robertson, hath put his negro slave, Lewis, as an apprentice to Alexander Rantin” (fee., signed, “Alexander Robertson [L. S.J Agent of W. A. Alston.” The demurrer brought up the question whether this was the deed of Robertson or of Alston. The Circuit Judge held the instrument to be the deed of Alston, and we think he was correct. For this judgment the case of Varnum, Fuller & Co. v. Evans, (2 McM. p. 409) is authority enough. In words the covenant before us purports to be that of Alston. The only question suggested is, whether the point can be presented upon demurrer, or should become an enquiry of fact before the jury. No reason occurs to me to show that the question might not arise in either way; it would seem necessarily to present an issue for the jury where the plaintiff attempting to enforce such a contract as that now before us, alledges in his declaration, that notwithstanding its legal import, yet that the defendant had not authority to bind the person mentioned as principal, or had exceeded his authority. If such allegation had been made in the present case, the defendant would have been driven, 1 suppose, to the jury. — ■ But the case is presumed to stand thus: The plaintiff declares on a paper, purporting to be the contract of Alston, as the act and deed of Robertson. He assigns no reason why its legal operation is different from that which appears upon its face. Priffia facie, therefore, it was Alston’s deed and not the defendant’s; and why should not this be cause of demurrer? It maybe taken as a general rule that wherever it appears from the declaration that the wrong parties have sued, or that the party sueing has no right in law to sue, the defendant may demur ; so may the defendant if an objection appear on the pleadings as to his own liability, because in effect the demurrer, when general, puts in issue the law of the case and refers it to the court for determination. Mansel on Demurrer, p. 5, citing 5 Mod. 132: Co. Litt. 71 b. If there be two parties liable on an indenture, and one be dead, his death ought to be averred in the declaration, or demurrer lies. With equal reason it must apply where the party sued is not liable at all, as Robertson is not in the present case, so for as the pleadings develop the case to us. Of course, where profert of the deed is made, and required to be made, oyer of it makes the same part of the plaintiff’s count, and for the purposes of pleading it becomes the same thing as if set out in the declaration in hcec verba. We think the general demurrer in this case was also properly sustained, and the motions in both cases are refused. •

O’Neall, J. Evans, J. and Frost, J. concurred.

Wardlaw, J.

dissenting. If the defendant (as he might have done) has really after demand of oyer set out the whole writing obligatory, before he demurred, then the whole writing is to be considered a part of the declaration, and we have a paper which seems upon its face to be the deed of Alston, alleged to be the deed of Robertson. According to the opinion of this Court in the case of Eddins v. Brown (1 Rich. p. 255,) if Robertson had not authority to bind Alston, the deed is Robertson’s own. Can the Court upon demurrer, when the allegation is that the deed was sealed with the seal of Robertson, assume that Robertson had the authority which would contradict the allegation? I think not. In the case of Say v. Ellis (2 W. Bla. p. 955) a bond was taken, conditioned that the defendant should appear to answer a contempt in Chancery; such bond was void without express authority given to the officer to take it, but upon the demurrer after oyer, the Court held that the defendant should by pleading have stated such facts as were necessary to bring-the question before the Court, and that the want of authority could not be assumed. In various cases, where bail bonds had been taken in disregard of the £?tat. of H. 6, upon demurrer, the bonds have been held void, because no .extrinsic fact could have made valid what was void by the Statute.

In the case before us, I think that after, oyer, the de-fondant should have pleaded non est factum, unless (as is probable) the same objection existed to the declaration in this case, which in another case between the same parties, has been held fatal upon demurrer.

Motions írefused.  