1845. STEAD v. POYER subsequent to the delivery. It does not shew any sufficient acceptance by the plaintiff in full satisfaction and discharge. It says, the plaintiff did "then" accept such delivery. "Then” may have reference to a time subsequent to the de- and Another. livery, and not to the agreement. The plaintiff cannot reply de injuriâ; and if he traverse the delivery to Kerr, the averment of acceptance may be sufficient after verdict. Byles, Serjt., contrà. It is submitted that the plea is good. In Peytoe's case (a), Lord Coke says, "The best and most secure form of pleading of an accord, is to plead it by way of satisfaction, and not by way of accord." In the present instance that course has been followed. The facts pleaded, shew a sufficient delivery; and then there is an averment, thatin point of fact the plaintiff accepted the delivery to Kerr as satisfaction. It is said, however, that it does not sufficiently appear by the word "then," that that acceptance was contemporaneous with the delivery. In Thornton v. Jenyn s(b), where the declaration alleged, that in consideration, that the plaintiff had then promised the defendants to observe and perform all things on his part to be observed and performed, the defendants then promised the plaintiff to observe and perform all things on their parts to be observed and performed; and the same objection being there made, Tindal, C. J., in delivering judgment says, "I think that the fair and reasonable construction of this allegation is, that the word 'then' relates to the same period of time in the case of both promises; and that we are not bound to refer the one promise to a period antecedent to the other, although the plaintiff's promise may possibly have preceded the defendants', but that we may take them to have been simultaneously made." [Maule, J.-That was not upon special demurrer to the declaration]. The case of Webb v. Weatherby (c), shews that the plaintiff may reply to a plea of (a) 9 Rep. 80, a. (b) 1 M. & G. 166; See S. C. 1 Scott, N. R. 52. (c) 1 Bing. N. C. 502; See S. C. 1 Scott, 477. 1845. STEAD v. POYER payment in accord and satisfaction, that the defendant did not pay the sum in satisfaction, nor did the plaintiff receive it in satisfaction. The plaintiff, therefore, could not be in and Another. any embarrassment in the present case, as to the mode in which he was to answer this plea. Nor can it properly be said to be a deviation from the usual form of plea, as there is no prescribed form. Channell, Serjt., in reply, was stopped by the Court. TINDAL, C. J.-I think that the word "then," may possibly mean the same period of time; and that when the defendants allege, that upon a given day they delivered the blocks by the direction of the plaintiff, and that it was "then," to wit, on the day and year aforesaid, in consideration thereof, agreed by and between the plaintiff and the defendants, that the plaintiff should accept such delivery in full satisfaction and discharge, and that the plaintiff did "then" accept such delivery in full satisfaction and discharge; they really mean that such agreement was contemporaneous with the delivery. That would be the natural inference; but at the same time it is obvious that the expression is capable of another construction. It may 'possibly mean that "then," that is after the delivery, the plaintiff agreed; and therefore it is not so clearly stated as to exclude all doubt, or to be certain to a common intent; and when I see that the defendants have departed from the usual form, which usage has prescribed, I think we are bound to see that they do not travel extra viam. As the defect is pointed out on special demurrer, it must prevail. COLTMAN, J.-The word "then" is capable of two constructions. It may mean, that the whole took place at one and the same time, or the defendants at the trial may say the plaintiff was present at the delivery, that they then all went elsewhere and afterwards and in another place made the agreement. 1845. STEAD v. POYER MAULE, J.-I am of the same opinion. The plea is studiedly ambiguous. It would be supported in the ordinary sense of its language by proof at the trial, that the plaintiff after the delivery and on a subsequent occasion, and Another. agreed to accept the delivery in satisfaction, which would be no defence to the present action. If the plaintiff had pleaded over, the case might then have been different, and the plea might perhaps have been good; as by adopting such a course the plaintiff admits that the plea affords an answer, and that if by any construction an answer can be given, that construction shall be considered as its meaning. But here the objection is pointed out on special demurrer, and I think must prevail. CRESSWELL, J., concurred. Judgment for the Plaintiff. FRANKLIN v. Carter. COVENANT on an indenture of 6th February, 1839, between the plaintiff and the defendant, by which the plaintiff demised to the defendant a messuage and shop from the 25th of March, then next for twenty-one years at a yearly rent of 70%. Breach, that the defendant had not To covenant defendant pleaded as to for rent, the 21. Os. 10d. parcel, &c., any part of that before the rent became due, to wit, on, &c., a large sum of money, to wit, 21. Os. 10d., "being at and after the rate of 7d. for every 20s. of the annual value, to wit, 707., of the said messuage," &c., was duly, and according to the form of the statute in such case made and assessed on the said messuage, &c., in respect of the property thereof, for the year then next ensuing ;" and that the defendant then being the occupier and tenant thereof, paid that sum to the collector; and that the defendant had never since made any payment to the plaintiff on account of the said rent: Held, on general demurrer, that this was a good plea under the Income Tax Act, 5 & 6 Vict. c. 35, The defendant also pleaded as to 521. Os. 10d. parcel, &c., that the plaintiff himself held under a lease, with a clause of re-entry in case of breach; that he committed a breach; that "by reason and in consequence of the said forfeiture," John Doe brought his action on the demise of the superior landlord, the date of which was laid on the day of the forfeiture and before the rent accrued due; that judgment was recovered, and notice thereof given to the defendant, who was compelled to pay the rent to the superior landlord: Held, on special demurrer, that the plea was good; it not being alleged as a ground of demurrer that it was not shewn that the ejectment proceeded on the ground of the forfeiture. Quare, even if it had been alleged, would not the plea have been good? 1845. FRANKLIN v. CARTER. paid a year's rent due, and in arrear on the 29th September, 1844. First Plea. As to the sum of 21. Os. 10d., parcel of the sum of 70%. in the said declaration mentioned, as due and in arrear to the plaintiff, the defendant saith that after making the said indenture, and whilst the defendant held the said tenements thereunder as tenant thereof to the plaintiff, and whilst the plaintiff was entitled to the said annual sum of 701. reserved by the said indenture, and before any part of the rent in the declaration mentioned had accrued due, (to wit), on the 5th day of April, in the year of our Lord one thousand eight hundred and forty, a large sum of money, to wit, 27. Os. 10d., being at and after the rate of 7d. for every 20s. of the annual value, (to wit), 70l., of the said messuage, tenement, shop, and premises, was duly and according to the form of the statute in such case made and assessed on the said messuage, tenement, shop, and premises, in respect of the property thereof, for the year then next ensuing; which said sum of 21. Os. 10d., was payable by four quarterly instalments, that is to say, on the 20th day of June, the 20th day of September, the 20th day of December, and the 20th day of March, then next ensuing : and afterwards and before the commencement of this suit, to wit, on the 28th day of August, in the year of our Lord, one thousand eight hundred and forty-four, the defendant then being the occupier and tenant of the said messuage, tenement, shop, and premises, paid to Thomas Casey, then being the collector of the said tax, the said sum of 27. Os. 10d.; and the said sum of 27. Os. 10d., so paid by the defendant, was and is 7d., for every 20s. of the said sum of 707., the annual rent payable by the defendant to the plaintiff, under and by virtue of the said indenture, for the said messuage, tenement, shop, and premises and the defendant has never made any payment to the plaintiff, on account of the rent of the said messuage, tenement, shop, and premises since the payment of the said sum of 27. Os. 10d.: and this the defendant is ready to verify, &c. 1845. 0. CARTER. Second Plea. As to the sum of 52l. Os. 10d., parcel of the said sum of 70%. in the declaration mentioned, being FRANKLIN the rent which is alleged to have accrued due on the 25th day of March, the 24th day of June, and the 29th day of September, in the year of our Lord, one thousand eight hundred and forty-four, and the damages and causes of action in respect thereof, the defendant says that the plaintiff ought not further to maintain his action thereof, because he says that before and at the time of making the indenture in the declaration mentioned, to wit, on the 14th day of August, A.D., 1820, Robert John Smith, was lawfully possessed for a term of years, whereof upwards of fifty-three and a half years, wanting twenty-one days from the 24th day of June, were to come and unexpired, of and in the said messuage, tenement, shop, and premises, in the declaration mentioned; and being so seised thereof, before making the said indenture, to wit, on the said 14th day of August, in the year last aforesaid, by a certain indenture then made between the said R. J. Smith, of the one part, and the said plaintiff, of the other part, the said R. J. Smith, did demise and lease the said messuage, tenement, shop, and premises, with the appurtenances in the declaration mentioned unto the plaintiff, his executors, administrators, and assigns, to have and to hold the same unto the plaintiff, his executors, administrators, and assigns, from the 24th of June, then last for and during and unto the full end and term of fifty-three years and a half, wanting twenty-one days from thence next ensuing, and fully to be completed and ended; and the plaintiff did in and by the said last mentioned indenture, amongst other things covenant, promise, and agree with, and to the said R. J. Smith, that he, the plaintiff, his heirs, &c. (Covenant to repair). And also that the plaintiff, his executors, administrators, or assigns, should and would from time to time, and at all times during the said term thereby granted, insure or cause to be insured, the said messuage, tenement, shop, and premises, and every part thereof, in the Albion Fire Office, in |