
    *Buster's Executor v. Wallace.
    Monday, 15th May, 1809.
    i. Action on Covenant — Breaches—Assignment.—In declaring on a covenant, it is sufficient to set out the substance and legal effect only of such parts of the deed as are necessary to entitle the plaintiff to recover; and, in assigning a breach, it is not necessary to doit in the very words of the covenant; the intention of the parties to be collected from the instrument may alone be stated. If, therefore, the declaration charge a covenant to sell to the plaintiff a certain quantity of land, and to refund all moneys paid therefor, in case the land or any part be lost, it is a sufficient assignment of the breach that “the defendant had no land at all” in the place specified.
    
      2. Same — Same—Badly Assigned — Effect of Verdict. — But, even If a breach be badly assigned, it will be aided after a verdict for the plaintiff on an issue joined on the plea that the defendant had not broken the covenant.
    3. Agreement under Seal for Sale of Land — Parol Evidence. — If B. agree to sell W. so many acres of land lying on a certain creek, &c. without specifying any boundaries; but a particular tract is shewn to W. as the land embraced by the agreement; and they accordingly enter into a contract underhand andseal; parol evidence is admissible to shew that B. either had no land at all on that creek, &c. or not that particular tract which it was understood by the parties was comprehended in the agreement.
    4. Instruction — Abstract Propositions. — A Court is not bound to give instructions on general and abstract propositions; but only on the actual case before them.
    5. Exceptions — Must Be Specific.  — If the depositions offered as evidence in a Court of Law contain matter supposed to be exceptionable, the proper course is to point out the exceptionable passages, and then move the Court to instruct Lhe Jury to disregard such passages.
    'This was an appeal from a judgment of the District Court of Charlottesville.
    The appellee instituted an action of covenant against the appellant’s testator, on a written agreement under seal, bearing date the 6th of April, 1797, in which agreement, the defendant, by his attorney, in fact, acknowledged to have sold to the plaintiff 500 acres of land, on Silver Creek in Madison County, State of Kentucky, at a certain price per acre, according to three several qualities of the land, to be estimated by two persons designated in the agreement; and further covenanted, “that if the land or any part thereof should be lost, the said Buster was to refund the money without interest, according to the rates of the, land lost; and was to defend all suits at law that might arise from other claims.” There was no other description of the land in the written agreement; nor were there any further covenants on the part of the defendant.
    The plaintiff, in his declaration, recited the contract, and averred, “that, giving faith to the representations of the defendant’s attorney, in fact, and the power made him by the defendant, he proceeded to pay him one hundred ^pounds current money of Virginia, which the defendant actually received ; and the plaintiff avers that the defendant had no land at all lying on Silver creek, in the County of Madison, State of Kentucky; and although the defendant, by contract, was to refund all moneys paid by him, proportionably to the loss sustained by the-plaintiff, and although the defendant has been notified of the premises, he has refused to return, although often requested, the defendant the money thus advanced by the plaintiff, for a consideration which has entirely failed.” Plea, “that the defendant had not broken the covenant,” and issue thereupon.
    At the trial, a number of depositions taken in the State of Kentucky, (the most important of which were taken after two juries had been sworn in the cause, who could not agree in their • verdict,) were offered in evidence by the plaintiff. These depositions, besides containing much hearsay evidence, tended to explain the intention of the parties at the time of entering into the agreement, and to prove covenants on the part of the defendant, which were not inserted in the said agreement; particularly, it was proved by the person who drew the instrument of writing, and after-wards attested it as a witness, that the defendant’s attorney agreed with the plaintiff, “that if he did not prove that the spot of ground on which they then were, was the spot of ground called for by his, Buster’s entry, made by a certain Benjamin Blackburn, he would refund to the plaintiff the purchase-money. After which agreement, the deponent drew an article between the parties,” &c. Whereupon the defendant, by his counsel, moved the Court “to exclude such parts of the depositions, in this cause, from going in evidence to the Jury, as were at variance with the covenant, or went to explain the same.” But the motion was overruled, and the whole of the depositions suffered to go in evidence to the Jury. To this opinion of the Court, the defendant tendered a bill of exceptions, which was signed, sealed, and made a part of the ^record. Verdict for the plaintiff for 300 dollars damages, and judgment thereupon; from which the defendant appealed to this Court.
    Hening, for the appellant, made the following points, and cited in support thereof the corresponding authorities.
    1. That the breach was not well assigned, because it was neither in the words of the covenant, nor did it comprehend its effect; and was moreover' too uncertain. 5 Com. Dig. (by Rose), 341, tit. Pleader, (C. 47;) Cro. Eliz. 914, Chantflower v. Priestley, Yelv. 30, S. C. under the name of Chanud-flower v. Prestley.
    2. That, by the terms of the agreement, the defendant was not bound to refund the money, unless the lands were lost by a legal eviction; which ought to have been averred and shewn by the plaintiff; or, at least, that a stranger entered upon him by virtue of an older and better title existing at the time of the contract. And the want of this averment will not be aided by verdict. 5 Com. Dig. (by Rose), 343, tit. Pleader, (C. 49;) Vaugh. 118, Hayes v. Bickerstaff; Hob. 34, Tisdale v. Essex, Cas. temp. Hard. 161, Jordan v. Twells; Cro. Jac. 315, Kirby v. Hansaker..
    Modern determinations, though they do not go so far in requiring that an eviction, by legal process, shall be stated, yet all agree that the entry must be averred and shewn to have been by a person having lawful right and title at the time of the contract. 4 Term Rep. 617, Foster v. Pier-son ; 8 Term Rep. 278, Hodgson, executor, &c. v. East-India Company; 1 Hass. Term Rep. 464, Emmerson v. Proprietors, &c. of Minot.
    3. That the opinion of the District Court was e/roneous on the point reserved by the bill of exceptions; inasmuch as it went to admit parol testimony to go to the Jury, which essentially varied a written agreement.
    It is a general rule, that, where there is a written agreement, the whole sense of the parties is resumed to have *been comprised in it; and therefore parol evidence shall not be admitted to disannul or substantially vary it. This was the doctrine of the common law before the statute of frauds existed; and the rules of evidence being the same in both Courts of Law and Equity, parol evidence is no more admissible in the one Court than in the other. 1 Fonb. 200; 1 Roll. Abr. 379; 4 Vin. Abr. 397, pi. 2; 5 Co. 68, Cheyney’s case; Select Ca. Ch. temp. King, 20, Christmas v. Christmas; 4 Vin. 132, pi. 13; 4 Bro. Ch. Cas. 519, Rich v. Jackson; 3 Wils. 275, Meres et al. v. Ansell; 2 Atk. [384], 400, Parteriche v. Powlet; Bunb. 65, Binstead v. Coleman; 3 Atk. 8, Tinney v. , Tinney; 1 Bro. Ch. Cas. 168, Hare v. Shearwood; 2 W. Black. Rep. 1249, Preston v. Merceau; 1 H. Black. 289, Gunnis v. Erhart; Ibid. 659, Haynes v. Hare; 2 Bos. & Pull. 565, Coker v. Guy; Cas. temp. Tal. 240, Brown v. Selwyn; 2 Bro. Pari. Cas. (Tomlins’ edit.) 99, Stratton v. Payne; 7 Bro. Pari. Cas. 461, 466, Errington v. Broughton; 1 Scho. & Lef. 22, Clinan v. Cooke; 1 Day’s Cas. in Error, 23, Northrop v. Speary; 2 Day’s Cas. in Error, 137, Dunham v. Baker; 1 Mass. Term Rep. 69, Paine v. M’Intier; 1 Caines’ (N. Y.) Rep. 358, Jackson, ex dem. Putman, v. Bowen ; 1 Johns. (N. Y.) Rep. 139, Schermerhorn v. Vanderheydon; 3 Dali. 415, Clarke v. Russel; 4 Dali. 430, O’Harra v. Hall.
    Hay, for the appellee,
    admitted the law to be as stated by the counsel on the other side, but contended that it did not apply to the present case.
    The declaration, though not very formal, was substantially good ; but, even if it were ■defective, it was too late to take advantage of those defects after verdict. In declaring in covenant it is sufficient to set out the substance of the covenant and the breach,  In the case of Bristow v. Wright,  it is expressly said by Lord Mansfield, “that if an action be founded on a deed, the plaintiff need not set forth more than that part which is necessary to entitle him to recover. ”
    *By the strict letter of the covenant, Wallace was to defend any suits which might be brought, and Buster to pay the expenses. But the fact was, that there was no land. How then was Wallace to comply literally with the terms of the contract? It is enough that the intention of the parties to be collected from the instrument be stated in assigning the breach. This has been done in the present case; and is clearly within the principles of the case of Bache and others v. Proctor, 
    
    With respect to the instruction of the Court, on the point of admitting of the depositions, no other instructions could have been given, from the motion which was made. The Court was asked to exclude from the consideration of the Jury certain parts of the depositions. How was the Court to comply? Were the Judges to erase the exceptionable parts? Certainly not. The proper course would have been for the counsel to select such parts as he deemed improper evidence, and move the Court to instruct the Jury to disregard them. Not having done so, the Court could not have done otherwise that permit the whole depositions to go to the Jury; not being presumed to have been those parts which were excepted to.
    
      
      Pleading — Action on Covenant — Legal Effect. — In Reynolds v. Hurst, 18 W. Va. 654, it is said: “Upon the death of the co-obligor the legal effect of the obligation was an obligation ox the- survivor alone, and in -suing on such obligation and pleading it according to its legal effect it was unnecessary to allude to the decedent parties in any part of the declaration or pleadings. Harrison v. Field, 2 Wash. 136; Elliott v. Lyell, 3Call268; Atwell v. Milton, 4 Hen. & M. 253; Roane, Judge, in Atwell v. Towles, 1 Munf. 181; Braxton v. Hilyard, 2 Munf. 49; Crawford v. Daigh, 2 Va. Cas. 521; Backus v. Taylor, 6 Munf. 488; Lyons, Judge, in Macon v. Crump, 1 Call 58V; Buster v. Wallace, 4 Hen. & M. 83.”
      The principal case is also cited in foot-note to Crawford v. Daigh, 3 Va. Cas. 531. See monographic note on “Covenants" appended to Todd v. Summers, 3 Gratt. 167.
    
    
      
       Action of Covenant — Breaches Badly Assigned — Effect of Verdict. — The principal case is cited in Laughlin v. Flood, 3 Munf. 356.
    
    
      
       lnstructions — Abstract Questions. — The court will not instruct upon mere abstract questions. Shelton v. Cocke, 3 Munf. 106, citing the principal case. See monographic note on "Instructions” appended to womack v. Circle, 29 Gratt. 192.
    
    
      
       Exceptions — Must Be Specific. — On this question the principal case is cited in Harriman v. Brown, 8 Leigh 706, andraofe; foot-note to Friend v. wilkinson, 9 Gratt. 31; Parsons v. Harper, 16 Gratt. 76; foot-note to Trogdon v. Com., 31 Gratt. 862; Norfolk, etc., R. Co. v. Ampey, 93 Va. 126, 25 S. E. Rep. 226; Shepherd v. McQuilkin, 3 W. Va. 100.
      See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
       Cowp. 665, Dundass v. Ld. Weymouth.
    
    
      
       Doug. 667.
    
    
      
      té) Doug. 382.
    
   Wednesday, May 28. The Judges gave their opinions.

JUDGE TUCKER.

Wallace brought covenant against Claudius Buster, for that the defendant by his covenant, did covenant and agree to sell to the plaintiff 500 acres of land in Kentucky, lying on Silver Creek, in the County of Madison, for which he was to pay at a certain rate; and the plaintiff avers that giving faith, &c. he proceeded to pay 1001. which the defendant actually received; and avers that the defendant had no land at all lying on Silver Creek, in the County of Madison, in Kentucky; and although the defendant, by contract, was to refund all moneys paid by him proportion-ably to the loss sustained by the plaintiff, and although the defendant hath been notified *of the premises, he hath refused to return (although often requested) the defendant the money thus advanced by the plaintiff, for a consideration which has entirely failed, to the plaintiff’s damage, &c.

The defendant pleaded, that he had not broken the covenant in the plaintiff’s declaration mentioned, as the plaintiff against him hath alleged, and thereof he puts himself upon the country, and issue was joined.

Mr. Hening, for the appellants, has taken two exceptions to this declaration. 1. That the breach is not well assigned; because it is neither in the words of the covenant, nor does it comprehend its effect, and is moreover uncertain. 2. That by the terms of the agreement, the defendant was not bound to refund the money, unless the lands were lost by a legal eviction, which ought to have been averred and shewn by the plaintiff.

As to the first of these exceptions. How far the technical phraseology of the declaration might have been judged deficient upon a special demurrer, it is unnecessary to inquire, since the defendant, by his plea, has admitted that the plaintiff hath alleged a breach of his covenant. But with regard to substance, the case of Bache v. Proctor, which was upon a special demurrer, is, in my opinion, a conclusive authority in favour of the plaintiff, if indeed authority upon so plain a case could be required. As to the second, I see nothing in the contract, to warrant Mr. Hening’s conclusion, that the defendant was not bound to refund the money, unless the lands were lost by a legal eviction. The covenant does not import to be a legal conveyance of the lands therein mentioned; there being no such description of the lands therein, as that the purchaser could have entered, and possessed himself thereof; but is merely such a contract, as a Court of Equity would compel the specific execution of, or a Court of Eaw give damages for breach of.

The vendor might have had a thousand, or ten thousand acres of land on Silver Creek in the same tract, or in a dozen ^'different tracts; into none of which would it have been lawful for the covenantee to enter upon this contract, it is therefore a petitio principii to say, that the covenantor was not bound to refund, unless the lands were lost by a legal eviction, which presupposes an entry and actual possession ; neither of which could happen, if, in fact, as is alleged in the declaration, the covenantor had no lands on Silver Creek in the County of Madison, as by the covenant is supposed.

With respect to the exception taken at the trial. It was not to be supposed or expected, that the Court could be so well apprized of the contents of the depositions, as to be able to select, without the aid of counsel, those parts which the Jury ought to disregard. The depositions being regularly taken, and read without objection, could not be withheld from the Jury, partially ; the Court could not direct any erasure, as has been supposed; and it was the duty of the counsel, specially to recite those parts which he objected to the Jury’s considering. Had he pointed out the passages, and it had appeared improper that those passages should be considered as evidence before the Jury, the Court could no doubt have instructed the Jury to disregard them; but he not having proceeded in that manner, I cannot charge his omission, as an error committed by the Court. I think the judgment ought to be affirmed.

JUDGE ROANE.

The declaration in this case, though very ill drawn, charges a covenant to sell to the appellee SOO acres of land on Silver Creek, and also to refund all moneys paid therefor, in case the land or any part be lost. It charges breaches in that the appellant had in fact “no land at all lying- on Silver Creek;” that the consideration for which a sum of 1001. was paid under the said contract had “entirely failed,” and that the said 1001. was not refunded.

The cases of Hawkins v. Berkeley, Bache v. Proctor, and others, fully justify this assignment of breaches, *in reference to the agreement on which the action is founded: the breach is substantially laid, according to the intention of the parties, which was to warrant to the appellee the land sold, or, if lost, to refund any moneys paid therefor.

With respect to the motion made by the defendant to the Court, it was, “that the Court should exclude such parts of the depositions from going in evidence to the Jury, as were at variance with the covenant, or went to explain the same.” And again,, in another part of the bill of exceptions, the motion is stated to have been “to arrest from the consideration of the Jury so much of the depositions as went to establish a fact out of the covenant stated in the declaration ; particularly those parts of the depositions which say that at the time of entering into the said covenant, the defendant was bound to refund the money, if he did not prove that the land whereon the plaintiff lived was the very land called for the defendant’s entry.”

With respect to the first part of the instruction required from the Court as above, the motion was, perhaps, too general, and the instruction required, of too abstract a nature. If given, it would have left the Jury much as they were, as they would still have to judge whether this or that particular piece of testimony was admitted or rejected by the instruction. But the Court were justified on another ground in refusing to give the instruction; and that is, that, upon inspecting the whole of the depositions, it appears that every part thereof was admissible. If they gave a correct opinion upon the actual case before them, they are to be excused from answering general and abstract questions. The latter part of the motion, indeed, propounds a particular question to the Court; but I am of opinion, that the decision of the Court thereupon was also correct.

Indeed, all the testimony contained in the depositions tends either to prove, that the appellant had no land at all *on Silver Creek; or that he had not that particular tract which it was understood and agreed between the parties was the tract embraced by the agreement. Evidence to this last point was not contradictory to the agreement; was not out of the same: it is consistent therewith: it is like the common case of admitting evidence to shew which John was meant, when there are two, and one is mentioned in a deed or agreement.

On the whole, I am for affirming the judgment.

JUDGE ELEMING.

The counsel for the appellant stated three points on which the judgment ought to be reversed.

1. That the breach is not well assigned, because it is neither in the words of the covenant, nor does it comprehend its effect, and is too uncertain.

2. That the defendant was not bound to refund the money, unless the lands were lost by a legal eviction, which ought to have been averred and shewn by the plaintiff; and,

3. That the court erred m admitting parol testimony to go to the Jury, which essentially varied a written agreement.

With respect to the first point, the breaches are well assigned, according to the principles laid down in the case of Bache and others v. Proctor, Doug. 382, that it is not necessary, in assigning breaches, to use the express words of a covenant; and that the intention of the parties, to be collected from the instrument itself, may well be stated in assigning breaches, though not particularly expressed in the •■covenant. But admitting that, on a special ■demurrer, the assignment of breaches would have been adjudged insufficient, they are •certainly good after a verdict.

As to the second point, “that the defendant was not bound to refund the money, unless the lands were lost by legal eviction,” there is no such article ill the agreement ; and the counsel should have explained to the Court how the defendant was to have been evicted of lands of which he was never seised or possessed.

*With respect to the admission of improper evidence to go to the Jury, it appears that the depositions were legally taken, and T perceive no error in the Court’s permitting them to go in evidence to the .J ury.

By the whole Court, (absent JUDGE) X/YONS,) the judgment of the District •Court was affirmed. 
      
      a) Doug. 382.
     
      
       1 wask. 204.
     
      
      Cb) Doug-. 368, 1st edit. 382, 3d edit.
     