1849. บ. the plaintiff, a repleader shall be granted." And in Lambert v. Taylor (a), Abbott, C. J., says: "The quesCROSSFIELD tion whether the plaintiff can have judgment, or whether MORRISON. there ought to be a repleader, depends upon the question whether the plea does or does not contain a confession of a cause of action: if a cause of action be confessed by the plea, and the matter pleaded in avoidance be insufficient, the plaintiff is entitled to judgment, notwithstanding the verdict: if the plea does not confess a cause of action, there must be a repleader." In Goodburne v. Bowman (b), Tindal, C. J., suggests that the cases establish, that, "if the plea does not confess a cause of action, and does contain a sufficient avoidance, it is bad, and a repleader must be awarded." It is true that was not essential to the decision of that case. In Plummer v. Lee (c), which was an action of debt on an award, by an administratrix, the declaration stated, that, on the 12th of July, 1833, a settlement of part of the accounts took place between the deceased and the defendant; it then stated a submission to arbitration, by the plaintiff, as administratrix, and the defendant, and an award: the first plea traversed the making of the award; the second traversed that the settlement took place on the day mentioned in the declaration; the third traversed the making of such settlement at any time: on the trial, the plaintiff had a verdict on the first and third issues, and the defendant on the second: and, after argument, and time taken to consider, the court held that the second plea did not contain any confession, and that judgment non obstante veredicto could not be given, but awarded a repleader. In Gwynne v. Burnell (d), the House of Lords would (a) 4 B. & C. 138., 6 D. & R. 188. (b) 2 M. & Scott, 706. (d) 6 N. C. 453, 1 Scott, N. R. 711.; cited i M. & G. 939., 5 M. & G. 674., antè, Vol. II. 444., Vol. III. 492., Vol. VI. 289. 1849. CROSSFIELD v. have awarded a repleader, upon the authority of the cases above cited, if it had been competent to a court of error so to do. (a) In Negelen v. Mitchell (b), the plea confessed but did not avoid. In 2 Wms. Saunders, MORRISON. 319 d, n. (h), it is said, that, "where a plea is good in form, though not in fact, or, in other words, if it contain a defective title or ground of defence, by which it is apparent to the court, upon the defendant's own shewing, that, in any way of putting it, he can have no merits, and the issue joined thereon be found for him, then, as the awarding of a repleader would not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto; but, where the defect is not so much in the title, as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there, for their own sake, they will award a repleader.” [Maule, J. As the plaintiff was wrong in alleging an immaterial fact, and the defendant was wrong in traversing it, the latter ought not to be permitted to stand in the same beneficial position as he would have been in if he had demurred, as he ought to have done.] The reason is well given in Staples v. Heydon (c), where Lord Holt says: "Where the defendant confesses a trespass, and avoids it by such a matter as can never be made good by any sort of plea, there, in such a case, judgment shall be given upon the confession, without regard to the finding upon an immaterial issue. But, where the matter of the justification is such a matter as, if it were well pleaded, would be a good justification, there, though it be ill pleaded, yet that shall not (a) See 2 Wms. Saund, 319 b, n. (e). (b) 7 M. & W. 612. (c) 2 Ld. Raym. 924., 6 Mod. 10., 2 Salk. 579., 3 Salk. 121. 1849. be taken to be a confession of the plaintiff's action. And the books do all of them, if they be narrowly CROSSFIELD looked into, turn upon this difference,—where the confession is full, and the matter of the plea is ill in substance." V. MORRISON. Talfourd, Serjt., and Dowdeswell, in support of the rule. If this had been the case of a mortgage, with a power to enter for non-payment of the mortgage money or interest, it might have been reasonable that the covenant to indemnify should be limited to the period of the covenantor's enjoyment of the property. This, however, is the case of an absolute sale: and, what is there unreasonable in a covenant to indemnify during the continuance of the lease? The construction contended for on the other side, would expunge the words "at all times thereafter," which certainly are not idle. [Maule, J. If those words had not been there, the covenant to indemnify would only have been during the defendant's possession, which would not have been sufficient.] The plaintiff is clearly entitled to judgment non obstante veredicto. The case falls precisely within the rule laid down in Negelen v. Mitchell, that, where there are several pleas upon the record, if one of them traverse immaterial matter in the declaration, and the defendant has pleaded other material matters, which have been disposed of on proper issues, the court will not grant a repleader. That case overrules Plummer v. Lee. Here, the defendant has traversed every material allegation in the declaration, and all the issues thereon are found against him. The reason for a repleader, therefore, ceases to exist. Besides, a repleader is never awarded in favour of the party who makes the first default. [Coltman, J. That is confined to the case of the issue being found for the party.] The court may, it seems, mould the rule, and, although judgment nʊn obstante veredicto only is asked for, they may award a repleader, if they see fit: Fillieul v. Armstrong. (a) Cur. adv. vult. COLTMAN, J., now delivered the judgment of the court. After stating the pleadings, the learned judge proceeded as follows: At the trial, the verdict was entered for the defendant, on the issue joined on the third plea, and for the plaintiff, on the other issues; and leave was reserved for judgment to be entered for the plaintiff for the sum of 2661. 10s., if the court should be of opinion that the plaintiff is entitled to judgment notwithstanding the verdict on the third plea. On the argument before us, it was insisted, on the part of the defendant, that the defendant was only bound to pay the rents and galeages, and to perform the covenants, during such time as he should be in possession; and that the covenant to indemnify must be construed with a similar restriction; for, that it could not be supposed that the defendant would agree to indemnify the plaintiff against the breach of any other covenants than those which he had undertaken to perform; and, as he only undertook to perform the covenants during such time as he should be in possession, it could not be the intention that he should be bound to indemnify against the breach of any other covenants than such as were to be performed during the time he was in possession. But we think the covenant to indemnify is not to be so restricted. At the time the deed was executed, it was probably in contemplation of the parties that the defendant would pay the stipulated price of 15757., and (a) 7 Ad. & E. 557., 2 Nev. & P. 406. 1849. CROSSFIELD V. MORRISON. remain in possession of the colliery: and, under that expectation, it was of course that the defendant should enter into a covenant to pay the rents and perform the covenants during the time that he should be in possession but the parties must also be taken to have had in their contemplation the possibility of the defendant's making default in paying the stipulated sum, and of the colliery's being sold by Reid under the trusts of the deed. On such a sale taking place, it was to be expected that covenants would be entered into by the purchaser, to perform the covenants of the original lease. But, the purchaser might make default in performing them and it was, therefore, reasonable that the plaintiff should require from the defendant a covenant to indemnify him against any breach of the covenants of the original lease after the sale: nor could the defendant reasonably object, as it would be only in consequence of his own default that a sale would take place. And, if we look at the terms of the covenants entered into by the defendant, they are quite consistent with this view of the case; the first covenant being, that the defendant would at all times, so long as he should be in possession, pay the rents, &c.; the latter covenant being without restriction, that he would at all times indemnify, that is to say, whether in possession or not. Such being, in our opinion, the true construction of the covenants, the question arises, whether the third plea furnishes any defence to the action. It appears by the declaration, that the assignment to Reid, as trustee, was made on the 1st of January, 1840, and that the sums on which the question arises became payable after the assignment. It is also alleged in the declaration, that those sums became payable during the time the defendant was in possession. The payment of the sums in question is alleged to have been afterwards (that is, after they had become due and payable) made |