1849. MORRISON v. faction for any inconvenience or loss which he may suffer. If the eviction of a part by the landlord will not disCHADWICK. charge the tenant from the performance of the covenants of his lease, other than the covenant to pay rent, will the relinquishing the possession of the land, and the landlord's taking possession, have that effect? We think it will not; for, the allegations do not shew a dissolution of the tenancy by mutual consent. The tenancy, therefore, continues; and, whilst the tenancy continues, the obligation to perform the covenants continues. (a) We think, therefore, the plea is bad. The third plea alleges a surrender of the tenancy before any breach, by operation of law,- by the defendant's quitting possession of the lands demised, with the consent of the plaintiff, with the intention of putting an end to the tenancy, and by the plaintiff's accepting such possession, with the intention of putting an end to the tenancy. It was contended, on the part of the plaintiff, that this plea was bad, on the ground that the agreement stated in the plea, would not constitute a surrender by act and operation of law; and that the plea, unless it shewed a surrender, furnished no answer to the declaration. And we agree that this is so; for, the breach is admitted; and, if the tenancy continued, no answer is given to it. If, however, it ought to be held, agreeably to what is said in Grimman v. Legge(b), -that the plea shews a surrender by act and operation of law, we think the plea is bad, on special demurrer, as amounting only to an argumentative denial that any breach had been committed during the continuance of the tenancy. The fifth plea is a plea of set-off, alleging, in the usual form, that the plaintiff, before and at the time of the commencement of the suit, was, and still is, indebted to the defendant in a large sum of money, &c. To this plea the plaintiff, in his replication, says that he was not indebted to the defendant in manner and form as in the defendant's last plea is alleged. To this replication the defendant demurred, on the ground that it ought to have alleged that the plaintiff was not nor is indebted to the defendant. The replication in this case deviates from the usual form of pleading: but it appears to us to be grammatically correct (a), and that the allegation that the plaintiff was not indebted in manner and form, amounts to a direct traverse of the matter alleged in the plea, and that it sufficiently answers what is alleged. The plaintiff, therefore, is, we think, entitled to judgment. 1849. MORRISON v. CHADWICK. Judgment for the plaintiff. (6) (a) Notwithstanding what is said in Faithful v. Ashley, 1 Q. B. 183., antè, 279. (in which, however, the connecting clause " modo et formâ" is not mentioned in the statement of the pleadings, and is not noticed in the argument or in the judgment), the usual form is obviously incorrect. It seems to be impossible to attach any meaning to the words, "nor is indebted," in the replication, without involving in the traverse (b) And see Burn v. Phelps, 1849. Feb. 12. A., the lessee of certain coal-mines, for a term of years, by indenture assigned the same to B. for the unexpired residue of his term, B. covenanting that he, CROSSFIELD v. MORRISON. THIS was an action of covenant. The declaration stated, that theretofore, and before and at the time of the making of the indenture of lease thereinafter mentioned, Margaret Thomas and William Trew were seised in their demesne as of fee, of and in the premises thereinafter mentioned to have been demised; and that, being so seised, afterwards, to wit, on the 29th of July, 1835, by a certain indenture of lease then made between the said Margaret Thomas and William Trew of the one part, and the plaintiff of the other profert, for and in consideration of the galeage, rents, payments, duties, covenants, conditions, and his executors, part, during so long as he or they should be in possession or receipt of the rents, produce, and profits of the premises, pay to the lessors the rents, galeages, and wayleaves reserved and made payable by the original lease, and observe and perform all other the covenants therein contained, and would at all times thereafter keep harmless and indemnified A., his heirs, &c., from and against the rents, covenants, &c., in the said lease, and from and against all actions, &c., for and in respect of the same covenants, or otherwise in relation thereto. In covenant by A. against B. upon this indenture, the declaration assigned two breaches,-first, non-payment of the rents and galeages, &c., accruing whilst B. was in possession or receipt of the rents, produce, and profits of the premises,— secondly, that B. had neglected to keep A. indemnified. Plea, to the whole declaration, that, at the times when the said rents and galeages became due, B. was not in possession or receipt of the rents, produce, or profits by the indenture assigned, &c.: Held, that the issue raised by this plea was an immaterial issue, inasmuch as the restrictive words, so long as B., his executors, &c., should be in possession or receipt of the rents, produce, and profits of the premises," did not extend to the covenant to indemnify; and, consequently, that, the jury having found for the defendant on the issue joined on that plea, A. was entitled to judgment non obstante veredicto. If one of several pleas traverses immaterial matter in the declaration, and the defendant pleads other material matters which are disposed of on proper issues raised upon them, the court will not award a repleader. 1849. v. agreements thereinafter reserved, mentioned, and contained, on the part and behalf of the plaintiff, his executors, administrators, and assigns, to be paid, CROSSFIELD rendered, kept, done, and performed, they the said MORRISON. Margaret Thomas and William Trew did demise, lease, and to farm let unto the plaintiff, his executors, administrators, and assigns, all and singular the mine, vein, pit, grove, bed, and hole of coal called The Large Vein, being the vein of coal commonly worked in the parish of Monythusloyne, lying in and underneath all those two several messuages or dwelling-houses, outhouses, barns, stables, buildings, gardens, and the several closes of lands, arable, meadow, and pasture, which were more particularly delineated, together with the quantities, mears, metes, and bounds thereof, in or by the map or plan indorsed on the first skin of the said indenture, and which lands were called or known by the several names of the Tyn-y-gelly and LwynCelyn farms, then in the several and respective tenures and occupations of John Jones and Richard Lewis, and were situate in the said parish of Monythusloyne, in the county of Monmouth, containing by admeasurement forty-six acres or thereabouts, excepting always so much and such parts of the said veins of coal as might be necessary to remain unworked for the purpose of supporting and keeping effective the main level or tramroad thereinafter mentioned, leading or extending from the Pentwyn lands under and through the lands of the said Margaret Thomas and William Trew, to the Peny-van-Issa coal lands; and also full and free liberty, licence, and authority to and for the plaintiff, his executors, administrators, and assigns, and their respective miners, workmen, colliers, servants, labourers, and others, to open, dig, search for, work, gain, raise, and get all the coal thereby demised (except as aforesaid), and to dig, sink, drive, run, and make, any pits, 1849. CROSSFIELD V. shafts, levels, tram and other roads, trenches, drains, and watercourses, in, under, upon, and about the said lands, colliery, and mines or works, as well for the MORRISON. Working of the coal thereby demised, as for the purpose of hauling, carrying, and conveying any other coal or minerals, the produce of any other collieries or estates, and particularly to continue the main level or carriage road then in progress through the Pentwyn lands, under and through the said lands of the said Margaret Thomas and William Trew, till it reaches the Pen-y-van Issa coal lands; and also to erect, build, and set up in and upon the said lands and premises, or any part thereof, storehouses, smithies, forges, mills, engines, hovels, sheds, and other buildings and machines, for the better and more effectually working of the said colliery or coalmines, and the accommodation of the colliers, miners, and others who should be, from time to time, employed in and about the said colliery and mines; but no such building or machine should be erected within one hundred yards of any dwelling-house then being upon the said lands, without the consent of the said Margaret Thomas and William Trew, their heirs and assigns, had and obtained; and also to construct and make yard spoil banks and deposits of coal or rubbish upon the said lands; and, for the purpose of using and exercising the several powers and authorities thereby granted, to take, use, and occupy so much of the surface of the said lands as might be reasonably necessary, he the said plaintiff, his executors, administrators, and assigns paying, for so much and such parts of the surface of the said lands as might be used for any of the purposes aforesaid, the fair and just value thereof; and also to raise and quarry from and out of the said lands, and to use in the erection of the buildings and works to be set up under the powers therein contained, all such stone, clay, and sand, as might be reasonably required for |