1833. DENTON against RICHMOND. The plaintiff COVENANT on an indenture of lease, dated 26th granted to the defendant a lease, which after stipulating that not more than one third of the rent of 51. for every acre continued in tillage contrary to the lease. A de claration in Covenant al February, 1825, between the plaintiff of the one part, and the defendant of the other part, by which the plaintiff demised certain premises and buildings, with 77 acres of arable, meadow, and pasture land in the indenture described. To have and to hold the same from 11th October then last past for ten years, with liberty year, reserved for the defendant, his executors, administrators and a yearly rent of 50l. and also a assigns, to plough, till, and crop all the said land in further yearly such manner as he should think proper for the first seven years of the said term thereby demised, and ploughed up or liberty for him the said defendant, his executors, &c., for the remainder of the said term, to plough, till, and crop the said lands in such way as he might think proper, at a yearly rent of 507.; but with a reservation that not more than one third of the said land, or as nearly one third as the different sizes of the closes would admit, should be in cropping in any one year, at a yearly rent of 50%., and also yielding and paying over and beyond the aforesaid reserved rent unto the said plaintiff, his heirs and assigns, the further yearly rent or sum of 57. of like lawful money for every acre, and so in proportion for a greater or that the plain- lesser quantity than an acre of any part of the said knowledge of premises which the said defendant, his executors, &c., should at any time or times during the said term, matters alleged plough, crop, break up, or convert into or continue in ration relating tillage, or manage otherwise than according to the leged that de fendant in one particular year cropped more than one third of the land demised; and sought to recover half-ayear's addi tional rent. Pleas, first, tiff with a full the breaches and of all the in the decla thereto, ac cepted from the defendant 251. as and for all the rent due up to a certain day named, without demanding payment of such penalty or additional rent, and thereby waived his right to receive or recover the same. Secondly, that plaintiff, with full knowledge of the breaches &c., waived all claim or right on his part to receive any such penalty, &c.: Held, that the pleas, whether considered as pleas of tender or of accord and satisfaction, were bad on general demurrer; and that the right of the plaintiff to recover the additional rent by way of stipulated damages, was not waived or discharged by any matter stated therein. liberties and reservations in the indenture contained, without the consent of the said plaintiff, his heirs or assigns, first had or obtained in writing for that purpose, such increased rent and payment (if any should become due and payable) to be paid at the first of the beforementioned half-yearly days of payment which should happen after such ploughing, cropping, &c., contrary to the liberties and reservations in the lease, and should continue payable during such parts of the remainder of the said term as the same should continue to be so cropped, ploughed, or converted into or continued in pillage contrary as aforesaid. Covenant by defendant to pay to the plaintiff the said yearly rent of 50l., and also the increased rent (if any should become due and payable) at the times and in the manner aforesaid. The first breach stated, that after the making the said indenture, and during the said term thereby granted, and after the expiration of the first seven years thereof, and whilst the defendant was possessed of the demised premises with the appurtenances, he, without the consent in writing of the plaintiff first obtained, in one and the same year, that is to say, in the year between the 20th October 1831, and the 20th October 1832, and before the 6th April 1832, to wit, on 1st February 1832, did plough, crop, and break up above, beyond, and considerably more than one third of the said land by the said indenture demised, and above one third thereof, calculated as nearly as the different sizes of the closes would admit of, to wit, 30 acres above &c., one third of the said land so demised as aforesaid, contrary to the liberties and reservations in the indenture. By means whereof the defendant, according to the form and effect of the indenture and of his covenants so by him made, became liable to pay to the said plaintiff on 6th April 1832, being the first of the before-mentioned half-yearly 1833. DENTON v. RICHMOND. days of payment which happened after the ploughing, cropping, and breaking up of the land aforesaid, a certain large sum of money, to wit, the sum of 75l., being one half-yearly payment of additional rent for and in respect of the said thirty acres, above, beyond, and more than one third of the said land demised, so ploughed, cropped, and broken up as aforesaid, calculated at and after the rate of 51. per annum for every such acre. Second breach, that the defendant kept and continued cropped and in tillage in one and the same year, above, beyond, and considerably more than one third of the land demised. Pleas; first, as to so much of the declaration as relates to the supposed breaches of covenant firstly and secondly assigned, that after the committing of the said supposed breaches of covenant and of all the matters and things in the said declaration alleged, so far as the same relates to the said supposed breaches, and before the exhibiting of the bill, to wit, on 2d November 1832, the plaintiff, with a full knowledge of the said supposed breaches of covenant and of all the said matters and things in the said declaration, so far as it relates to those breaches respectively mentioned and alleged, accepted and received of and from the said defendant the sum of 251. as and for all the rent due for or in respect of the said premises up to and inclusive of 11th October 1832, without demanding or requiring the payment of such penalty or additional rent as in the first and second breaches mentioned or any part thereof; and thereby then and there waived, gave up, and dispensed with his right to receive or recover any nomine pœnæ or penalty, or such additional rent as in those breaches mentioned as aforesaid, or any part thereof. Verification. Second plea to the same breaches, that after the committing of the said supposed breaches of covenant, and of all the said several matters and things in the said declaration alleged, so far as it relates to those breaches, and before the exhibiting of the bill, to wit, on 2 Nov. 1832, the plaintiff waived, gave up, and dispensed with all claim or right on his part to receive, recover, or be paid any such penalty nomine pœnæ, or additional rent, as in those breaches respectively mentioned, or any part thereof. Four other pleas traversed the breaches in the declaration. General demurrer to the first and second pleas. Joinder. The points marked for argument by the plaintiff were, first, that the increased rent reserved by the indenture of lease declared on, was not to be considered as a penalty in the event there stated; and, secondly, that the plaintiff did not, by accepting the rent originally and expressly reserved, abandon his right to sue for any increased rent. Channell in support of the demurrer. The first plea is the least objectionable, but it admits the breaches, and is bad as a plea of tender (a). Nor is it good as a plea of accord and satisfaction, partly because it does not answer the whole declaration, Thomas v. Eaton (b), and partly because it discloses no legal matter to show that the plaintiff has waived his right to recover on the breaches to which it is applied. Nor is that varied by the fact that if judgment had gone by default inquiry might have been had as to the amount of additional rent due and payable for each acre overcropped. Nor can the plea be supported by construing the additional rent to be in the nature of a penalty, a forfeiture of which had been incurred, and might be waived by the plaintiff. The additional rent is not a penalty; for, in a court of law, the precise amount of (b) 2 B. & Cr. 477. (a) See Johnson v. Clay, 7 Taunt. 486. 1833. DENTON v. RICHMOND, 1833. DENTON v. it must be recovered as stipulated damages, i, e. a liqui- (a) 2 Brown's P. C. 436; 6 id. 417. (b) 2 Atkyns, 239, (d) 3 Atk. 396. As |