affixed on a notice-board fixed to the outer wall of the chapel, and which board was placed there for the purpose of having notices affixed thereon, and was a notorious and conspicuous part of the chapel; that copies were personally served on George Peacock and Owen Marden; that Edward Everard had absconded for the purpose of avoiding his creditors; and that copies were served on John Brown, the gardener of Dr. Everard, at the dwelling-house of Dr. Everard at Hove; and on the wife of Dr. Everard at a dwelling-house at Brighton occupied by her and her family, and also on. Dr. Everard's attorney. He referred to Tidd's Practice, 9th edit., 1212, where it is said, upon the authority of Ruu. Eject., 2 ed., 157, that, "in an ejectment for a chapel, the service may be made on the chapel-wardens, or on the persons to whom the keys are entrusted." TINDAL, C. J.--I think the service in this case is sufficient to warrant us in granting a rule, which may be absolute in the first instance, for it appears there is no one, Dr. Everard being out of the way, upon whom a rule nisi can with any effect be served. It is of the less consequence, as the judgment in ejectment does not conclude the right. The rest of the court concurring 1838. DOE d. DICKENS V. ROE. Rule absolute (12). (12) See Doe d. Scott v. Roe, ante, p. 732. 1838. Saturday, Nov. 10th. In a declaration alleging as a breach of a covenant for quiet enjoyment an eviction, it should not be left uncertain whether the party evicting did not claim under title BROOKES v. HUMPHREYS. THIS was an action of covenant. The declaration stated, that, by an indenture of lease made the 24th of August, 1829, between the defendant of the one part, and one Benjamin Webb of the other part, the defendant demised to Benjamin Webb, his executors, administrators, and assigns, a certain messuage, tenement, and premises, with the appurtenances thereunto belonging, situate in derived from the the county of Essex-to hold the said messuage and plaintiff himself. premises unto the said Benjamin Webb, his executors, administrators, and assigns, from Michaelmas-Day then next, for the term of ten years thence next ensuing, at a rent of 501. a year; that the defendant covenanted that he then had in himself good right to demise the said messuage or tenement and premises, and moreover that Benjamin Webb, his executors, administrators, and assigns, paying the said yearly rent of 501., in manner therein in that behalf reserved, and observing and performing all and singular the covenants, &c., which on the part of Benjamin Webb, his executors, administrators, and assigns were to be observed and performed, should peaceably and quietly have and enjoy the premises for and during the term thereby granted, without lawful let or disturbance of, from, or by the defendant, his executors, administrators, or assigns, or of, from, or by any person or persons whomsoever; that Benjamin Webb entered, and assigned to the plaintiff during the term; but that the defendant, at the time of making the lease by him to Benjamin Webb, had not in himself good right to demise the said messuage or tenement and premises in manner thereinbefore in that behalf mentioned, being at the time of the making of the lease to Benjamin Webb, seised of and entitled to and interested in the said messuage or tenement and premises, with the appurtenances, for and during the life only of one Samuel Clapham, which said Samuel Clapham, after the assignment to the plaintiff, and during the continuance, and long before the expiration of the residue of the said term of years, to wit, on the 25th February, 1837, departed this life; whereupon all the title, interest, and claim whatsoever of the defendant, and of all and every person and persons claiming or to claim by, under, or through him, in or to the said premises, or to the possession thereof, and of the plaintiff, under or by virtue of the said assignment to him as aforesaid, utterly ceased and determined; and, during the continuance, and long be fore the expiration of the residue of the said term of years therein mentioned, and after the death of Samuel Clapham, to wit, on &c., one Elizabeth Noon, then lawfully claiming in that behalf, and from and upon the death of Samuel Clapham, and then having full, just, and good title to the said messuage or tenement and premises, and to the possession thereof, as against the defendant and all and every person and persons claiming by, under, or from him, and as against the plaintiff claiming under the assignment therein before mentioned to have been made to him, entered into and upon the premises with the appurtenances, and therefrom, and from the possession thereof under the said assignment, and for the residue then to come of the said term of ten years, did rightfully and wholly put out, eject, and amove the plaintiff. 1838. BROOKES v. HUMPHREYS. The defendant pleaded, amongst other things, that Plea. Benjamin Webb in the declaration mentioned, did in the in the said indenture of lease, covenant and agree with the defendant, that he, the said Benjamin Webb, his heirs, &c., should and would at his and their own proper costs and charges, during the term, repair, &c., the premises, and that he failed to perform his covenant in that behalf. General demurrer, and joinder. The points for argument on the part of the defendant were, that the payment of rent and performance of the Demurrer. 1838. BROOKES v. HUMPHREYS. Argument in support of the demurrer. covenants, were a condition precedent to the plaintiff's right to sue for a breach of the covenant for quiet enjoyment, and that the breach was not well assigned in the declaration. Channell, in support of the demurrer.-The defendant granted a lease for a term not expired by effluxion of time, with a covenant that the lessee, his executors, administrators, and assigns, paying the rent, and observing and performing the covenants on his and their part to be observed and performed, "should peaceably and quietly have and enjoy the premises thereby demised, for and during the term thereby granted, without lawful let or disturbance of, from, or by the lessor, his executors, administrators, or assigns, or of, from, or by any person or persons whomsoever." The plaintiff, as assignee, complains of an eviction, alleging in his declaration that the defendant was entitled to the premises only for the life of one Clapham, and consequently could not grant for a term absolutely. The non-payment of rent or non-performance of the covenants by Webb, might give the defendant a right to re-enter, or be ground of an action upon the covenants; but the payment of rent is not a condition precedent-Boone v. Eyre, 2 W. Blac. 1312, 1 H. Blac. 273, n,; Stavers v. Curling, 3 New Cases, 355, 3 Scott, 740. In Dawson v. Dyer, 5 B. & Ad. 584, 2 N. & M. 559, premises were demised for a term, at a certain rent, with a proviso for re-entry if the rent should be in arrear twentyone days: the lessee covenanted to pay the rent, and the landlord covenanted that he, paying the rent at the appointed times, should quietly enjoy, &c.: and it was held that the lessee, having been disturbed in his possession, might bring covenant against the landlord, though at the time when the cause of action accrued the rent had been in arrear more than twenty-one days; for that the payment of rent was not a condition precedent to the per 1838. BROOKES U. HUMPHREYS. ciency of the formance of the covenant for quiet enjoyment. In the course of the argument, Parke, J., said (2 N. & M. 560): "It has been expressly decided by Hayes v. Bickerstaffe, 2 Mod. 34, Vaughan, 118, 1 Freem. 194, and Warren v. Astal, T. Jones, 206, that this is not a condition precedent." [Tindal, C. J.-Consistently with the breach as As to the suffialleged in the declaration, the plaintiff may have been breach assigned. evicted by one claiming title from himself.] The defendant not having pointed this out as a ground of special demurrer, cannot now avail himself of the objection unless it be available on general demurrer or in arrest of judgment. In Noble v. Smith, 1 H. Blac. 31, on a general covenant like this, the breach assigned was, that the plaintiff was evicted in consequence of a judgment in ejectment obtained by one John Yates, having lawful title to the premises. To this there was a special demurrer, assigning for cause," that it did not appear by the said declaration, that the said John Yates therein mentioned, at the time of the supposed eviction and expulsion therein also mentioned, or at any time before or since, had any lawful title to the said premises by, from, or under the defendants, or either of them, or by reason or means of any act, matter, or thing made or committed, or wittingly or willingly suf fered by them the defendants, or either of them." Here the language of the declaration points distinctly to the nature of the title under which Elizabeth Noon entered: it alleges that the defendant, at the time of making the lease, was entitled only for the life of Samuel Clapham ; that Clapham died, and the defendant's title was thereupon determined; that, after the death of Clapham, “one Elizabeth Noon, then lawfully claiming in that behalf, and from and upon the death of Samuel Clapham, and then, having full, just, and good title to the premises, and to the possession thereof as against the defendant and all and every person and persons claiming by, under, or from him, and as against the plaintiff claiming under the assign |