
    John La Point, Pl’ff in Error. vs. Dennis S. Cady, Def’t in Error.
    Tho distinction between an 'exbepti&i and a proviso in a covenant, is this; a proviso consists in the intro'du’ction in tho pleading, of something extrinsic to the subject Aiattor of tho covenant, which goes in discharge of it, by way of defeasance. An exception is the taking out of a covenant some part of the subject matter of it.
    Whero a Plaintiit declared upon a lease, containing covenants to furnish a certain amount of water power, subject only to such interruptions as were provided for in a certain other loase, executed between other parties, and in his declaration, averred that the breach of the covenant, _ in not supplying water, corresponding with the provisions of tho lease in question, did not arise from interruptions providbd for in the other lease, but was through the neglect of tho lessor, held that the declaration was not bad for that cause, and that the Plaintiff might nevertheless recover in the suit by showing a breach of the eovonant, and that the redundant matter of his declaration might bo rejected as surplusage, and need not bo pirovbd.
    Error to tho Circuit Court of Milwaukee County.
    This was an action of covenant, brought by the plaintiff in error against the defendant in error, upon a lease containing mutual covenants, to-wit: On the part of the plaintiff, to furnish to the defendant a certain water-power in Milwaukee, for a stipulated price for one year, furnishing a given amount of water, and to be furnished for .a certain number of hours daily, subject, however, “ to the interruptions provided for in a certain lease in the Milwaukee & Rock River Canal Company* to J. T. Perkins',” but v&hích wéfé riot Set forth in the leásé between the parties to this áct'ion, or in the declaration. The declaration alleges breaches by the defendant; df nonpayment of the sum stipulated'.
    The défendan't pleaded that the covenant declared Upon \vas not his deed; arid under that plea gave noticé that he would prove that the plaintiff did not perform certain covenants córitáined in hfs part of the lease to be perform^ ed by him, and relating principally to the deficient Supply of water as stipulated by the covenant;
    On the trial of the cause the plaintiff gave in evídénce the covenant of lease between the parties, and gave testimony, showing, or tending to show, a failure on the £>art of the defendant to furnish the water-pówer to the plaintiff according to t'he provision's of the covenant in the lease, and showing, or tending tó show, the damages sustained thereby.
    The defendant offered iri evidence, testimony showing, or tending to show, a compliance on his part with the covenant's contained in such lease, and amongst other things, produced, or offered to produce in evidence, thb lease exe'euted to him by the Milwaukee & Rock Rivet Canal Company, and referred to iri the lease between the parties to this suit; and here the parties respectively tested.
    The Judge; amongst other things', chárgcd the Jury; 'as follows: “ The plaintiff has brought what is called an action of covenant, because he sues upon the defendants covenants, in the case they have máde. Iri ordér to maintain his action he must first set out súch a cove'riant ris he can recover on; and second, must set but the real Covenant contained in the instrument, fully} cle'árly} and truly. In the present case, the 'lease from defendant to plaintiff, contains the covenant (to supply .water-power,) on which the action is based; but that covenant is qualified by a reference to the lease from the Rock River Canal Company, to defendant, and the undertaking of defendant is limited by the obstructions provided for in the Canal Company’s lease. In order therefore to enable the plaintiff to show what extent his right had, he must show to what extent it was limited. by the provisions of the Canal Company’s lease. Now to show these limitations on a trial in Court, he must introduce testimony by persons or papers to prove the facts clearly and with certainty; and unless he has alleged substantially in. his declaration the matter that he wishes to prove, he cannot introduce evidence to provq it. In the present case the declaration merely recites, the language of the defendants and plaintiffs lease; referring generally to the other lease. What the provisions of that other lease a re it does not aver, or assume, to aver, or set out. Hence the lease of the Rock River Company was offered in evidence, and the defendant objected that no foundation was laid for such proof in the declaration. Not being satisfied fully as to the point, when the lease was offered, I admitted the proof. But on further reflection, I am well satisfied that the objection was well founded, and that the lease of 'the Canal Company must be rejected before the Jury. I am the more fully convinced in this view of the matter by an examination of the Canal Company’s lease and comparing it with the words of the defendants and plaintiffs lease. The word, “ interruptions,”- which occurs in the latter lease, as describing the limitations of the plaintiffs rights under ít? cloes not occur' in "(he. former lease. What is meant by the word “ obstructions,” as used in the lease between the-parties, must be explained by the Court or Jury, and can only be ascertained by a careful examination of the Canal Company’s lease. To what precise extent it,reaches and qualifies the rights and liabilities of the parties is a matter of much doubt, and of very great importance, both to these parties and many others similarly situated. It was necessary for the plaintiff before, he coqld show to you that he had been deprived of the water power which the defendant had covenanted to give him, to show precisely and clearly what amount of water-power he was entitled to; and that he can never do, without introducing the Canal Company’s lease and showing what interruptions it provides for on this point. I am of the opinion that tha plaintiffs declaration is fatally defective, and that he cannot in any event recover in this suit.”
    The plaintiff, on the trial, excepted to the charge of the Judge as herein given, and a ' bill of exceptions was made in due form and sealed by the Judge. The Jury found a verdict for the defendant and the cause came to this Court on a writ of Error upon these exceptions. ■
    
      A. D. Smith 8f C, K. Watkins, of counsel for the plaintiff in error,
    made aqd argued the following points:
    The covenant; declared upon is, that the defendant in consideration of rents reserved and covenants on the part of plaintiffs, agreed to furnish the plaintiffs so much water as shall be necessary for a Sash &c. Factory.
    An agreement of the plaintiff occurs in the lease, not to use such' water power, but ten hours per day, of which a statement is made in the declaration, and the breach assigned is that the defendants did not furnish the wTater ten hours per day. Thercí ate ini the lease' covenants- “ that plaintiff shall put up the fire apparatus,-” “ shall-clean away the chips,” &e), “ and- that the úse of the water power by plaintiff is- to be subject to the {interruptions provided for in the lease of the- Milwaukee and Rock River Canal Company to J. T) Perkins,’ ” These covenants of the plaintiff" are not stated in the declaration} with an averment of the performance; ánd need not be; because they are only to a “ part of the consideration oii both sides” — 1 Sanders, p< 320, JCote 4¡ anda breach of Cither of them may be recovered for in damages. — 7 Ji R. Bennett vs. Exectrs: of Pixley, 249.
    
      Secondly. — These covenants need not be noticed in the-declaration for the covenant declared on is not a cove--nant to furnish water for paying rent, or for cleaning away chips, or for putting up ftre apparatus, or in consideration of the same performed; but a covenant of defendant to furnish water in consideration that Plaintiff had entered into covenants to he performed, and not in consideration of the same performed. In the one form the plain¡tiff’s covenants would be a condition precedent to be 'averred and performance proved, before this action could be maintained. In the other form, in which the same are stated in the lease, they áre independent covenants and' need not be averred of proved. — 1 Sanders Rep., 320; note 4. 10 J. R. Cunningham et al. vs. Morrell, 293 1st Chilly's Plead. 364 and 347. 5 Wend. 497 — 8 Wend. 615.
    
      Thbdly. — The interruptions to which plaintiff" it subjected arc not exceptions to, or qualifications upon, the covenant declared on, but are extrinsic the subject matter of the defendants covenant and form a proviso upon the covenant; and not an exception to it; An exception should be stated, but a proviso need not be.“l Sanders Prac. and Evidence, 393. 1 Sanders Rep., 234, Note 2. Tem-pamj vsi Burnand, Gamp. JVt P\ C. 20.
    
      Fourthly. — These provisions in the Milwaukee and Rock River Canal Go’s, lease, are all in defeasance of defendant’s covenant and should be pleaded in discharge of his liability'. — 2 Denio 235; and need not be stated by plaintiff.
    
      Fifthly. — The Court should not withdraw the testimony from and submit the cause to a Jury, but should either submit the evidence and leave the defendant to his remedy by motion in'arrest, or non-suit the plaintiff. — 21 Wend. 109; 23 Wend. 480; 1 Wend. 378. 18 Wend. 169.
    
      Orton Cross, counsel for the defendant in erroi\
    made and argued the following point: That the qualilition contained in the lease executed by the Canal Company to J. T. Perkins, and which lease was referred to in the covenant made between the parties in this suit, was not set out or averred in the declaration executed in this cause. That in order to have made that lease the subject of evidence it should have been set out in the declaration, so far as it had application to the lease executed between the parties to this suit or tended in any way to qualify, restrict, or enlarge it. That in a declaration founded upon a covenant mutual, dependent or independent, the plaintiff was bound by the rule of pleading to sot out all matters, which were incidental to the covenant, at least so far as it related to or formed a part of the covenant declared upon; and especially so Where the latent instrument was the basis upon which damages were claimed, or laid the foundation for the recovery of damages. That the admission of such a paper in order to maintain a suit, in this form of actioify showed clearly that the declaration was defective, so far aj. least, as the introduction of such evidence was con-,i*^|tfcerned; and to this point they oitpd. — 2d Phillips Eo., 146. \%th English Com. Law Rep., 24.
    to the form of the declaration in such a case he . (¿ted. — -2d Chitty's Pleadings, 528. 1st do 86, and 89. Gpuld on pleadings, \ 78.
   By the CouRT.

Hubbell, J.

The plaintiff’s declaration sets out several covenants in the defendant’s lease, including the following: “Also, the use, during the continuance of the lease, in the said room first named, of so much w'atei’-power, to be delivered in said first room, as should be necessary and proper for the purpose of enabling the plaintiff to carry on the business of manufacturing sash, doors and blinds, and to propel all machinery proper and necessary to be used in and about the hpginess aforesaid, to be used, nevertheless, but for ten hours per da.y, for each and every day during the term aforesaid, according to the tenor and effect of said lease [ tyhicl^ said water-pqyver the said defendant covenanted to furnish to the said plaintiff for the purpose aforesaid, by him to be used but fen hours per day, for each and every day of said lease, subject only to the interrup-tionst provided, for in the lease of the Milwaukee and Rock River Canal Company to the said defendant, and to temporary interrytption from unavoidable accidents.”

And, in setting forth the breaches, the plaintiff’s declation contains the following averment :-^-“He was deprived of the use of water-power sufficient to propel his machinery, ten hours per day,as aforesaid, and enable him to carry on Jus said business; and that, too, without any hindrance or interruption from the said Canal Company, or from said accidents, hut solely from the acts of said defendant.” part of the Canal Company’s lease was set forth in declaration.

On the trial of the cause, the plaintiff offered evidj to show that-the deprivation of water-power wa: caused by interruptions,” provided for in the C Company’s lease; and also offered in evidence the leal! itself, for the purpose of showing what those “interruptions” were. The lease was ruled out by the Circuit Judge, on the ground that the deelarátion' contained no allegation authorizing its admission. The Judge also instructed the jury, that it “ was necessary for the plaintiff before he could show that he had been deprived' of the water-power, which the defendant had covenanted to give him, to show precisely and clearly what amount of waterpower he was entitled to; and that he could never do without introducing the Canal Company’s lease, and showing what interruptions it provides for on this point.” And further, that the plaintiff’s declaration, in that respect, “ was fatally defective-, and he could not recover in that huit.”

The question now is, whether the ruling and instructions of the circuit Judge were erroneous. Much was said, in the argument, on the subject of dependent and independent covenants, and the rules of pleading applicable thereto. But I have been unable to- discover any point which raises such a discussion; and I am not inclined to differ with the learned counsel, or his authorities, on that branch of legal science. The difference between us, arises upon the construction of the clause in the plaintiff’s lease, which refers to the lease of the Canal Company; ?ind the question is, in technical language, whether that clause constitutes an exception or a proviso. In the Court below, I held it to be the former; that is, I held it to be a direct and positive qualification or limitation of the covenant to supply water-power. If this was the proper con-’ struction, it was necessary for the plaintiff to state the matter which constituted the qualification; and to prove it, as alleged. In other words, he must set forth so much of the Canql Company’s, lease as was necessary to show the nature and extent pf the “interruptions provided for” therein; and must introduce the lease in evidence on the trial. 1 Saunders, 293; 11 East, 633; 4 Camp., 21; 1 Term Rep., 638.

If, on the other hand, this clause in the covenant, constituted a proviso, and not an exception, it was not necessary for the plaintiff to set out either the clause in question, or the lease to which it referred. But the defendant would be compelled to raise the mafter by plea or notice, if ho deemed it material to his, defence. Such % the rule of authority upon this subject. (1 Lev. 88. Cro. Jac. 537. 1 Saund. Rep., 233, note C.) It is not necessary, nor would it perhaps, be respectful tomyasson ciates on the Bench, for me' here, to indulge in a discussion of. the settled distinction between an “ exception” and a “ proviso.” Much learning has been displayed, in this case, and elsewhere, without disclosing to my mind any very clear, definite or practical line of demarcation, The very learned Mv- Saunders, has given perhaps as satisfaetpry a definition of the terms, as can be found, “ There is,” says, he, “ some distinction between a proviso and an exception', a proviso is properly the statement of Something extrinsic- qf Uw subject matter of the eovemtit» which shall go in discharge of that covenant by way of defeasance: an exception is the talcing out of a covenant some part of the subjeet matter of it” (l Saunders Plead, and jEo. 393.)

But whatever doubts or difficulties erayíron ¿lie distinc-ión itself, when it is once ascertained, and the doubtful clause in a covenant has ,be.en baptized with a name, the rules of pleading applicable thereto, are readily determined. If it be resolved into a proviso, the ibyrden of proo^ as we have seen, changes from the plaintiff to the defendant. In the present instance, a inajority of the Court hold that the clause in question, is a proviso; apd 'they therefore hold, that the plaintiff unnecessarily sot forth .this clause in his declaration, and .unnecessarily ¡added the averment, that he was deprived of the use of the water-power, “without any hindrance, or interruption from the said Canal Company, or from said accidents, but solely from the acts of said defendant.” They further hold that these parts .of the declaration may b,e treated as mere surplusage, and that it was not pecessary for the plaintiff to sustain them by proof; but that it was sufficient for him to state the covenant to supply the water-power, in the place mentioned, for the time mentioned, and, then, to allege the breach. In this view of the matter, the rejection of the Canal Company’s lease, when, offered in evidence, becomes immaterial; but the instructions of the .Judge to the Jury, were erroneous. Deeming it far more important to settle a rule of practice, than So establish. an opinion, I cheerfully yield to the authority of my brethren.

Judgment reversed with costs.  