_ /,.-/,/ - / , f, ■'//,■ T 13^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY < L L.-7 - "J? IS PRACTICAL TREATISE ON ^ / THE LAW OF COVENANTS. By THOMAS PLATT, Esq. hi of Lincoln's inn, barrister at law sudet multum, frustraque laboret — Hon. LONDON : SAUNDERS AND BENNING, LAW BOOKSELLERS, (successors to j. butterworth and son,) 43, Fleet Strei i 1829. T London : Printed by Littlewood and Co. Old Bailey. TO THE RIGHT HONORABLE CHARLES, LORD TENTERDEN, BARON TENTERDEN, CF HENDON, IN THE COUNTY OF MIDDLESEX, LORD CHIEF JUSTICE OF ENGLAND, &c. &c. &c. THIS WORK, IS, WITH PERMISSION, MOST RESPECTFULLY INSCRIBED, BY HIS LORDSHIP'S MUCH OBLIGED AND MOST OBEDIENT SERVANT, THE AUTHOR. PREFACE. The utility of works expressly devoted to the inves- tigation of particular branches of jurisprudence, has been universally acknowledged ; and it is a matter of surprise, that, among the numerous valuable text books already published, the Law of Covenants has not been made the subject of a distinct treatise. With the view of supplying the defect, the Author under- took the heavy responsibility of composing this vo- lume. To collect, analyze, and reduce into order, the mass of confused, and frequently contradictory cases on the subject ; to expound their general prin- ciples ; and to exhibit, in a connected and compre- hensive form, the actual state of the Law of Cove- nants at the present day, was the serious duty he imposed upon himself. With what degree of suc- cess his endeavours may have been attended, he is afraid to contemplate. Had he been aware of the difficulties incident to the progress of his labours, he might, perhaps, have abandoned his intention, and have left the task to others more competent to carry it into execution. VI PREFACE. Must of the positions advanced as law in these pages, will, it is apprehended, be found to be fully warranted by the authorities cited in confirmation of them. But in some instances, depending rather on a train of reasoning for the conclusion arrived at, than admitting a justification by any precise case in point, the Author has, with much diffidence, sub- mitted his own opinion. As his remarks are easily distinguishable from the propositions sanctioned by judicial determination, and will be estimated in proportion only to their intrinsic worth, no danger can accrue to the student from their perusal. He may adopt or repudiate them as his better judg- ment may suggest. The selection of the Particular express Covenants treated of in Part the Third, was necessarily a matter of discretion. Those only have been introduced which the Author considered most serviceable for practice. The several particular covenants usually inserted in Apprenticeship deeds, Charter-parties, Partnership deeds, Marriage Settlements, &c, ex- cept so far as they tended to illustrate the general doctrines of the law of covenants, have not been noticed. Each of those subjects would, if fully dis- cussed, be sufficient of itself to fill a volume. Co- venants to stand seised, being but a mode of as- PREFACE. Vll surance, and now almost obsolete,' are also omit- ted. Bare abstract propositions, even if not likely to mislead, do not appear to afford the best means of imparting instruction. Unaccompanied and unsupported by the circumstances from which they are deduced, they leave upon the mind but a feeble impression of their effect, and are apt to occa- sion obscure and confused ideas : the student is left to the resources of his own imagination, or to the tedious process of examining a lengthy case, (sup- posing he has the report at hand,) to ascertain the reasons of the judgment of the court. In order to obviate these inconveniences, and to furnish a more ready solution of doubts, the Author has, in many instances, framed such a condensed narration of prin- cipal facts as he thought most likely to promote the object he had in view, namely, simplification and practical utility. On the other hand, to avoid pro- lixity, he has taken great pains to divest the state- ments of all unnecessary detail. Every one must have experienced the trouble of tracing the same case through the several contempo- rary books of reports, especially those of the early writers : its identity being often difficult to be dis- Viii PREFACE. covered, sometimes from orthographical inaccuracies, at others, from the total alteration of names. These variations in name, and the different publications in which the same case is to be found, are particu- larized in the notes. The result of his exertions the Author now offers to the profession, with an assurance that no diligence has been spared to render the work as useful as pos- sible. He has only to add, that if the information and advantage to be derived from the perusal of it be in proportion to the time, labour, and anxiety bestowed on its production, his most sanguine ex- pectations will be realized, and his highest ambition attained. 1, New Square, Lincoln s Inn, 24tk August, 1829. ANALYSIS. PART THE FIRST. OF THE NATURE AND KINDS OF COVENANTS, AND OF THE PARTIES THERETO. Page CHAP. I. — Of the Nature of Covenants 3 CHAP. II. — Of the several Kinds of Covenants. Sect. I. — Affirmative 19 Negative ib. Executed 21 Executory ib. Obligatory ib. Declaratory ib. Disjunctive or Alternative ib. Sect. II.- — Express 25 By what words created 27 Words of Obligation 28 Exception or Restriction 3 1 Recital 33 Proviso 36 Condition 37 Under Registry Acts 38 Words of indemnity in marriage settlements 39 Sect. III.— Implied 40 By what words raised 46 Words Demise 46 Grant 47 Bargain and sale 49 a x Analysis. Page Assign and transfer 49 Yielding and paying 50 Implied from the terms or object of the con- tract 55 Sect. IV.— Real 60 Inherent 66 Personal ib. Collateral, or in gross 69 Sect. V. — Dependent — Concurrent — and Mutual, or Independent ; and herein of the distinc- tion between covenants and conditions. . 70 1 . Where the mutual covenants go to the whole of the consideration on both sides 80 2. Where the act in consideration of which the money is to be paid precedes the day of payment 83 3. Where the mutual covenants go to a part only of the consideration on both sides 90 4. Where the day for payment of the money arrives before the act for which the money is to be paid can be performed 95 CHAP. III. — Of the Persons by and with whom .Co- venants MAY BE MADE. Sect. I. — With reference to capacity 107 I. In general ib. II. In particular cases ib. 1 . Idiots and lunatics ib. 2. Persons of weak mind 108 3. Aged persons 1 09 4. Drunkards ■. ib. "**5. Infants .' Ill 6. Feme coverte 112 7. Attainted or outlawed persons 113 8. Husband with wife 114 Sect. II. — With reference to the number and connexion of the parties 115 Of covenants several — joint — and joint and se- veral ib . Analysis. xi Page I. With reference to the liabilities of cove- nantors 115 1 . Several ib. 2. Joint 116 3. Joint and several 117 II. With reference to the rights of covenantees 122 1. Several 123 2. Joint 127 3. Joint and several 129 and herein ; of I. The persons to be joined as plaintiffs 130 1 . Where the interest is several ib. 2. Where the interest is joint 131 II. The persons to be joined as defendants .... 132 1 . Where the covenant is several ib. 2. Where the covenant is joint ib. 3. Where the covenant is joint and several 134 PART THE SECOND. OF THE GENERAL RULES FOR CONSTRUCTION OF COVENANTS. I. As to the intention 1 36 II. Where the words are equivocal 141 III. In support of the covenant 145 IV. As to the time allowed for performance ib. PART THE THIRD. OF PARTICULAR EXPRESS COVENANTS. CHAP. I. — O? Covenants for Reference to Arbi- tration 146 CHAP. II. — Of Covenants to surrender Copyholds 151 a 2 xii A nalij sis. Page CHAP. III. — Of Covenants to levy Fines 151 I . Of the different parts 1 . By whom to be levied 1 55 2. At whose costs 158 3. Of what term ib. 4. In what court 1 59 5. To whom to be levied 160 6. The kind of fine ib. 7. Of the proclamations ib. 8 Of the parcels ib. 9. The mode of describing the parcels 161 1 0. The declaratory clause 162 II. Who may take advantage of 164 III. Who bound by ib. IV. Of specific performance 165 CHAP. IV. — Of Covenants for Indemnity against Payment of Rent and Performance of Covenants 177 CHAP. V. — Of Covenants to insure. I. Nature of 183 II. Of the form of the covenant 188 III. What a breach of 189 IV. Of equitable relief 192 CHAP. VI. — Of Covenants for Payment of Rent. I. Of the object, &c. of the covenant 194 II. In case of fire, &c 197 III. Of equitable relief from payment in case of fire. . 1 98 IV. Where the landlord has received money on his insurance 202 V. Of relief at law from forfeiture on breach 204 VI. Of relief in equity from forfeiture on breach. . . . 205 VII. In case of bankruptcy 209 VIII. In case of insolvency. . 210 CHAP. VII. — Of Covenants for Payment of Taxes, Rates, &c. I. Land-tax 211 Analysis. xiii Page II. Where the premises have been improved in value 216 III. Consequences of omission to deduct 219 IV. Property-tax 220 V. Church and Poors' rates 222 CHAP. VIII. — Of Covenants for Production of , Deeds 224 CHAP. IX. — Of Covenants for Renewal. I. Of their construction . . . , 233 II. Of breach and performance 245 III. Of covenants for renewal by charitable found- ations, &c 246 IV. Of specific performance 248 V. Of relief in equity for covenantee 256 VI. Of the necessity of surrendering existing in- terests 263 VII. Of the expenses of renewal 264 CHAP. X. — Of Covenants to repair. I. In general 266 II. What premises within the covenant 268 III. Of the liability, at law, to repair where the pre- mises are destroyed by fire, &c 274 - IV. Of the liability, in equity, to repair where the premises are destroyed by fire, &c 276 V. What a breach 284 VI. Period of bringing the action 287 VII. Of specific performance 293 VIII. Of equitable relief from forfeiture on account of breach 299 CHAP. XL— Of Covenants for Title 304 Sect. I. Of the covenant for seisin 306 Sect. II. Of the covenant for good right to convey 310 Sect. III. Of the covenant for quiet enjoyment. 1 . Where the covenant is unqualified 312 2. Where the covenant is qualified 323 3. What a breach 326 xiv Analysis. Sect. IV. Of the covenant for indemnity against incum- brances 330 Sect. V. Of the covenant for further assurance. 1. Object, &c. of the covenant 340 • 2. What a breach 342 3. What acts may be required 343 4. Of specific performance 353 Sect. VI. Of equitable relief 354 Sect. VII. With reference to their absolute or qualified cha- racter 355 1 . In what cases a preceding qualified cove- nant will limit a subsequent general cove- nant 358 2 . In what cases a subsequent limited covenant will qualify a preceding general covenant . . 369 Sect. VIII. Against whose acts the vendor is bound to co- venant 383 1 . Where the vendor was himself a purchaser for a valuable consideration, and obtained covenants for title 385 2. Where the vendor was not himself a pur- chaser for a valuable consideration 388 Sect. IX. What persons are bound to enter into covenants for title 399 CHAP. XII. — Of Covenants in restraint of assigning OR UNDERLETTING WITHOUT LlCENSE. I. Of the object, &c. of the covenant 404 II. What a breach. 1 . Under-lease 406 i 2. Letting lodgings 408 3. Disposing of part of the premises 409 4. Parting with possession under an agreement ib. 5. Deposit of deeds 410 6. Advertisement for sale ib. 7. Bequest 412 8. Execution on a warrant of attorney 415 9. Extent 418 10. Bankruptcy ib. A nali/. sis. NN 1 1 . Taking benefit of insolvent act 419 12. Assignments by executors, &c 421 III. Consequences of license once granted 424 IV. Whether it runs with the land 426 V. Of the kind of license required 427 VI. Waiver of forfeiture ib. VII. Of equitable relief against forfeiture for breach 429 VIII. Whether it is an usual covenant 430 CHAP. XIII. — Of Covenants restraining the ex- ercise of particular Trades 44.) PART THE FOURTH. OF THE LIABILITIES AND RIGHTS ARISING FROM COVENANTS, AT COMMON LAW, AND BY VIRTUE OF THE STATUTE 32 HEN. VIII. CHAP. 34. CHAP. I. — Of the Liabilities at Common Law. Sect. I. Of the covenantor 448 Sect. II. Of the heir ib. Sect. III. Of the devisee 452 Sect. IV. Of the executor or administrator ib. Sect. V. Of the assignee ; with preliminary remarks on covenants running with the land 460 1 . Where the assignee is bound without being named 465 2. Where the assignee is bound by being named 471 3. Where the assignee is not bound although named 473 4. What persons are comprised within the term " assignee " 480 5. Whether entry is necessary to constitute a party an assignee 486 xvi Analysis. Page 6. Duration of the assignee's liability ; and herein of the duration of the liability of the lessee 489 7. Whether the assignee is liable after assign- ment for breaches before assignment 495 8. What a fraudulent assignment 503 9. Liability of assignees of bankrupts 506 CHAP. II. — Of the Rights at Common Law. Sect. I. Of the covenantee 513 Sect. II. Of the heir ib. Sect. III. Of the devisee 519 Sect. IV. Of the executor or administrator 520 Sect. V. Of the assignee 522 CHAP. III. — Of the Liabilities and Rights under the Statute 32 Hen. VIII. c 34., relating to Grantees of Reversions ........ 527 PART THE FIFTH. OF THE REMEDIES AND RELIEF INCIDENT TO COVENANTS. CHAP. I. — Of the Remedy at Law 543 And herein, of Bonds for performance of Co- venants 547 CHAP. II.— Of Relief in Equity 555 Sect. I. For the covenantee 556 1 . By way of specific performance ib. 2. By way of injunction to restrain breach . . 562 Sect. II. For the covenantor. By way of relief against forfeiture 565 Analysis. xvii PART THE SIXTH. OF COVENANTS VOID IN THEIR CREATION ; AND OF THE MEANS BY WHICH COVE- NANTS ORIGINALLY VALID MAY BE DIS- CHARGED OR SUSPENDED. CHAP. I. — Of Covenants void in their Creation. Sect. I. At Common Law. Page 1. With reference to the incapacity of the contracting- parties 5GS 2. With reference to the object of, or conside- ration for the covenant ib. 3. With reference to the deed or estate on which the covenant depends 573 Sect. II. By Statute 58 ] CHAP. II. — Of the Means by which Covenants ori- ginally valid may be discharged or sus- pended. Sect. I. By the act of God 582 Sect. II. By the act of law. 1 . Common law 585 2. Statute 587 Sect. III. By the acts of the parties. 1 . Of the covenantor 590 2. Of the covenantee 59 1 3. By their mutual act : Intermarriage 598 Sect. IV. By the acts of strangers 601 TABLE OF CASES CITED Note. — The letter " v." always follows the name of the plaintiff; '* and " the name of the defendant. A. Page Abbott and Fuller 22 1 . 580 Acklane and Norton 49 1 Acton and Bourman 486 Acton and Cage, or Gage.. 598 Acton v. Peirce 599 Acton v. Symon 544 Adams and Daniel 170 Adams and Greenaway .... 408 Agar v. Macklew 148 Aggas and Trevett 593 Ainsley and Pindar 197 Albany's case 592 Alchorne v. Saville 29 Aldborough (Lord) v. Lord Newhaven 106 Alden v. Blague 59 1 Aldworth v. Hutchinson .... 6 Alto v. Henning 531 Allen v. Babbington 100 Allen and Compton 274 Allen v. Harding 297 Allen v. Hilton 258 Allen and Hunt 318 Allen v. Thorn 314 Allen v. Waldegrave 27 Alley v. Deschamps 556 Allmgton (Lord) and Napper, 345 Ameers and Fisher 49 1 Amfield v. White 211 Amps and Robinson 139 Anderson v. Bailey 183 Page Anderson v. Martindale. . . . 127. 128. 132 Anderson and Sweet .. 233 Andrew's case 46. 450 Andrew's case of Graye's Inn, 319 Andrew v. Hancock . . . .219. 222 Andrew v. Pearce 459. 574 Andrews and Cowper. . . . 72. 96 Andrews v. Eddon 353 Andrews v. Ellison 28. 30 Andrews v. Needham 585 Andrews v. Paradise 329 Andrews v. Tanner 331 Angus and Trevett 593 Anon. 2 Ch. Ca. 19 355 Anon. 2 Ch. Ca. 53 27. 165 Anon. Comb. 211 211. 215 Anon. Dal. 8 74 Anon. Dy. 14, a 449 Anon. Dy. 19, b 20. 31 Anon. Dy. 33, a. . .275. 284. 285 Anon. Dy. 44, a 454 Anon. Dy. 45, a 411 Anon. Dy.45,b 517 Anon. Dy. 65, b 422. 423 Anon. Dy. 152 425. 426. 427 Anon. Dy. 255 370 Anon. Dy. 257, a 42 Anon. Dy. 324 274 Anon. Dy. 324, b 458 Anon. Dy. 368, a 451 Anon. 3 Dy. 255 338 Anon. 1 Freem. 450 313 XX Tabic of Cases cited. Page Anon. Godb. 120 70 Anon. Godb. 270 539 Anon. Jenk. 262 123 Anon. Keilw. 34, b 595 Anon. T. Jo. 109 506 Anon. 3 Leon. 1 537 Anon. 3 Leon. 51 525. 587 Anon. 3 Leon. 71 322 Anon. Lit. 32 ; Hetl. 12 600 Anon. Loftt 78 Anon. 4 Mod. 148 222 Anon. 6 Mod. 239 113 Anon. 1 1 Mod. 45 289 Anon. 12 Mod. 384 472. 503 Anon. 12 Mod. 399 26 Anon. Mo. 44 455 Anon. Mo. 93 485.537 Anon. Mo. 159 251.471.534 Anon. 3 Salk. 3 428 Anon. 2 Show. 77 . , 196 Anon. 2 Show. 202 100 Anon. 1 Sid. 447.. 42. 43. 52. 491 Anon. Skin. 39 139 Anon. Skin. 367 538 Anon. Sty. 31 544 Anon. Sty. 67 313.320 Anon. 1 Vent. 344 599 Anon. 2 Vent. 214 270 Anon, and Corus 319 Anon. v. Davis 542 Anon, and Ferguson 266 Anon, and Jenks 451 Anon, and Ratcliff 319 Anon, and Willett 518 Anvert v. Ennover 86 Applebee and Edwards 345 Appleton v. Binks 27 Archdeacon v. Jennor 74 Archer and Poole 274 Ards v. Watkin 492. 495 Armitage and Pilling 255 Arnold and Lee 542 Arnold and Smith 267. 471 Arnott and Colchester 263 Arnsby v. Woodward 428 Arran (Count of) v. Crisp . . 211 Arthur v. Vanderplank 491 Arthur v. Vyvyan,|41. 43. 52. 195. 468.477.519.533.534 Alton and Boarman 486 Page Arundel ( Earl of) and Cook, 65. 68. 449. 475 Ashford and Homer 271 Ashton v. Martyn 322 Ashurst v. Mingay 538 Ashworth v. Lord 25 Asters and Warren 100 Astley v. Weldon 549 Aston and Burman 486 Aston and Nash .. 31 1 . 343. 583 Athowe v. Heming 531 Atkins and East India Com- pany 26 Atkins and Farneham,l 11.1 12.586 Atkins v. Uton, or Urton . . 344 Atkins and Watson 218 Atkinson v. Coatsworth .... 6 Atkinson and Digby, 187. 284. 484 Atkinson and Dodd 6 Atkinson and Ritchie.. 104. 569. 588. 602 Atkinson v. Rolfe 350 Atlee and Fane 429 Attersoll v. Stevens 537 Attoe v. Hemmings . . . .531. 537 Attorney General v. Morgan, 329. 577 Atwood v. Lamprey 220 Audley and Glinister 308 Aunts and Robinson 139 Auriol v. Mills 42. 492 Austin v. Moyle 586 Austin and Perrot 454 Avery and Wood 287 Awder and Noke . .470. 525. 574 Ayers and Fain 23 1 . 348 Ay let v. James 210 Aylet v. Williams 575 Ayliffv. Scrimshire 594 Aynesly and Errington. .297. 558 B. Babbington and Allen 100 Baber v. Palmer 593 Babington v. Sheldon 37 1 Bach v. Owen 99 Bachelourc v. Gage, 42. 43. 455. 491. 494 Table of ( 'uses cited. XXI Pa e Badcock and Sadlers' Com- pany 187 Baglehole, ex parte 420 Bailey and Anderson 183 Baker v. Bulstrode 350 Baker v. Child 165. 175 Baker and Heath 196 Baker and Holtzapffel, 198.201. 203. 279. 280 Baker and Shackle 150 Baker and Smith 495 Baker and Wheeler ib. Baker v.White 571 Balders and Readshaw . . 22 1 . 580 Balfour v. Welland 244 Ballet and Muscot 308 Ballett and King 451 Bally v. Wells, 186.427.467. 470 Banyster v. Trussel 492 Barber v. Fox 449 Barber and Lndford .... 568. 585 Barclay and Hill, 206. 253. 292. 294.300.301.303.423.430 Barclay v. Raine ..227. 231. 349 Barefoot and Hopwood .... 215 Barford v. Stuckey 8 Barker v. Darner, or Dormer, 531 . 533 Barker v. Fletwell 595 Barker v. Hodgson, 583.588. 602 Barker v. Keete 51 Barker v. Thorold 26 Barkley and Jones 105 Barnard v. Godscall 494 Barnard v. Michell 553 Barnard (Lord) and Vane . . 331 Barnes v. Smith 597 Barnfather v. Jordan 504 Barnfather v. Lee 216 Barret v. Blagrave 564 Barrett v. Duke of Bedford 216. 271. 273 Barrington's case 213 Barrington v. Horn 165 Barry v. Stanton 412 Bartlett v. Hodgson 39 Barton v. Fitzgerald 34. 49. 137. 379 Barton v. Freswell 34 Barton and Thre'r 542. 585 Page Baity v. Herenden 165 Bascawin v. Cook . .70. 476. 589 Baskervil and Suffield 37 Basset v. Kerne 22 Bateman v. Murray 234. 259 Bath (Earl of) v. Earl of Brad- ford 453.460 Baxter v. Nichols 133 Baylie v. Hughes 313 Bayly and Drew 520 Bavlv v. Leominster (Corpo- ration of) 259 Baynham v. Guy's Hospital 144. 234. 240. 242. 259 Beal v. Brasier 537 Bean and Ithell 402 Beany v. Turner 76 Beardmore v. Fox 27 1 Beaufort (Duke of) and Maule 442 Beck d. Hawkins v. Welsh. . 345 Beckwith's case 124 Bedford (Duke of) and Bar- rett 216.271.273 Bedford and Dommett 421 Bedford v. Hall 47 Bedford Level and Redshaw, 255 Beely v. Purry 522. 539 Belcher v. Hudson 600 Belcher v. Sikes 366 Belfour v. Weston 197. 198 Bellamie and Walker 427 Bellasis v. Burbrick 486 Bellingham v. Lowther .... 153 Bemboe and Wade 9 Bennet's case 349. 350. 352 Bennet and Hughes 366 Bennett v. Womack .... 2 1 9. 43 1 Benny and Turner 153. 158 Benson and Turner .... 153. 158 Bentley and Rawstorne .... 261 Berkeley v. Hardy 8 Bern and Hardy 552 Berry v. Taunton 408.413 Berry v. Young 231. 232 Best v. Brett 34 Betesworth v. Dean and Chap- ter of St. Paul's 240. 249 Bettisworth v. Campion .... 78 Bevan and Doe d. Goodbe- here 410.414. 418.420 \ X 1 1 Tabic of Cases cited. Page Bewicke and Oldman 86 Bickerstaffe and Hayes ..46. 48. 100. 313. 314. 382 Bickford v. Sellers 591 Bickford and Warn 327. 342 Biddell v. Leeder -580 Biddlesfbrd v. Onslow 537 Bidwell v. Lethbridge 17. 133 Biggs and Swanton 208 Bignold and Ellison 29 Bilby and Shann 153 Binks and Appleton 27 BirchamandWithers,123.125.131 Bird, or Burgh, and Harper, 40. 43. 52. 55. 532 Bird v. Randall 547 Birkhead and Sangster, 271. 273 Birkley v. Presgrave 132 Bishop v. Redman 33 Blackburn and Pym 274 Blackburne v. Chinnery. .68. 486 Blacklowand Humlock,20. 76. 78. Blackwell v. Nash 76 Blagrave and Barret 564 Blague and Alden 59 1 Blake'scase ib. Blake and Eden ib. Blake and Hastings 492 Blamire and Carlisle (Mayor of) 181.483 Bland and Johnson 549 Blandford (Marchionessof ) v. Marlborough 215 Blicke v. Dymoke 349 Bliss and Doe d. Boscawen, 425. 429 Bloxam v. Walker 317 Blunck and James 475 Blunden and Brown 268 Boardman v. Mostyn .... 253. 44 1 Boarman v. Arton 486 Bodinner and Jones 197 Boen and Yates 108 Boghurst and Prebble 243 Boldney v. Curteys .... 161. 344 Bolland and Simmonds .... 460 Bolton and Chesterfield, 26. 188. 274. 275 Bolton (Lord) and Deverell, 399. 401 Page Bolton and Franco 569 Bolton v. Lee 118 Boone v. Eyre 80. 90. 102 Booth and Cooke. . 144. 233. 241 Bord v. Cudmore 533 Bordenave v. Gregory 106 Bosanquet and Williams, 486. 489 Bottorne and Stafford 349 Boulney v. Curteys .... 161. 344 Bouls v. Horton 69 Boulter v. Ford 140. 587 Boulton v. Canon 458. 494 Bourdillon v. Dalton 507 Bourman v. Acton 486 Bowles and Splidt 68 Boyes and Spencer 346 Boyle v. Lysaght 234 Bozon v. Farlow 431 Brace and March 494 Bracebridgev. Buckley . .294. 302 Bradbury v. Wright 214 Bradford (Earl of) and Bath (Earl of) 453. 460 Bradshaw's case 311 Bradshaw and Salman . . 307. 311 Bragg v. Nightingale.. 75. 78. 291 Bragg v. Wiseman 42. 459 Brailsford v. Parsons 33 Bramah and Wheeler 509 Branch v. Ewington . . . .26. 1 12 Branch and Milnes,65.68. 476. 485 Brand and Drage 552 Brandon and Flint, 294. 298. 559 Brandwood and Whitfield .. 216 Brasier v. Beale 537 Brason v. Dean 588 Brathwait and Lampleigh . . 73 Brecknock Canal Company v. Pritchard 275.284 Bree v. Holbech 340 Brett and Best 34 Brett v. Cumberland.. 9. 10. 31. 44. 133.1 35. 455. 491 . 494. 522 Brett and Pratt 563 Brewer v. Hill 406. 470. 485 Brewster v. Kidgell, Kidgil, or Kitchell 65. 211. 475. 588 Brice v. Carre 28. 454 Brick v. Whelley 170 Bridge and Pit-ot 137. 196 Tabic of Cases cited. xxm Page Bridgeman v. Green 1 09 Bridges v. Hitchcock 235. 250 Bridgman v. Lightfoot 458 Briggs v. Callonel 89 Bright v. Cowper 601 Brisbane v. Dacres 219 Briscoe and Gray 308 Briscoe v. King 37 Bristol (Dean and Chapter of) v. Guyse 458 Bristow v. Bristowe 537 Brittin v. Vaugh 503 Brocas's case 78 Brograve and Fortescue .... 591 Brome and Griffiths 316 Bromefieldv. Williamson, 284. 484 Brook v. Bulkeley 256 Brooke v. Hewitt 251 Brookesby and Cave 319 Broome v. Robinson 507 Broughton v. Conway . . 138. 369 Brown v. Blunden 268 Brown v. Brown 374 Brown and Church . . 53. 384. 405. 406. 410. 421. 436. 439. 485 Brown and Cox 422 Brown and Keble 352 Brown and Penry's Adminis- tratrix 268 Brown v. Quilter. . 198. 199. 202. 276.278. 280. 329 Brown and Southampton (Lord), 9 Brown and Thompson, 84. 105.591 Brown and Tomlinson .... 537 Browne and Hill 317 Browne v. Honywood .... 48. 69 Browne v. Raban 436 Browne v. Walker 75. 78 Browning v. Honywood . . 48. 69 Browning and Seaman 329 Browning v. Wright, 48. 358. 364. 385. 387 Brownlow and Chandos (Duchess of) 234 Brown went and Lamb 350 Brudnell v. Roberts, 284. 459. 518. 585. Brummell v. Macpherson... . 425 Brushfield and Howes 336 Bryan v. Woolley 170 Bryant and Harris ........ 263 Page Brydges v. Chandos 154 Bryson v. Whitehead 572 Buckhurst (Lord) v. Fenner 385 Buckhurst and Mayo 472 Buckingham (Duke of) and Ward 564 Buckland v. Hall, 195. 252. 253. 405. 491 Buckle and Cannel 600 Buckle and Reynolds 197 Buckley and Bracebridge,294. 302 Buckley and Holmes 525 Buckley and Knight 494 Buckley v. Pirk . . 267. 458. 466 Buckley v. Williams 314 Buckly and Kighly 494 Buckly and Kitchin 534. 536 Buckly and Twiford 597 Bugbv and Crusoe d. Blen- cowe, 406. 408. 414. 416. 485 Bulcock and Harrison 222 Bulkely and Brook 256 Bull v. Wheeler 458 Bullard and Rhodes, 59. 267. 308 Buller and Mortlock 559 Bullock v. Dodds 114 Bullock v. Dommitt, 188. 274. 275 Bullock and Reade 593 Bui strode and Baker 350 Bulstrode v. Gilburn 544 Bumstead and South Sea Company 26 Bunn v. Guy 572 Bunn and Portmore (Earl of) 484. 525. 539. 576 Buntley and Twyford 597 Burbrick and Bellasis 486 Burnell and Inchiquin (Earl of) 233 Burnett v. Lynch, 5. 11. 14. 46. 50. 494. 501 Burman v. Aston 486 Burrell, or Burwell, v. Harri- son 296 Burrell and Routledge .... 7. 86 Burrv and Windsor (Lord), 412. 413. 421 Bury and Petrie 18. 1 32 Bush v. Calis, or Coles, 32. 42. 469 Bushell v. Lechmore 197 Butcher and George 35 MV Table of Cases cited. Page Butcher and Harllet 291 Bute (Lord) v. Grindall 222 Butler v. Swinerton .... 337. 338 Butter and Scould 560 Butterfield v. Marshall . . 59. 303 Buxton v. Lister 560 Buxton v. Monkhouse . .221. 580 Byrne v. Pattinson 85 C. Cabell v. Vaughan 1 33. 1 35 Cadwallader and Thomas, 79. 83. 95. 103. 106 Caffin and Milward 222 Cage v. Acton 598 Calcraft and Wadman, 205. 207. 303. 423 Cale and Dowse 268. 537 Calis or Coles and Bush, 32. 42. 469 Callonel v. Briggs 89 CallyandPet 158 Calthorpv Hey ton 322 Calvert v. Gason 234 Campbell v. French ...... 1 05 Campbell v. Jones .. 90. 91. 95 Campbell v. Lewis, 305. 316. 470 524 Campden v. Moreton, 199. 202. 278. 280 Campion and Bettisworth . . 78 Canham v. Rust 70. 525 Cannel v. Buckle 600 Canon and Boulton .. 458.494 Capenhurst v. Capenhurst, 554. 574 Capes v. Hutton 573 Carith v. Read 595 Carivil or Carvell v. Edwards 594 Carlen v. Drury 149 Carlise (Mayor of) v. Bla- mire 181. 483 Carne v. Legh 1 35 Carpenter v. Cresswell .... 93 Carrand Hill 5.28. 164 Carr and Holies 5. 34. 50 Carre and Brice 28.454 Carre and Johnson 593 Carrel v. Read 595 Page Carrington and Stevens .... 32 Carter v. Cummins 198 Carter and Doe d. Mitchin- son 404.406. 416.421 Carter and Peeter 1 45 Carthage v. Manby 592 Casbard and Hellier 52 Case v. Stephens 223 Cass v. Rudele 355 Castilionv. Smith's executors, 458 Catesby and Mountford, 313. 333 Catterton and Lassels 347 Cavan (Lady) v. Pulteney . . 336 Cave v. Brookesby 319 Cazenove and Hall 1 04 Ceeiy and Richards 151 Chadwick and Kirkham .... 245 Chalie and Nichols 1 49 Chamberlain and Cox 465 Chamberlain v. Ewer 311 Chamberlain v. Williamson . . 521 Champernon v. Champernon, 214 Champion and Vivian, 289. 516 Chancellor v. Poole, 17.489.495. Chandler and Horn Ill Chandler and Tomles, or Toomes 37 Chandos (Duchess of) v. Brownlow 234 Chandos and Brydges .... 154 Chandos (Duke of) and J a- labert 406. 485 Chaplain v. Southgate .... 318 Chaplin and Tatem 467 Chapman v. Dalton 64. 251 Chapman and Somerville . . 247 Chappell and Ware 78 Charles v. Rowley 234 Charlton v. Driver 265 Charnock and Thompson, 147. 149 Chatterton and Lassels .... 347 Chaworth v. Phillips, 534. 542. 585 Cheetham v. Hampson .... 267 Cheetham and Leeds . . 203. 281 Cheney and Landydale .... 459 Cheney and Williams. . 254. 410 Cheshire and Large 82. 103 Chesman v. Nainby 57 1 Chesterfield v. Bolton, 26. 188. 274, 275 Table of Cases cited. XXV Page Child and Baker .... 165. 175 Child and Cooker 7 Child and Fenny d. Easthara 151 Chilliner v. Chilliner 548 Chinnery v. Blackburne, 68. 486 Chinsley v. Langley 444 Church v. Brown,' 53. 384. 405. 406.410. 421. 436. 439. 485 Chute and Darcy 601 Chute and Selby 322 Clanrickard's case 137 Clapham v. Moyle 36 Clark and Moore 270. 289 Clark v. Thomson 600 Clarke and Cranston 213 Clarke and Doe d. Lockwood 421 Clarke v. Peppin 246 Clarke v. Samson 46 Clarke v. Scroggs 587 Clayton v. Kinaston 594 Clayworth and Cooke, 109. 110 Clement v. Henley 7.18. Clerk v. Crow 572 Clerke and Severn 34 ClipshamandEccleston, 127. 131. 133 Cloake v. Hooper 47. 328 Clough v. Clough 133 Coates v. Hewit 545 Coatsworth and Atkinson . . 6 Cock and Cockson 467 Cock v. Curtoys 99 Cock v. Richards 571 Cockson v. Cock 467 Codrington and Williamson, 28 Coke and Treackle 1 94. 497 Colchester v. Arnott 263 Colcraft and Cooke 67. 457 Cole's case 350. 469 Cole v. Gibson 35 Cole and Kerrison 580 Cole and Pordage, 30. 37. 55. 98 Cole v.Robins 109 Coleby and Russen 99 Colegrave v. Manby 265 Coleman and Morris 572 Coleman v. Painter 327 Coleman v. Sherwin .... 47. 1 1 8 Coleman v. Winch 452 Coles v. Kinder 346 Page Collett and Shaw 231 Collins v. Collins 553 Collins v. Gibbs 89 Collins v. Plumb, 5.478.513. 565 Collins v. Sillye 410.426 Collins v. Thoroughgood . . 458 Collison v. Lettsom 479 Collyer and Devon 491 Comand and Hailing 351 Comerford and Lucas, 180. 294. 297. 483 Compton v. Allen 274 Compton and Foord 255 Coinpton and Kitchin, 534. 536 Conan v. Kemise, 229. 267. 426. 466.481.495 Congham v. King, 229. 267. 426. 466.481.495 Congleton (Mayor of) v. Pat- tison, 186. 443. 461. 468. 472. 478 Connard and Hallings .... 351 Conwav and Broughton, 138. 369 Cook v. Arundel (Earl of), 65. 68. 449. 475 Cook and Bascawin, 70. 476. 589 Cook v. Harris 486 Cook v. Jennings, 84. 105. 591 Cooke v. Booth . . 144. 233. 241 Cooke v. Clayworth .. 109. 110 Cooke v. Colcraft 67. 457 Cooke v. Cooke 562 Cooke v. Founds or Fownes, 381 Cooke and Wotton .. 124. 353. 514 Cooker v. Child 7 Cooper and Monk, 197. 198. 275 Cooper v. Twibill 472 Cooper v. Wyatt 42 1 Cooper v. Young 197 Coopers' Company andWildey,220 Cope and Glover 538 Cope and Hunt 197 Copeland v. Stephens, 493. 507. 512 Copping v. Slay maker or Stey- maker 407 Corbet and Ewer 402 Corder and Mason 442 Cordwent v. Hunt .... 1 05. 592 b XXVJ Table of Cases cited. Page Cornbury v. Mkklleton .... 562 Cornwall and Thrale 531 Corporation of Leominster and Bayly 259 Corrie and Onslow, 194. 418. 493.499.504.506. 512 Corus v. 319 Cory v. Cory 110 Coslake v. Till 561 Cotter v. Layer 1 65 Cotterell v. Hooke .... 210. 545 Courthope and Gibson .... 511 Cowell and Jodderell 491, 2 Cowper v. Andrews .... 72. 96 Cowper and Bright 601 Cowper v. Pollard 313 Cox v. Brown 422 Cox v. Chamberlain 465 Cox v. Higford 303 Cragg and Fitzgerald ...... 593 Cragg v. Holme 110 Crane v. Drake 402 Crane v. Taylor 248 Cranston v. Clarke 213 Craven v. Tickell 299 Cray v. Mansfield 388 Crayford v. Crayford 366 Cresswell and Carpenter. ... 93 Crew and Furnival, 236. 248. 471.521 Cripps and Ingledew or In- cledon 548 Crisp and Arran (Count of) 211 Crisp v. Price 143 Crispe and Lloyd, 422. 426. 427. 442 Croft and Folkingham, 405. 432. 441 Cromwell's case 72 Crop v. Norton 562 Crosberne and Osborne .... 131 Crosse v. Young 313.319 Crow and Clerk 572 Crowle and Goodwin 552 Crusoe d. Blencowe v. Bugby 406. 408. 414. 416. 485 Cud v. Rutter 560 Cudmore and Bord 533 Cudworth and Elwick . . 76. 88 Cudworth and Feltham .... 72 Page Cumberland and Brett, 9. 10. 31. 44.133.135.455.491.494.522 Cuming v. Hill 26. 112 Cummins and Carter 198 Currie v. Goold 220 Curteis and Marsh 409. 428 Curteys and Boldney. . 161.344 Curtise and Goldney, 158. 160. 1*61. 344. 351 Curtoys and Cock 99 Custance and Derisley, 64. 449. 482 Cuthbertson and Grey .... 472 Cutter v. Powell, 198.201.276 Cuyler and White 112 1). Dacre (Lord) and Rees .... 249 Dacres and Brisbane 219 Dale and Westerdell 489 Dalston v. Reeve 197 Dalton and Bourdillon .... 507 Dalton and Chapman . . 64. 251 Damer and Barker .... 531 . 533 Danby v. Gregg 161.164 Danvers and Hunt 322 Daniel v. Adams 170 Darcy v. Chute 601 Darwin and Russell . . . * ... . 237 Dashwood and Musgrave . . 337 Daubuz and Pye 345 Davenant v. Salisbury (Bi- shop of ) 215. 477 David and James 150 Davids and Goodrightd. Wal- ter 428 Davidson v. Gwynne 104 Davie v. Sacheverell 318 Davies and Gibbons 599 Davis and 542 Davis v. Florence 255 Davis and Heeding 599 Davis v. Hone 556. 551 Davis v. Jones 173 Davis v. Mason ., 572 Davis v. Mure 105 Davis v. Oliver 234 Davis and Roe d. West .... 205 Table of Cases cited. xxvn Page Davis v. Taylors' Company. . 240 Davis v. West 301. 566 Davy v. Matthew 535 Davy v. Pepys 451 Dawson v. Myer 76 Dawson and Preston 158 Day and Wood 290 Dean and Brason 588 Dean v. Newhall 593 Dean v. Tracy 589 Debar and Taylor 344 Deering v. Farrington, 40. 46. 50. 382. 513 De Minckwitz v. Udney. . . . 253 Denby v. Moore 222 Dennett and Descarlett .... 302 Derby (Earl of) v. Taylor . . 485 Derisleyv.Custance, 64. 449.482 Desbrough and Vandenanker 251 Descarlett v. Dennett 302 Deschamps and Alley 556 Deux v. Jefferies 594 Deverell v. Lord Bolton .... 399. 401 Deveuille and Griffin 108 Devon v. Collyer 491 D'Evreux and Winter .. 164. 166 Dickenson and Tayleur .... 542 Digby v. Atkinson 187. 284. 484 Diggles and Gretton 487 Dix and Hore 21 Dobie and Hill 508 Dod and Hamond 313 Dodd v. Atkinson 6 Dodd v. Innis 101 Dodds and Bullock 114 Dodemede and Valliant, 499. 504 Doe v. Payne 407 Doe d. Bisli v. Keeling, 137. 444 Doe d. Boscawen v. Bliss . . 425 Doed. Cheerev. Smith, 411. 418. 427 Doe d. Davis v. Elsam .... 444 Doe d. Ellis v. Sandham, 197. 276. 296 Doe d. Gaskell v. Spry 444 Doe d. Goodbehere v. Be- van 410.414.418. 420 Doe d. Hitchins v. Lewis, 206. 208 Doe d. Holland v. Worsley, Page 407. 409 190 419 421 483 404. 421 292 Doe d. Knight v. Rowe .... Doe d. Lloyd v. Powell .... Doe d. Lockwood v. Clarke Doe d. Maslin v. Roe Doe d. Mitchinson v. Carter, 406. 416. Doe d. Morecraft v. Meux, Doe d. Duke of Norfolk v. Hawke 416 Doe d. Pitt v. Hogg 410 Doe d. Pitt v. Laming, 191. 408. 410 Doe d. Pitt v. Shewin . . 189. 192 Doed. Spencer v. Godwin, 137. 142 Doe d. Vickery v. Jackson . 286 Doe d. Whitfield v. Roe 205 Doe d. Willson v. Phillips.. 425 Doelittle and Phillips 204 Dolaret v. Rothschild 560 Dommett v. Bedford 421 Dommitt and Bullock .... 188. 274. 275 Donnithorne and Enys, 117. 119. 133. 135 Dormer and Barker 531. 533 Douse v. Cale, or Earl. .268. 537 Dowling v. Mill 240. 255 Downing and Hicks 495 Dowson and Merceron .... 495 Drage v. Brand 552 Drake and Crane 402 Drake v. Mayor of Exeter. . 251 Draper and Gawden 593 Drew v. Bayly 520 Driver and Charlton 265 Drury and Carlen 149 Drury v. Molins 563 Dudley v. Folliott 316 Duke and Northcote 424 Dulwich Hospital and Taylor, 247 Dumper v. Syms, or Dum- por's case. .413. 425. 426. 438 Dunlapp and Lyddall 458 Dunnage v. White 110 Dunton and Machel 542 Duntze and Terry 99 Durant and Spencer .. 127. 131 Dyche and Fletcher 150 b 2 XXV111 ' ruble of Cases cited. Page Dyke v. Sweeting, 305, 449. 452 Dymoke and Bliekc 349 Earl and Douse 268. 537 East v.Thornbury 219. 222 East India Company v.Atkins, 26 East India Company and Hodgson 328 East India Company and Ho- tham 84. 105. 591 East London Waterworks and Thresher 270 East Skidmore v. Vaudstevan, 8 Eaton v. Jaques 486.488 Eaton v. Lyon, 144.242. 258. 302 Eccleston v. Clipsham, 127. 131. 133 Eddon and Andrews 353 Eden v.Blake 591 Edgington and Morris .... 329 Edney and Jones 472 Edwards v. Applebee 345 Edwards and Carivel, or Car- veil 594 Edwards and Elliot 416 Edwards v. Morgan, 195.491. 539 Edwards and Morgan ..221. 587 Edwards and Palmer . . 229. 489 Edwards and Perry 317 Eidsly and Samways 37. 72 Elliot v. Edwards 416 Elliot v. Merriman 402 Ellis and St. Alban's (Duke of) 28. 31 Ellison v. Andrews 28. 30 Ellison v. Bignold 29 Elsam and Doe d. Davis. . . . 444 Elswoith and Norris 17. 51 Elwick v. Cudworth 76. 88 Ely (Dean and Chapter of) v. Stewart 293 Emery and James, 123. 125. 130 Emery v. Wase 170 Ennover and Anvert 86 Enys v. Donnithorne, 117. 119. 133. 135 Errington v. Aynesly ..297. 558 Page Errington and Northumber- land 137. 364 Essex and Tisdale 313. 319 Evans and Richardson .... 427 Evans and Sackvill 458 Evans and Stone 489 Evans v. Vaughan 326 Evans v. Walshe 250 Eve and Kimpton, 17. 284. 484. 563 Evelyn v. Raddish 286 Everard v. Hopkins 78 Evers v. Strickland 9. 10 Ewart and Milbourn 599. 601 Ewer and Chamberlain .... 311 Ewer v. Corbet 402 Ewington and Branch .... 26. 112 Ewre v. Strickland 9 Exelby and Lea 106 Exeter (Mayor of) and Drake 251 Eyre and Boone 80. 90. 102 Eyre and Hutton 593 Fain v. Ayers 231.348 Fane v. Atlee 429 Farlow and Bozon 431 Farneham v.Atkins, 111. 112. 586 Farrel and Whitmel 557 Farrington and Deering, 40. 46. 50. 382. 513 Faulderv. Silk 108 Featherstonhaugh v. Fenwick 253 Feilder v. Studiey 375 Fellowes and Wynne 597 Feltham v. Cudworth 72 Fenner and Buckhurst (Lord) 385 Fenning and Half hide .... 148 Fenny d. Eastham v. Child . . 151 Fenton v. Holloway 109 Fenwick and Featherston- haugh 253 Ferguson v. 266 Ferrers v. Newton 137 Ferry v. Williams 104 Field and Hancock 592. 593 Field and Yea 232 Fielding and Phillips 106 Tabic of Cases cited. xxix Page Fildes v. Hooker 5b' I Finch v. Earl of Salisbury . . 256 Fisher v. Ameers 491 Fisher and Huddy 45 Fisher and Lathwell 21 Fisher and Martindale 1 04 Fisher and Umble 196 Fitzgerald and Barton, 34.49. 137. 379 Fitzgerald v. Cragg, or Trant, 593 Fitzroy and Osmond 108 Fletcher v. Dyche 150 Fletcher and Gylbert ...... Ill Fletcher and Kurd 325 Fletcher v. Pynfett 153 Fletvvell and Barker 595 Flint v. Brandon . . 294. 298. 559 Florence and Davis 255 Florence and Tanner, 251. 255. 47 1 Foach and Lydiatt 247 Foley and Moore, 144. 234. 237. 244 Folgham and Green 572 Foljambe and Ogilvie 388 Foljambe and White 401 Folkingham v. Croft, 405. 432. 441 Folliott and Dudley 316 Foord and Hayes, d. Foord, 599 Foord v. Wilson 137. 362 Foote and Tritton 237. 249 Ford and Boulter 140. 587 Ford v. Compton 255 Ford v. Tiley 245. 595 Fordley's case 22 Forte v. Vine 319 Fortescue v. Brograve 591 Forth and Lewyn 323 Foster v. Mapes 317 Foster and Norman, 312. 318. 365. 375 Foster v. Pierson 328 Fothergill v. Walton 84. 90 Foundling Hospital and Ma- cher 425. 426. 446 Founds, or Fownes, and Cooke 381 Fountain v. Gnales, or Gua- vers 454 Fowle v.Welsh 141.317 Fox and Barber 449 Page Fox and Beardmore 271 Fox and Hitchcox 74 Fox v. Swann 414 Fox and Whitchcot, 74. 425. 428 Frame and Merrill . . 45. 46. 382 Frampton and Nurse 5 Franco v. Bolton 569 Frank and Rich (Lord) .... 458 Franklyn v. Tuton 298 Frazer and Thomas 121 Freeman and March 453 French and Campbell 1 05 French and Martin 106 Freswell and Barton 34 Frizell and Westdeane 1 65 Froggattand Sacheverell,517.534 Frontin v. Small 575 Fry and Wilkins, 17. 131. 179. 180. 431. 455. 483. 493 Fuller v. Abbott 221. 580 Funucan and Goodtitle .... 542 Furnival v. Crew, 236. 248. 521. 471 Fursaker v. Robinson 353 Fursor v Penton 601 G. Gage v. Acton 598 Gage and Bacheloure, 42.43. 455. 491. 494 Gainsfordv. Griffith, 45.576. 382. Gale v. Reed 571 Galliers and Roe, d. Hunter, 404. 421 Gallini v. Laborie 23. 596 Garnon and Moody 428 Garrard v. Grinling 431 Garret v. Taylor 129 Gaskell v. King, 222. 579 Gason and Calvert 234 Gawden v. Draper 593 Geddes and Havelock 1 04 Geering and Weatherall, 64. 251. 405. 420. 439 Geery v. Reason 37 George v. Butcher 35 George and Howell 1 73 XXX Table of Cases cited. Page Gervis v. Peade 459 Gibbon v. Mendez 85 Gibbons v. Davies 599 Gibbons v. Prewd 76 Gibbs and Collins 89 Gibson and Cole 35 Gibson v. Courthope 511 Giffard and Nugent 402 Gifford and Jesser 537 Gifford and Spanish Ambas- sador 78 Gilburn and Bulstrode .... 544 Giles v. Hooper 51 . 211. Gilliam and Stone 33 Girdley v. Lord Palmerston . . 27 Gladding, or Gladen, and Steping 326 Glazebrook v. Woodrow, 87. 89. 106. 137 Gleas and Voux 165 Glinister v. Audley 308 Glover v. Cope 538 Glover and Hacket, 40. 46. 327 Glover and Pen 322 Gnales and Fountain 454 Goddard v. Keate, 295. 483. 485. 486 Godden and Page 510 Godfrey v. Watson 267 Godscall and Barnard 494 Godwin and Doe, d. Spencer, 142 Godwin and Scott, ...,131. 132 Gogle and King 553 Goldneyv. Curtise, 158. 160. 161. 344. 351 Goodall's case 64 Goodall and Middlemore, 41. 305. 344. 470. 524 Goodcheape and Ventrice ... 49 1 Goodhand and Griffith 139 Goodisson v. Nunn 87. 105 Goodman v. Knight 311 Goodright d. Hall v. Ri- chardson 575 Goodright d. Stevenson v. Noright 204 Goodright d. Walter v. Davids 428 Goodtitle v. Funucan 542 Goodwin v. Crowle 552 Page Goodwin and Turner 88 Goold and Currie 220 Gordon and Storer 8. 84 Goring v. Warner 416. 418 Gorton v. Smart 445 Gosse and Prugnell 271 Gough v. Worcester and Bir- mingham Canal 298 Gould and Shrewsbury (Earl of) 57. 141 Gould and Thayer 176 Goulding and Walcot 553 Gourlay v. Duke of Somerset, 148. . 149. 253.411 Graham v. Sime 153 Graham v. Wade 218 Grange and Hill 535 Grant and Halsey 556 Gravenor and Parker 36 Graves and Mence 210 Gray v. Briscoe 308 Gray v. Mathias 569 Green's case 428 Green and Bridgeman 109 Green v. Folgham 572 Green and Grescot 503 Green v. Home 5 Greenaway v. Adams 408 ^Greenwell and Stone 272 Greenwood and WoodrofF . . 318 Gregg and Danby 161. 164 Gregory and Bordenave .... 106 Grescot v. Green 503 Gretton v. Diggles 487 Grey v.. Cuthbertson 472 Grey de Wilton (Lord) v. Saxon 563 Greyme and London (City of) 595 Griffin v. Deveuille 108 Griffin v. Harrison 334 Griffin v. Tailor 165 Griffith and Gainsford, 45. 376. 382 Griffith v. Goodhand 139 Griffith v. Harrison 334 Griffith and Loyd , 389. 400 Griffith and Pendred 233 Griffiths v. Brome 316 Grigg's case ,, 161. 164 Tabic of ( 'ases cited. XXXI Page Grigg v. Stoker 601 Grindall and Bute (Lord) . . 222 Grinling and Garrard. ..... 431 Grips v. Ingledew 548 Groote and Tattersall 146 Groves and Hare, 200. 202. 278. 280 Guavers and Fountain .... 454 Gulwell and Lady Russell . . 32 Guppy v. Jennings 576 Guy and Bunn 572 Guy v. Nichols 73 Guy's Hospital and Baynham, 144. 234. 240. 242. 259 Guyse and Bristol (Dn. and Ch. of) 458 Gwynne and Davidson .... 1 04 Gylbert v. Fletcher Ill Gyles and Woodward 564 II. Hack v. Leonard 208. 300 Hacket v. Glover . . 40. 46. 327 Haldimand and Macbeath . . 27 HaleandShee 419 Halfhed v. Jenning ) ,.~ Half hide v. Fenning ) Hall and Bedford 47 Hall and Buckland, 195. 252. 253. 405. 491 Hall v. Cazenove 104 Hallv. Hardy 166 Hall v. Kirby 592 Hall and Nurstie 490. 533 Hallet v. Hodges 545 Hallet v. Middleton 23 1 . 348 Halliday and Strathtield 1 34 Halling's case J oci Hailing v. Connard y Halsey v. Grant 556 Hamilton and Kane 234 Hamington v. Rydear 333 Hamlen v. Hamlen 151 Hamley v. Hendon. . . . 477. 533 Hammond v. Hill 333 Hammond and Spragg .... 219 Hammond v. Toulmin 209 Hamond v. Dod 313 Page Hampson and Cheetham ... 267 Hancock v. Andrew .. 219. 222 Hancock v. Field 592. 593 Hancock v. Hodgson 27 Hanmer and Leigh 140 Hannam v. South London Wa- ter-works 303 Hanson and Henn 592 Hanson v. Stevenson 510 Harbert and Parry 41 3. 42 1 Harding and Allen 297 Harding v. Nelthorpe .... 354 Hardy and Berkeley 8 Hardy v. Bern 552 Hardy and Hall 166 Hare v. Groves, 200. 202. 278. 280 Hare v. Savill . . . , 545 Harriet v. Butcher 291 Hargrave and Sedgwick .... 1 69 Harnett v. Yeilding, 240. 249. 431. 561 Harper v. Bird or Burgh, 40. 43. 52. 55. 532 Harridge and Jevons, 457. 554. 575 Harris v. Bryant 263 Harris and Cook 486 Harris and Mitchell, 147. 148. 150 Harris and Porter .... 140. 587 Harris and Rolfe, 193. 302. 423 Harris and Walker, 86. 98. 196 Harrison v. Bulcock 222 Harrison and Burrel, or Bur- well 296 Harrison and Griffin, or Grif- fith 334 Harrison v. Lord North . 200 Harrison and Roe d. Gregson, 407. 421. 427. 428 Harrison v. Wright 549 Harrobin and Pole 105 Hartley v. Peehall 472 Harvey and Norton 520 Harvey and Parker 460 Harwood v. Hilliard 28. 456 Hastings v. Blake 492 Hastings v. Wilson 510 Hatch and Holford, 65. 68. 195. 406. 476. 485 XXX11 Table of Cases cited. Page Havelock v. Geddes 104 Haverington's case 333 Haw v. Ogle 112. 586 Hawke and Doe d. Norfolk, (Duke of) 416 Hawkey and Tippet 130 Hawksby and Huddle 504 Hawkshaw v. Parkins 595 Hawley and Scounden . . 26. 27 Hawley and Staughton .... 27 Hay and Henderson 431 Hayes v. Bickerstaffe, 46. 48. 1 00. 313. 314. 382 Hayes d. Foord v. Foord. . . . 599 Hayley and Roe d. Bamford,251. 471. 518. 520 Heard v. Wadham, 84. 89. 105. 544. 592 Hearing and Style 46 Heath v. Baker 196 Hedger and London (Mayor of) i.... 296 Hedges and Lilly, 117. 129. 133 Hedges and O'Herlihy ..... 253 Heeding v. Davis 599 Hele and Wooton, 10. 113. 157 Hellier v. Casbard 52 Helps and Newdigate . . 556. 560 Hemans and Lamb 271 Heming and Athowe . . 531. 537 Hemsworth Hospital and Watson 246 Henderson v. Hay 431 Hendon and Hamley. . 474. 533 Hendon (Lord of the Manor of) and Rex 152. 153 Henley and Clement 7. 18 Henn v. Hanson 592 Henning and Alfo 531 Herenden and Barty 1 65 Hermitage v. Jenkins. . 458. 491 Heron v. Treyne 351 Herring and Stile 47 Hesse v. Stevenson 379 Hewit and Coates 545 Hewitt and Brooke 251 Hewson and Halcombe .... 472 Heyton and Caltborp 322 Hickes and Offley 323 Hicks v. Downing 495 Page Hide and Oglethorpe 25 Hide and Williams.... 285. 583 Higford and Cox 303 Higginbottom's case 349 Higgins v. Rosse 256 Hill v. Barclay, 206. 253. 292. 294. 300. 301. 303. 423. 430 Hill and Brewer, 406. 470. 485 Hill v. Browne 317 Hill v. Carr 5. 28. 164 Hill and Cuming 26. 112 Hill v. Dobie 508 Hill v. Grange 535 Hill and Hammond 333 Hill and Hyde 216 Hill and Nott 353 Hill v. Pilkinton 577 Hill v. Waldron 160 Hillard and Lewis 323 Hilliard and Harewood, 28. 456 Hilton and Allen 258 Hilton v. Smith 36 Hind and Seers 422 Hinton v. Hinton 1 65 Hinsworth Hospital and Wat- son 246 Hitchcock and Bridges, 235. 250 Hitchcox v. Fox 74 Hoare and Philpot, 194. 421. 427. 497. 505 Hoare and Southcote. . 128.132 Hoblin and Lupart 593. 599 Hobson v. Middleton 338 Hodges and Hallet 545 Hodges and Lilly, 117. 129. 133 Hodges v. Smith 593 Hodgkins v. Robson 197 Hodgson and Barker, 583. 588. 602 Hodgson and Bartlett 39 Hodgson v. East India Com- pany 328 Hodgson and Hancock .... 27 Hodgson v Thornborough . . 197 Hodson v. Sharpe 580 Hody v. Lun 1 75 Hoe v. Marshall 592 Hogg and Doe d. Pitt 410 Holbech and Bree 340 Holcombe v. Hewson 472 Table of Caxex cited. XX XI 11 Page Holder v. Taylor, 37. 46. 47. 75. 328 Holdips and Otway 28 Holford v. Hatch, 65. 68. 195. 406. 476. 485 Holland and Littler, 427. 544. 592 Holies v. Carr ' 5. 34. 50 Holley v. Weeden 451 Hollins v. Connard 351 Hollister and Kill 147 Holloway v.Fenton 109 Holme and Cragg 110 Holmes v. Buckley 525 Holms v. Seller 313 Holtv. Holt 165. 297 Holtzapffel v. Baker, 198. 201. 203. 279. 280 Home and Watson 217 Homer v. Ashford ........ 57 1 Hone and Davis 556. 551 Honywood and Browne, or Browning 48. 69 Hooke and Cotterell . . 210. 545 Hooker and Fildes 561 Hookes v. Swaine .... 140. 142 Hooper and Cloake. ... 47. 328 Hooper and Giles 51. 211 Hopkins and Everard 78 Hopkyns and Howard 548 Hopwood v. Barefoot 215 Horev. Dix 21 Horn and Barrington 165 Horn v. Chandler Ill Home and Green 5 Hornby v. Houlditch, 491. 492. 589 Horsefall v. Mather 266 Horsfall v. Testar 291 Horton and Bouls 69 Horton v. Horton 413 Hoskins and Trenchard, 1 37. 309. 369. 376 Hotham v. East India Com- pany 84. 105. 591 Houlditch and Hornby, 491. 492. 589 Houstoun and Saltoun .... 28 How and Lucas 426 How and Whitfield 48 1 . 482 Howard v. Hopkyns . ..... 548 Page Howev. Synge 221.580 Howell v. George 173 Howell v. Richards, 306. 309. 312. 316. 366. 373 Howes v. Brushfield 336 Howgiland Humberton .... 506 Huekle v. Wye 481 Huddle v. Hawksby 504 Huddy v. Fisher 45 Hudson and Belcher 600 Hughes and Baylie 313 Hughes v. Bennet 366 Hughes v. Humphreys 26 Humberton v. Howgil 506 Humlock v. Blacklow, 20. 76. 78 Humphreys and Hughes. ... 26 Hunt v. Allen 318 Hunt v. Cope 197 Hunt and Cordwent . . 1 05. 592 Hunt v. Danvers 322 Hunt and Morgan 323 Hurd v. Fletcher 325 Hutchinson and Aldworth . . 6 Hutchinson and Tyndal .... 545 Hutton and Capes 573 Hutton v. Eyre 593 Hydev. Hill 216 Hyde v. Skinner, 240. 250. 251. 253. 453. 456 Hyde v.Windsor (Dn. & Ch. of) 453. 456. 466. 481. 523 Hyde's executors and Ingery, 457 Hylton and Ramsden 35 I. Igguldenv.May,46.53. 137. 144. 233. 234. 240. 244. 248. 554 Inchiquin (Earl of) v. Burnell 233 Incledon v. Crips 548 Ingery v. Hyde's executors. . 457 Ingledew v. Cripps 548 Ingolsby v. Wivell 285 Ingram and Tothil, or Trevil 592 Innis and Dodd 101 Ipswich (bailiffs, &c.) v. Mar- tin 458 Isherwood v. Oldknow, 527. 532. 533. 538. 542 XXXIV Table of Cases cited. Page Isteed v. Stoneley, 195.251. 470. 524 Ithell v. Bean 402 J. Jackson and Doe d. Vickery 286 Jackson v. Saunders 234 Jackson v. Vernon 486 Jalabert v. Duke of Chandos 406. 485 James and Aylet 210 James v. Blunck 475 James v. David 150 James v. Emery ..123. 125. 130 James and Salvin 192 Jane and Paradine, 198. 275.284. 582 Jaques and Eaton .... 486. 488 Jeakill v. Linne 197 Jeffereys and Vernon 18 Jefferies and Deux 594 Jefferson v. Jefferson 537 Jeffreson v. Morton 451 Jeffrey's case 222 Jeffry and Vawser 154 Jenkins v. Hermitage ..458. 491 Jenkins v. Keymes 164 Jenks v. — — 451 Jenning and Half head .... 148 Jennings and Cook 591 Jennings and Guppy 576 Jennor and Archdeacon .... 74 Jernegan and Willis 109 Jerritt v. Weare 320 Jervies and Peles 370 Jervoise and Rubery . . 141. 257 Jesser v. Gifford 537 Jessop and Netherton,. . 42. 459 Jevens v. Harridge, 457. 554. 575 Jodderell v. Cowell 491, 2 Johnson v. Bland 549 Johnson v. Carre 593 Johnson v. Medlicott 110 Johnson v. Nott 353. 355 Johnson v. Procter, 34. 358. 383. 459 Johnson and Rawson 106 Johnson and Saunders, 127. 129. 131 Page Johnson v. Wilson .... 127. 131 Johnston v. Wilson . . 576. 579 Jones v. Barkley 105 Jones v. Bodinner 197 Jones and Campbell, 90. 91. 95 Jones and Davis 173 Jones v. Edney 472 Jones v.Jones .. 426.431.433 Jones and King, 311. 344. 515 516 Jones and Kingdom 129 Jones and Moore 6 Jones and O'Neil 234 Jones and Person 48 Jones v. Thorne 445 Jordan and Barnfather .... 504 Jordan v. Twells 197 Jourdain v. Wilson 471 Joyce and Willingham, 251. 252. 253 Jthell v. Beane 402 K. Kane v. Hamilton 234 Keate and Goddard, 295. 483. 485. 486 Keating v. Sparrow ...... 234 Keble v. Brown 352 Keck and Neeve 1 53 Keeling and Doe d. Bish, 137. 444 Keeling v. Mori ice, 267. 458. 481. 494 Keete and Barker 51 Kelly and Lowther 7. 513 Kemise and Conan, 229. 267. 426. 466. 481. 495 Kemshead and Orgill 49 1 Kerne and Basset 22 Kerrison v. Cole 580 Keymes and Jenkins 164 Kidder v. West 329 Kidgell and Brewster, 65. 211. 475. 588 Kidgly and Salter 7. 196 Kignly v. Bulkly 494 Kill v. Hollister 147 Killigrew v. Sawyer 327 Table of Casta cited. xxxv Page Killingworth and Lancashire 106 Kimpton v. Eve, 17. 284. 484. 563 Kinaston and Clayton 594 Kinaston and Lacy .... 593. 594 Kinder and Coles 346 King v. Ballett 451 King and Briscol 37 King and Congham, 229.267.426. 466.481.495. King and Gaskell 222. 579 King v. Gogle 553 King v. Jones, 164. 311. 344. 515. 516 King and Noble 371 King v. Standish 331 King and Thornhil, 422. 425. 427 Kingdom v. Jones 129 Kingdon v. Nottle, 4. 64. 311. 343.470. 514. 515. 519. 521. 522. 526 Kingston v. Preston, 71. 78. 137 Kinnersley v. Orpe .... 406. 485 Kirby and Hall 592 Kirkhara v. Chadwick .... 245 Kitchell and Brewster, 65. 211. 475. 588 Kitchin v. Compton . . 534. 536 Kitchin v. Buckly 534. 536 Kitchingham and Sail.. 467. 514 Knight v. Buckley 494 Knight and Goodman .... 311 Knight and Morris 82 Knight v. Mory 412 Knight v. Peachy 505 Knipe v. Palmer 575 Knubley and Wilson 453 Knye v. Moore 569 L. Laborie and Gallini .... 23. 596 Lacy v. Kinaston 593. 594 Lamb's case 24. 350 Lamb v. Browmvent 350 Lambard and Stevenson, 43. 65. 195. 229. 426. 468. 492. 493. 495 Lambe v. Hemans 271 Lambe and Morton .... 89. 106 Page Laming and Doe d. Pitt, 191.408. 410 Lamme v. Tresham 328 Lampleigh v. Brathwait .... 73 Lamplugh and Shortridge . . 289 Lamprey and Atwood .... 220 Lancashire v. Killingworth.. 106 Land and Waugh 40 1 Landydale v. Cheney 459 Lane v. Newdigate 295 Langford v. Pitt 344 Langley and Chinsley 444 Lanning v. Lovering 322 Lant v. Norris 28. 269 Large's case 415 Large v. Cheshire 82. 103 Lassels v. Catterton, or Chat- terton 347 Lathropp v. Marsh 563 Lathwell v. Fisher, or Palmer, 2 1 Laugh well v. Palmer 21 Lawrence v. Twentiman . . 583 Layer and Cotter 1 65 Lea v. Exelby 106 Leadbetter and Southall,216. 272 Leake and Mouys 578 Lechmore and Bushell .... 197 Lee v. Arnold 542 Lee and Barnfather 216 Lee and Bolton 118 Leeder and Biddell 580 Leeds v. Cheetham 203. 281 Leeds (Duke of) and Pugh.. 196 Legh and Carne 1 35 Leigh v. Hanmer ........ 140 Leigh and Phillipson 198 Le Keux v. Nash, 194. 493. 504. 506 Leman and Yaw, or Yea .. 216 Lennon v. Napper 234 Lenthall v. Thomas 151 Leonard and Hack 208. 300 Lethbridge and Bidwell.. 17. 133 Lettsom and Collison 479 Levett v. Withrington. . 327. 328 Levington and Lucy, 318. 516. 521. 589. Leviston and Lucy .... 313. 317 Lewes v. Ridge . . 525. 535. 538 Lewings v. March 317 XXXVI Table of Cases cited. Page Lewis and Campbell, 305. 316. 470. 524 Lewis and Doe d. Hitchins, 208 Lewis v. Hillard 323 Lewis v. Pead 109 Lewis and Robinson, .. 271. 273 Lewyn v. Forth 323 Lightfoot and Bridgeman . . 458 Lilly's case Ill Lilly v. Hedges, or Hodges, 117. 129. 133 Limbert and Lindsay 210 Lincoln (Earl of) and Wood- ward 449 Lindsay v. Limbert 210 Linne and Jeakill 197 Linn and Winstone 73 Lishnan and Sutherland .... 17 Lister and Buxton 560 Little and Moyses 251 Littler v. Holland. .427. 544. 592 Liverpool Waterworks Com- pany and Sparks 206 Lloyd v. Crispe, 422. 426. 427. 442 Lloyd and Roper 197 Lloyd and Target 484 Lloyd v. Tomkies 197. 320 Lloyd and Williams 583 Lloyd and Wilkinson 125 Lock v.Wright, 13. 17. 55. 72.85 Locock and Stanyroyde .... 346 Loftus and Whitley 111. 112 Loggin v. Orrery 24 Loggon and Pickett 388 London (City of) v. Greyme, 595 London (City of) v. Mitford, 258 London (City of) v. Nash, 286. 293. 297 London (City of) v. Rich- mond 471.493. 497. 504 London ( Mayor of) v.Hedger, 296 Lord and Ashworth 25 Lougher v. Williams, 65. 267. 516. 517 Lovat v. Lord Ranelagh, 205. 203. 423. 566 Love v. Pares 141 Loveden and Vere 434. 439 Lovelace and Midgley 538 Page Lovell v. Lutterell 332 Lovering and Lanning 322 Lowe v. Peers 149. 547. 571 Lower and Weale 164 Lowther and Bellingham. ... 153 Lowther v. Kelly 7. 513 Loyd v. Griffith 389. 400 Lucas v. Comerford, 180. 294. 297. 483 Lucas v. How 426 Lucke v. Lucke 7 Lucy v. Levington, 318. 516.521. 589 Lucy v. Leviston 313. 317 Ludford v. Barber 568. 585 Ludwell v. Newman, 47. 327. 328 Lun and Hody 1 75 Lupart v. Hoblin 593. 599 Lupart v. Welson 26 Lutterell and Lovell 322 Luxmore v. Robson . . . .284. 287 Lyddall v. Dunlapp 458 Lydiate and Matthewson, 116. 594 Lydiatt v. Foach 247 Lynch and Burnett, 5. 11. 14. 46. 50. 494. 501 Lynch and Randall 58 Lyon and Eaton, 144. 242. 258. 302 Lysaght and Boyle 234 M M' Alpine v. Swift 258. 301. Macbeath v. Haldimand. ... 27 Macdonald v. Ramsay .... 114 Machel v. Dunton 542 Macher v. Foundling Hospi- tal 425. 426. 446 Mackay v. Mackreth 521 Mackintosh and Wellington, 148 Macklew and Agar 148 Mackreth and Mackay .... 521 Macpherson and Brummel . . 425 Mackworth v. Thomas .... 552 Magenis v. Magenis 233 Magrath v. Muskerry 234 Table of Cases cited. xxxvn Page Main's case, 245. 285. 288. 594 Mainwaring and Whistler . . 293 Manby v. Carthage 592 Manby and Colegrave 265 Mandell and Studholme. .24. 595 Manser's case 352 Mansfield and Cray 388 Mapes and Foster 317 Maplebeck and Smith 593 March v. Brace 494 March v. Freeman 453 March and Lathropp 563 March and Lewings 317 Marchant and Piumer, 453. 454. 460. Marke and Sanders 544 Marks v. Upton 210 Marlborough and Blandford, (March, of) 215 Marriott and Spencer 335 Marrow v. Turpin 492 Marsh v. Curteis 409. 428 Marshall and Butterfield, 59. 308 Marshall and Hoe 592 Marshall and Nind 371 Martin v. French 106 Martin and Ipswich (Bai- liffs, &c. of) 458 Martin v. Mitchell 173 Martin and Waldo 569 Martindale and Anderson .. 127. 128. 132. Martindale v. Fisher 104 Martyn and Ashton 322 Mascal'scase, 516.526. 534. 537. 538 Mason v. Corder 442 Mason and Davis 572 Mather and Horsefall 266 Mathers and Pember 178 Mathewson's case 116 Mathewson v. Lydiate .... 594 Mathias and Gray 569 Mathuris v. Westroray .... 535 Matthew and Davy 535 Matthewson v. Lydiate .... 116 Matures v. Westwood.. 491. 535 Maule v. Duke of Beaufort, 442 Maxwell v. Ward, 234. 243. 258. 259. 262 Page May and Iggulden, 46. 53. 137. 144. 233. 234. 240. 244. 248. 554 May, or Mayhur, v. Try, 40. 575. 578 May v. Woodward .. 117. 118. 134 Mayn and Scott 105 Mayo v. Buckhurst 473 Mayor v. Steward 69. 181 Mead v. Lord Orrery 402 Medlicott and Johnson .... 1 10 Medman and Millway 333 Mence v. Graves 210 Mendez and Gibbon 85 Merceron v. Dowson 495 Meriton's case 118 Merrill v. Frame 45. 46. 382 Merriman and Edwards .... 402 Merrit v. Rane 88 Metcalfe v. Rycroft 5. 8. Meux and Doe d. Morecraft, 292 Meyer and Wilkinson 76 Michel and Barnard 553 Middlemore v. Goodale, 41. 305. 344. 470. 524 Middleton and Combury. . . . 562 Middleton and Hallett. .231 . 348 Middleton and Hobson .... 338 Middleton and White 1 05 Midgley v. Lovelace 538 Milboume v. Ewart 599. 601 Miles and Thompson 504 Mill and Dowling 240. 255 Miller v. Seare 27 Miller and Swinnerton .... 537 Mills and Auriol 42. 492 Millway v. Medman 333 Milnes v. Branch, 65.68. 476.485 Milward v. Caffin 222 Mingay and Ashurst 538 Mitchell v. Harris, 147. 148. 150 Mitchell and Martin 173 Mitford and London (City of), 258 Mitford and Pybus . . . .' 3 Mocato and Wafer 423 Molins and Drury 563 Monk v. Cooper . . 197. 198. 275 Monkhouse and Buxton, 221. 580 XXXVlll Table of Cases cited. Page Moody v. Garnon 428 Moore v. Clark 270. 289 Moore and Denby 222 Moore v. Foley, 144. 234. 237. 244 Moore v. Jones 6 Moore and Knye 569 Moore v. Morecombe 24 More's (Sir Win.) case, 418. 422 More v. Roswell 350 Morecombe and Moore .... 24 Moreton and Campden, 199. 202. 278. 280 Morgan and Attorney General, 329. 577 Morgan v. Edwards 221. 587 Morgan and Edwards, 195. 491. 539 Morgan v. Hunt 323 Morgan v. Slaughter 432 Morley v. Polhill 503. 522 • Morrice and Keeling, 267. 458. 481. 494 Morris v. Coleman 572 Morris v. Edgington 329 Morris v. Knight 82 Morris and Smith 208 Morris and Staines, 14. 17. 43. 178. 181. 194. 195. ft01.491. 492 Morris v. Stephenson 167 Mortlock v. Buller 559 Morton and Jefferson 451 Morton v. Lamb 89. 106 Mory and Knight 412 Mosely v. Virgin 294. 2G8 Mostyn and Boardman. .253. 441 Mountford v. Catesby . .313. 333 Mouys v. Leake 578 Moyle and Austin 586 Moyle and Clapham 36 Moyses v. Little 251 Mucklestone v. Thomas .... 101 Mudge v. Mudge 585 Munns and Nervin 309. 364 Mure and Davis 105 Murray and Bateman .. .234. 259 Muscot v. Ballet 308 Musgrave v. Dashwood .... 337 Muskerry and Magrath .... 234 Page Myer and Dawson 76 Myers and Welch 509 N. Nainby and Chesman 571 Naish v. Tatlock 510 Napper's case 377 Napper v. Allington (Lord). . 345 Napper and Lennon 234 Nash v. Aston 311. 343. 583 Nash and Blackwell 76 Nash and Le Keux, 194. 493. 504. 506 Nash and London (City of) 286. 293. 297 Nash v. Palmer 316. 317 Nash and Schomberg 291 Neale v. Wyllie 287 Needham and Andrews .... 585 Neele v. Reeve 118 Neeve v. Keck 153 Nelthorpe and Harding .... 354 Nervin v. Munns 309. 364 Netherton v. Jessop .... 42. 459 Newdigate v. Helps . . . .556. 560 Newdigate and Lane 295 Newhall and Dean 593 Newhaven (Lord) and Aid- borough (Lord) 106 Newman and Ludwell, 47. 327. 328 Newsam and Pudsey, 342. 344. 346 Newton and Ferrers 137 Newton v. Osborn, 41. 51. 449. 459- Nicholas v. Pullin 313 Nichols and Baxter 133 Nichols v. Chalie 149 Nichols and Guy 73 Nichols and Raynbred .... 73 Nicholls and Tooley 157 Nicholson and Walker .... Ill Nightingall and Bragg, 75. 78.291 Nindv. Marshall 371 Nine and Witchcot 329 Noble v.King 371 Nokes's case, 45. 46. 48. 137. 313. 382. 523. 554 Table of Casts cited. XXXIX Page Noke v. Awder. . . . 470. 525. 574 Nonnes and Sherewood .... 537 Noright and Goodright v. Stevenson 204 Norman v. Foster, 312. 318. 365. 375 Norrice's case 28 Norris v. Elsworth 17. 51 Norris and Lant 28. 269 Norris and Tilney 458. 466 North (Lord) and Harrison . . 200 Northcote v. Duke 424 Northcote v. Ward 307 Northcott v. Underhill .... 577 Northumberland (Duke of) v. Errington 120. 137. 364 Norton v. Aeklane 491 Norton and Crop 562 Norton v. Harvey 520 Norwich (Dean and Ch. of) and Waller 575 Nottv. Hill 353 Nott and Johnson 353. 355 Nottle and Kingdon, 4. 64. 311. 343.470. 514. 515. 519. 521. 522. 526 Nugent v. Giffard 402 Nurm and Goodisson. . . .87. 105 Nurse v. Frampton 5 Nurse and Paul 427. 493 Nurstie v. Hall 490. 533 Nutbrown v. Thornton, 560. 564 O. Odell v. Wake 487.494 OfHey v. Hickes 323 Ogilvie v. Foljambe 388 Ogle and Haw 112. 586 Ogle and Owston 1 23 Oglethorpe v. Hide 25 O'Herlihy v. Hedges 253 Oldman v. Bewicke 86 Oldips v. Otway 28 Oldknow and Isherwood, 527. 532. 533. 538. 542 Oliver and Davis 234 O'Neil v. Jones 234 Onslow and Biddlesford. . . . 537 Page Onslow v. Corrie, 194. 418. 493. 499. 504. 506. 512 Opie and Peeters 72. 96 Orgill v. Kemshead 491 Orpe and Kinnersley . . 406. 485 Orrery and Loggin 24 Orrery (Lord) and Mead .. 402 Ortread v. Round 169 Osborne v. Crosberne 131 Osborn and Newton, 41. 51. 449. 459 Osmond v. Fitzroy 108 Otway v. Holdips 28 Outram v. Round 169 Overton v. Sydall 490 Owen and Bach 99 Owston v. Ogle 123 Oxford (Bishop of) v. Wise, 215 Page v. Godden 510 Page v. Smith 153 Pain and Roe d. Goatly 292 Painter and Coleman 327 Palmer's case 1 60 Palmer and Baker 593 Palmer v. Edwards 229. 489 Palmer and Knipe 575 Palmer and Lath well, or Laughwell 21 Palmer and Nash 316. 317 Palmerston (Lord) and Gird- ley 27 Paradine v. Jane, 198. 275. 284. 582 Paradise and Andrews .... 329 Pares and Love 141 Parker v. Gravenor 36 Parker v. Harvey 460 Parker v. Webb . . 195. 468. 491 Parkin and White 591 Parkins and Hawkshaw .... 595 Parks and Smith 204 Parry v. Harbert 413. 421 Parsons and Brailsford .... 33 Parsons and Stubbs 219 Pate and Urmston 355 Parteriche v. Powlet . . 267. 293 xl Table of Cases cited. Page Pattinson and Byrne 85 Pattison and Congleton (Mayor of), 186. 443. 461. 468. 472. 478 Paul v. Nurse 427. 493 Payne and Doe 407 Payne and Rogers 591 Peachy and Knight 505 Pead and Lewis 1 09 Peade and Gervis 459 Pearee and Andrew . . 459. 574 Peckv. Wood 271 Peekam's case 585 Peahall and Hartley 472 Peel, Ex parte 513 Peers and Lowe . . 149. 547. 571 Peeter v. Carter 1 45 Peeters v. Opie 72. 96 Pierce and Acton 599 Peles v. Jervies 370 Pember v. Mathers 178 Pemberton and Thomas .... 509 Pembroke v. Thorpe 297 Pen v. Glover 74. 322 Pendred v. Griffith 233 Pennant's case 426.428 Penning v. Plat 317. 319. Penry's administratrix v. Brown 268 Penton and Fursor 601 Peppin and Clarke 246 Pepys and Davy 451 Perrot v. Austin 454 Perry v. Edwards 317 Person v. Jones 48 Pesey and Wood 154 Petv. Cally 158 Petriev. Bury 18. 132 Pexpoint v. Thymbelbye. . . . 145 Phillips and Chaworth, 534. 542. 585. Phillips and Doe d. Willson, 425 Phillips v. Doelittle 204 Phillips v. Fielding. , 106 Phillipson v. Leigh 198 Philpot v. Hoare, 194. 421. 427. 497. 505. Pickard and Twynam, 229. 426. 495. 536. Pickett v. Loggon 388 Page Pierson and Foster 328 Pilot's case. . • * • • 570 Pigot v. Bridge 137. 196. Pilkington v. Shaller 488 Pilkinton and Hill 577 Pilling v. Armitage 255 Pime's case 536 Pinchard and Withers .... 166 Pinckard v. Ridge 48 Pincombe v. Rudge 48 Pindar v. Ainsley 197 Pinsent and Whitway. . 455. 491. 494 Pirk and Buckley, 267.458.466 Pitcher and Tongue 494 Pitcher v. Tovey, 194. 195. 455. 494. 495. 504 Pitt and Langford 344 Pitt and Reynolds, 193. 206. 301., 302. 423. 565 Pitt v. Smith ../ 109 Pizey v. Rogers 272 Plant and Thursby 490. 531. "533.538. 539 Plat and Penning 317.319 Piatt v. Plommer 537 Plommer and Piatt 537 Plumb and Collins. . 5. 478. 513. 565 Plumer v. Marchant . . 453. 454. 460 Pole v. Harrobin 105 Polhill and Morley 503. 522 Pollard and Cowper 313 Pomfret v. Ricroft, 59. 267. 308 Pool v. Pool 449 Poole v. Archer 274 Poole and Chancellor .. 17. 489. 495 Pope and Sanders, 301. 423. 428 Pordage v. Cole. . 30. 37. 55. 98 Porter v. Harris 140. 587 Porter v. Shephard 86 Porter v. Swetnam .. 42. 44. 51. 195. 459. 468 Portmore (Earl of) v. Bunn, 484. 539. 525. 576 Powell and Cutter, 198. 201. 276. Powell and Doe d. Lloyd . . 419 Powell v. Powell 164 Table of Cases cited. xli Page Powell and Seabourne .... 344 Powell and Stevenson 338 Powell and Sumner 121 Powlet and Parteriche. . 267. 293 Powley v. Walker 267 Pratt v. Brett 563 Praund v. Turner 593 Prebble v. Boghurst 243 Prentice and Tinckler 221 Presgrave and Birkley 1 32 Preston v. Dawson 158 Preston and Kingston, 71. 78. 137 Preston v. Wasey 169 Prewd and Gibbons 76 Price and Crisp 1 43 Price and Rudder 545 Price v. Williams 148 Priestly and Walker 553 Pritchard and Brecknock Canal Company 275. 284 Proctor v. Johnson, 34. 358. 383. 459 Prugnell v. Gosse 571 Pudsey v. Newsam, 342. 344. 346 Pugh v. Duke of Leeds .... 196 Pullin and Nicholas 313 Pulteney and Cavan (Lady), 336 Purfrey's case 470 Puny and Beely 522. 539 Pybus v. Mitford 3 Pye v. Daubuz 345 Pym v. Blackburn 274 Pynfett and Fletcher 153 Pyotv. Lady St. John.. 285. 535 Quilterand Brown, 198. 199. 202. 276. 278. 280. 329 R. Raban and Browne 436 Radcliffe v. Warrington .... 301 Raddish and Evelyn 286 Raine and Barclay, 227. 231. 349 Ramsay and Macdonald .... 114 Ramsden v. Hylton 35 Page Randall and Bird 547 Randall v. Lynch 58 Rane and Merrit 88 Ranelagh (Lord) and Lovat, 203. 205. 423. 566 Rashleigh v. Williams . .314. 317 Ratcliff v. ... 319 Rawson v. Johnson 1 06 Rawstorne v. Bentley 261 Raynbred and Nichols .... 73 Rayner v. Stone 294 Raynollsv.Woolmer 311. 577 Read and Carith, or Carrel, 595 Reade v. Bullocke 593 Readshaw v. Balders . . 221. 580 Reason and Geery 37 Redman and Bishop 33 Redshaw v. Bedford Level . . 255 Reed and Gale 571 Reed and Taylor 27 1 Rees v. Dacre (Lord) 249 Reeve and Dalston 197 Reeve and Neele 118 Reeves and Walker, 487. 488. 506 Rex v. Lord of the Manor of Hendon 152. 153 Rex v. St. Bartholomew .... 222 Rex v. St. Luke's Hospital. . 222 Rex v. Topping ...., 418 Reynolds v. Buckle 197 Reynolds v. Pitt, 193. 206. 301. 302. 423. 565 Rhodes v. Bullard, 59. 267. 308 Rich (Lord) v. Frank 458 Rich v. Rich 370 Rich v. Sydenham 110 Richards v. Ceely, or Sely . . 151 Richards and Cock 571. Richards and Howell, 306. 309. 312. 316. 366. 373 Richards Le Taverner's case, 197 Richardson Ex parte .... 5. 513 Richardson v. Evans 427 Richardson and Goodright d. Hall 575 Richardson v. Sydenham, 237. 255. 256 Richardson and Turner. .411. 508 Ricroft and Pomfret, 59. 267. 308 C Xlll Table of Cases cited. Page Richmond and London (City of) 471. 493.497. 504 Ridge and Lewes, 525. 535. 538 Ridge and Pinckard 48 Rigby and Street, 147. 148. 149 150 Ritchie v. Atkinson 104 Ritchie and Atkinson, 569. 588. 602 Roach v. Wadham, 65. 178. 465. 482 Roberts and Brudnell, 284. 459. 518. 585 Robertson v. St. John 255 Robins and Cole J 09 Robinson v. Amps, or Aunts, 139 Robinson and Broome 507 Robinson and Fursaker, or Tursaker 353 Robinson v. Lewis .... 271. 273 Robinson v. Walker 117.118 Robson and Hodgkins .... 197 Robson and Luxmore . . 284. 287 Roe d. Bamford v. Hayley, 251. 471. 518. 520 Roe d. Boscawen v. Bliss . . 429 Roe d. Dingley v. Sales .... 409 Roe and Doe d. Maslin 483 Roe and Doe d. Whitfield . . 205 Roe d. Goatly v. Paine 292 Roe d. Gregson v. Harrison, 407. 421. 427. 428 Roe d. Hunter v. Galliers, 404. 421 Roe d. West v. Davis 205 Roger and Pizey 272 Rogers v. Payne 591 Roles v. Rosewell 552 Rolfe and Atkinson 350 Rolfe v. Harris 193. 302. 423 Rolls v. Yate 126. 128 Rook v. Worth 274. 297 Roper v. Lloyd 197 Roper v. Williams 299 Rose well's case 350 Rosewell and Rose 552 Ross v. Ross 164 Ross (Earl of) v. Worsop . . 233 Rosse and Higgins 256 Roswell and More 350 Page Rothschild and Dolaret .... 560 Round and Ortread, or Ou- tram 169 Routledge v. Bun-ell 7. 86 Rowe and Doe d. Knight .. 190 Rowlandson, Ex parte . . 133. 135 Rowley and Charles 234 Rowley and Vipon 258 Rubery v. Jervoise .... 141. 257 Rudder v. Price 545 Rudele and Cass 355 Rudge and Pincombe 48 Rushden's case 454 Russell v. Darwin 237 Russell (Lady) v. Gulwell . . 32. Russell v. Stokes 462 Russell and Stokes 462 Russell and Webb, 52. 69. 461. 531. 533. 538. 542. 585 Russen v. Coleby 99 Rust and Can ham 70. 525 Rustv. Whittle 165 Rutland (Duchess of) v. Wakeman 397 Rutland (Duchess of) and Wakeman, 388. 394. 400. 401 Rutter and Cud 560 Rycroft and Metcalfe 5. 8 Rydear and Hamington .... 333 Sacheverell and Davie 318 Sacheverell v. Fro^gatt, 517. 534 Sacheverell v. Walker 517 Sackvill v. Evans 458 Sadlers' Company v. Badcock, 1 87 Sail v. Kitchingham 467. 514 St. Albans (Duke of) v. Ellis, 28. 31 St. Albans (Duke of) v. Shore 80.95 St. Bartholomew and Rex . . 222 St. John (Lady) and Pyot, 285. 535 St. John and Robertson. . . . 255 St. Luke's Hospital and Rex, 222 St. Paul's (Dn. and Ch. of) and Betesworth 240. 249 Table of Cases cited. xJii Page St. Saviour's, South wark, (Churchwardens of) v. Smith 503 Sales and Roe d. Dingley . . 409 Salisbury (Bishopof) andDa- venant 215. 477 Salisbury (Earl of) and Finch, 256 Salman v. Bradshaw. . . . 307. 311 Salmond and Shubrick, 40. 569. 584 Salter v. Kidgly 7. 196 Saltoun v. Houstoun 28 Salvin v. James 192 Samson and Clarke 46 Samways v. Eldsly 37. 72 Sanders v. Marke 544 Sanders v. Pope . . 301. 423. 428 Sandham and Doe d. Ellis, 197. 276. 296 Sands v. Tomlinson 165 Sangster v. Birkhead . . 271. 273 Saunders and Jackson 234 Saunders v. Johnson, 127. 129. J31 Savage v. Whi thread 387 Saville v. Alchorne 29 Savill and Hare 545 Sawyer and Killigrew 327 Saxon and Grey de Wilton (Lord) 563 Scarles and Swan 42. 459 Schomberg v. Nash 291 Scott v. Godwin 131. 132 Scott v. Mayn 105 Scould v. Butter 560 Scounden v. Havvley .... 26. 27 Scrimshire and Ayliff 594 Scraggs and Clarke 587 Scudamore v. Stratton 246 Scudamore v. Vaudenstene. . 8 Seabourne v. Powel 344 Sealy and White 550 Seaman v. Browning 329 Seare and Miller 27 Seddon v. Senate, 56. 197. 319. 320 Seers v. Hind 422 Sedgwick v. Hargrave 169 Selby v. Chute 322 Seller and Holmes 313 Page Sellers v. Bickford 591 Sely and Richards 151 Senate and Seddon, 56. 197. 319 320 Severn v. Gierke 34 Shackle v. Baker 150 Shalecroft and Sleer, or Steer, 78. 351 Shaller and Pilkington .... 488 Shann v. Bilby 153 Shann v. Shann 153 Sharpe and Hodson 580 Shee v. Hale 419 Shelburne v. Stapleton .... 88 Sheldon and Babington .... 371 Shelley's case 285 Shephard and Porter 86 Sherwood v. Nonnes 537 Sherman, Ex parte 420 Sherwin and Coleman .. 47. 118 Sherwin and Doe d. Pitt, 189. 192 Shore v. Collett 231 Shore and St. Albans (Duke of) 80.95 Shortridge v. Lamplugh .... 289 Shrewsbury (Earl of) v. Gould 57. 141 Shubrick v. Salmond, 40. 569. 584 Shum and Taylor, 194. 483. 494. 504. 506 Shuttleworth and Wigg, 221. 580 Sicklemore v. Thistleton, 173. 371 Sikes and Belcher 366 Silk and Faulder 108 Sillye and Collins 410. 426 Sime and Graham 153 Simmons v. Bolland 460 Simonds and Smith 520 Simpson v. Titterell 37. 72 Skeggs and Stanhope . . 421. 422 Skerne's case 251. 470. 524 Skinner and Hyde, 240. 250. 251. 253. 453. 456. Skurro and Soprani. . . . 573. 585 Slater v. Stone . . . . 75. 78. 291 Slaughter and Morgan .... 432 Slaymaker and Copping. . . . 407 Sleer v. Shalecroft 351 c 2 xliv Tabic of Cases cited. Page Slingsby's case .. 124. 127. 131 Small and Frontin 575 Small and White 109 Smart and Gorton 445 Smith v. Arnold 2(37.471 Smith v. Baker 495 Smith v. Barnes 597 Smith and Doe d. Cheere, 411. 418. 427 Smith and Hilton 36 Smith and Hodges 593 Smith v. Maplebeck 593 Smith v. Morris 208 Smith and Page 153 Smith v. Parks 204 Smith and Pitt 109 Smith and St. Saviour's, South wark(Churchwardens of) 503 Smith and Simms .... 152. 353 Smith v. Simonds 520 Smith and Sparkes 295. 488 Smith and Stafford 600 Smith and Stuart 273 Smith and Symms 553 Smith and Vernon, 183. 185. 251. 466.471. 527 Smith and Webber 295. 300 Smith v. Wilson 84. 105. 591 Smith's executors and Cas- tilion 458 Somerset (Duke of) and Gourlay.. 148. 149.253.411 Somerville v. Chapman .... 247 Soprani v. Skurro .... 573. 585 Southall v. Leadbetter. . 216. 272 Southampton(Lord) v.Brown, 9 Southcote v. Hoare 128. 132 Southgate v. Chaplin 318 South London Waterworks and Hannam 303 South Sea Company v. Bum- stead 26 Spanisli Ambassador v. Gif- ford 78 Sparkes v. Smith 295. 488 Sparks v. Liverpool Water- works Company 206 Sparrow and Keating 234 Page Spencer's case, 46. 48. 62. 67. 69. 183. 186. 267. 466.467. 470. 471. 473. 475. 480. 481. 523 Spencer v. Boyes 346 Spencer v. Durant .... 127. 131 Spencer v. Marriott 335 Splidt v. Bowles 68 Spragg v. Hammond 219 Spry and Doe d. Gaskell . . 444 Stafford's case 349 Stafford v. Bottome 349 Stafford and Smith 600 Staines v. Morris, 14. 17. 43. 178. 181. 194. 195. 401. 491. 492 Standish and King 331 Stanhope v. Skeggs 421. 422 Staniforth and Tarleton .... 192 Stanton and Barry 412 Stanyroyde v. Locock 346 Stapleton and Shelbourne . . 88 Stapleton and Wyvill 88 Starkey and Theed 222 Staughton v. Hawley 27 Staveland and Uxbridge (Lord) 429. 447. 482. 533 Steele v. Wright.. 198. 199. 202. 275. 278. 280 Steer v. Shalecroft 78. 351 Stephens and Case 223 Stephens and Copeland, 493. 507. 512 Stephenson v. Morris 167 Stepping v. Gladding, or Gladen 326 Stevens and Attersoll 537 Stevens v. Carrington 32 Stevenson and Hanson .... 510 Stevenson and Hesse , 379 Stevenson v. Lambard . . 43. 65. 195. 229. 426. 468. 492. 493. 495 Stevenson v. Powell 338 Stevinson's case 28. 32 Steward and Mayor 69. 181 Stewart and Ely (Dean and Chapter of) 293 Steymaker and Copping. .. . 407 Stibbert and Taylor 234. 255 Tablt of Cases cited. xlv Page Stile v. Herring 47 Stoker and Grigg 601 Stokes v. Russell 462 Stokes and Russell 462 Stone v. Evans 489 Stone v. Gilliam 33 Stone v. Greenwell 272 Stone and Rayner 294 Stone and Slater 75. 78. 291 Stone v. Yea 480. 573 Stoneley and Isteed .. 195.251. 470. 524 Storer v. Gordon 8. 84 Stransham and Swan . . 450. 459 Strathfield v. Halliday 134 Stratton and Scudamore . . 246 Street v. Rigby . . 147. 148. 149. 150 Strickland and Evers, or Ewre 9. 10 Stuart, ex parte 229 Stuart v. Smith 273 Stubbs v. Parsons 219 Stuckey and Barford 8 Studholme v. Mandell . . 24. 595 Studley and Feilder 375 Style v. Hearing 46 Suffield v. Baskervil 37 Sumner v. Powell 121 Sutherland v. Lishnan .... 17 Swaine and Hookes 140. 142 Swaine and Zouch .... 353. 355 Swann and Fox 414 Swan v. Scarles 42. 459 Swan v. Stransham. . . . 450. 459 Swanton v. Biggs 208 Sweet v. Anderson 233 Sweeting and Dyke .. 305. 449. 452 Swetnam and Porter. .42. 44. 51. 195.459.468 Swift and M< Alpine 258. 301 Swinerton and Butler . . 337. 338 Swinnerton v. Miller 537 Sydall and Overton 490 Sydenham and Rich 110 Sydenham and Richardson, 237. 255. 256 Symms v. Smith . . 152. 353. 553 Symon and Acton 544 Page Syms and Dumper, 413. 425.426. 438 Synge and Howe 221 . 580 Tailor and Griffin 165 Talmage and Zinzan 151 Tanner and Andrews 331 Tanner v. Florence, 251. 255. 471 Target v. Lloyd 484 Tarleton v. Staniforth 192 Tatem v. Chaplin 467 Tatlock and Naish 510 Tattersall v. Groote 146 Taunton's case 413 Taunton and Berry .... 408. 41 3 Tayleur v. Dickenson 542 Taylor and Crane 248 Taylor v. Debar 344 Taylor and Derby (Earl of), 485 Taylor v. Dulwich Hospital. . 247 Taylor and Garret 129 Taylor and Holder, 37. 46. 47. 75. 328 Taylor v. Reed 271 Taylor v. Shum . . 194. 483. 494. 504. 506 Taylor v. Stibbert 234. 255 Taylor and Waters 149 Taylors' Company and Davis, 240 Terry v. Duntze 99 Testar and Horsfall 29 1 Thayer v. Gould 176 Theed v. Starkey 222 Theobald and Warner 545 Thistleton and Sicklemore . . 137. 371 Thomas v. Cadwallader . . 79. 83. 95. 103. 106 Thomas v. Frazer 121 Thomas and Lenthall 151 Thomas and Mackworth .... 552 Thomas and Mucklestone. . 101 Thomas v. Pemberton ..... 509 Thomas v. Ward 74 Thompson v. Brown .. 84. 105. 59 1 Thompson v. Charnock. 147. 149 xlvi Table of Cases cited. Page Thomson and Ciark 600 Thorn and Allen .. . . 314 Thornborough and Hodgson 197 Thornbury and East 219. 222 Thorne and Jones 445 Thornhilv. King . . 422. 425. 427 Thornton and Nutbrown,560. 564 Thorold and Barker 26 Thoroughgood and Collins . . 458 Thorpe and Pembroke 297 Thorpe v. Thorpe S3. 96. Thrale v. Cornwall 531 Thre'r v. Barton 542. 585 Thresher v. East London Waterworks 270 Throgmorton and Wye .... 356 Thursbv v. Plant, 490. 531. 533. 538.539 Thurseden v. Warthen's Ex- ecutors 456 Thymbelbye and Pexpoint . . 145 Tickell and Craven 299 Tiley and Ford 245. 595 Till and Coslake 561 Tilney v. Norris 458. 466 Tinckler v. Prentice 221 Tippet v. Hawkey 130 Tisdalev. Essex 313. 319 Titterell and Simpson 37. 72 Tomkies and Lloyd 197. 320 Tomles v. Chandler 37 Tomlinson v. Brown 537 Tomlinson and Sands 1 65 Tompson v. Miles 584 Tongue v. Pitcher 494 Tooley v. Nicholls 157 Toomes v. Chandler 37 Topping and Ilex 418 Tothil v. Ingram 592 Toulmin and Hammond .... 209 Tovey and Pitcher, 194. 195.455. 494. 495. 504 Tracy and Dean 589 Trant and Fitzgerald 593 Treackle v. Coke 194. 497 Trench v. Trewin 1 06 Trenchard v. Hoskins.. 137. 309. 369. 376 Tresham and Lamme 328 Trevett v. Aggas, or Angus. . 593 Page Trevil v. Ingram 592 Trewin and Trench 1 06 Treyne and Heron 351 Tritton v. Foote 237. 249 Trussel's case 492 Trussel and Banyster 492 Trye and May, or Mayhur . . 40. 575. 578 Turner and Beany 76 Turner v. Benny, or Benson, 153. 158 Turner v. Goodwin 88 Turner and Praund 593 Turner v. Bichardson .. 411. 508 Turpin and Marrow 492 Tursaker v. Robinson 553 Tuton and Franklyn 298 Twells and Jordan 197 Twentiman and Lawrence . . 583 Twibill and Cooper 472 Twiford v. Buckly 597 Twiibrd v. Warcup 337 Twyford v. Buntly 597 Twynam v. Pickard . . 229. 426. 495. 536 Tyndal v. Hutchinson 545 U. Udney and De Minckwitz . . 253 Ughtred's case 105 Umble v. Fisher 196 Underhill and Northcott. . . . 577 Unwin v. Wolseley 27 Upton and Marks 210 Urmston v. Pate 355 Urton and Atkins 344 Uton and Atkins 344 Uxbridge (Lord) v. Staveland, 429. 447. 482. 533 V. Valliant v. Dodemede.. 499. 504 Vandenanker v. Desbrough, 251 Vandenstene and Scudamore, 8 Vanderplank and Arthur. ... 491 Table of Cases cited. xlvii Page Vaudstevan and East Skid- more 8 Vane v. Lord Barnard 331 Vaugh and Brittin 503 Vaughan and Cabell .. 133. 135. Vaughan and Evans 326 Vavvser v. Jeffry 154 Ventrice v. Goodcheape .... 491 Vere v. Loveden 434. 439 Vernon and Jackson 486 Vernon v. Jeft'erys 18 Vernon v. Smith, 183. 185. 251. 466.471. 527 Vine and Forte 319 Vipon v. Rowley 258 Virgin and Mosely 294. 298 Vivian v. Champion. . . .289. 516 Voux v. Gleas 1 65 Vyvyan v. Arthur, 41. 43.52. 195. 468. 477. 519. 533. 534 W. Wade v. Bemboe 9 Wade and Graham 218 Wadham and Heard 84. 89. 105. 544. 592 Wadham and Roach, 65. 178. 465. 482 Wadman v. Calcraft, 205. 207. 303. 423 Wafer v. Mocato 423 Wake and Odell 487. 494 Wakeman v. Duchess of Rut- land.. 388. 394. 397. 400. 401 Wakeman and Walker . 100 Walcot v. Goulding 553 Waldegrave and Allen .... 27 Waldo v. Martin 569 Waldronand Hill 160 Walker's case 197. 490 Walker v. Bellamie 427 Walker and Browne 75. 78 Walker v. Harris 86. 98. 196 Walker v. Nicholson Ill Walker and Powley 267 Walker v. Priestly 553 Walker v. Reeves. .487. 488. 506 Walker and Robinson, ..117. 118 Page Walker and Sacheverell .... 517 Walker v. Wakeman 100 Walker v. Walker 31 Waller v. Norwich (Dn. and Ch. of) 575 Walshe aud Evans 250 Walton and Eothergill 84. 90 Walton v. Waterhouse .... 274 Warcup and Twiford 337 Ward v. Buckingham (Duke of) 564 Ward and Maxwell, 234. 243. 258. 259. 262 Ward and Northcote 307 Ward and Thomas 74 Ware v. Chapped 78 Warn v. Bickford 327. 342 Warner and Goring . . . .416. 418 Warner v. Theobald 545 Warner and White 193 Warren v. Asters 100 Warrington and Radcliffe . . 301 Warthen's Executors and Thurseden 456 Wase and Emery 170 Wasey and Preston 1 69 Waterhouse and Walton .... 276 Waters v. Taylor 149 Waters and Weigall 198. 275 Walkin and Ards 492. 495 Watson v. Atkins 218 Watson and Godfrey 267 Watson v. Hems worth Hos- pital 246 Watson v. Hinsworth Hos- pital 246 Watson v. Home 217 Waugh v. Land 401 Weale v. Lower 164 Weare and Jerritt 320 Weatherall and Geering, 64. 251. 405. 420. 439 Webb and Parker, 195. 468. 491 Webb v. Russell, 52. 69. 461 . 531 . 533. 538. 542. 585 Webber v. Smith 295. 300 Weeden and Halley 451 Weigall v. Waters 198. 275 Welch v. Myers 509 Weldon and Astley 549 xlviii Table of Casts cited. Page Welland and Balfour 244 Wellington v. Mackintosh . . 148 Wells and Bally, 186.427.467. 470 Welsh and Beck d. Hawkins, 345 Welsh and Fowle ,141. 317 Welsh and Wilson 161 Welson and Lupart 26 West and Davis 301. 566 West and Kidder 329 Westdeane and Frizell .... 1 65 Westerdell v. Dale 489 Weston and Belfour 197. 198 Westroray and Mathuris. . . . 535 Westwood and Matures, 491. 535 Wey v. Yally 533 Wharton v. Wharton 164 Wheeler v. Baker 495 Wheeler v. Bramah 509 Wheeler and Bull 458 Whelley and Brick 170 Whistler v. Mainwaring .... 293 Whitbread and Savage .... 387 Whitchcot v. Fox . . 74. 425. 428 White and A infield 211 White and Baker 571 White and Cuyler 112 White and Dunnage 110 White and Foljambe 401 White v. Middleton 1 05 White v. Parkin 591 White v. Sealy 550 White v. Small 109 White v. Warner 193 Whitehead and Bryson .... 572 Whitfield v. Brandwood .... 216 Whitfield v. How 48 1 . 482 Whitley v. Loftus 111. 112 Whitlock's case 542 Whitmel v. Farrel 557 Whitway v. Pinsent, 455. 491. 494 Whittle and Rust 165 Wigg v. Shuttleworth . . 221. 580 Wigg and Wilson 458. 491 Wildey v. The Coopers' Com- pany 220 Wilkinsv.Frv, 17. 131. 179.180. 431. 455.483. 493 Wilkinson v. Lloyd 125 Page Wilkinson v. Meyer 76 Wilkinson v. Wilkinson, 404. 419 Willams v. Hide 285. 583 Willan v. Willan 249. 559 Willettv. 518 Williams and Aylet 575 Williams v. Bosanquet, 486. 489 Williams and Buckley 314 Williams v. Cheney 254. 410 Williams and Ferry 104 Williams v. Lloyd 583 Williams and Lougher, 65. 267. 516. 517 Williams and Price 148 Williams and Rashleigh, 314. 317 Williams and Roper 299 Williamson and Bromefield, 284. 484 Williamson and Chamberlain, 521 Williamson v. Codrington . . 28 Willingham v. Joyce, 251. 252. 253 Willis v. Jernegan 1 09 Wills, Ex parte 345 Wilson and Ford 1 37. 362 Wilson and Hastings 510 Wilson and Johnson, 127. 131. 576. 579 Wilson and Jourdain 471 Wilson v. Knubley 453 Wilson and Smith. . 84. 105. 591 Wilson v. Welsh 161 Wilson v. Wigg 458. 491 Winch and Coleman 452 Winchester (Dn. & Ch. of) and Wither 565 Windham's case 124 Windsor's (Dn. & Ch.) case, 267. 466. 467. 468. 523 Windsor (Lord) v. Burry, 412. 413. 421 Winstone v. Linn 73 Winter v. D'Evreux. . . . 164. 166 Wise and Oxford (Bishop of) 215 Wiseman and Bragg. . . . 42. 459 Witchcot v. Nine 329 Wither v. Winchester (Dn. & Ch. of) 565 Withers v. Bircham, 123. 125. 131 Table of Cases cited. xlix Page Withers v. Pinchard 166 Witherington and Levett, 327. 328 Wivell and Ingolsby , 285 Wolseley and Unwin 27 Womack and Bennett.. 219. 431 Wood v. Avery 287 Wood v. Day 290 Wood and Peck 271 Wood v. Pesey 154 Wood and Worsley .... 86. 105 Woodroff v. Greenwood .... 318 Wood row and Glazebrook, 87. 89. 106. 137 Woodward and Arnsby .... 428 Woodward v. Gyles 564 Woodward v. Lincoln (Earl of) 449 Woodward and May, 117. 118. 134 Woolley and Bryan 170 Woolmer and Raynolls, 311. 577 Wootonv. Hele 10. 113. 157 Worcester and Birmingham Canal and Gough 298 Worsley and Doe d. Holland, 407. 409 Worsley v. Wood 86. 105 Worsop and Ross (Earl of), 233 Worth and Rook 274. 297 Wotton v. Cooke, 124. 353. 514 Wright and Bradbury 214 Wright and Browning, 48. 358. 364. 385. 387 Page Wright and Harrison 549 Wright and Lock, 13. 17. 55. 72. 85 Wright and Steele, 198. 199. 202. 275. 278. 280 Wyatt and Cooper 421 Wye and Huckle 481 Wye v. Throgmorton 346 Wyllie and Neale 287 Wynne v. Fellowes 597 Wyvill v. Stapleton 88 Yally and Wey 533 Yate and Rolls 126. 128 Yates v. Boen ] 08 Yaw v. Leman 216 Yea and Field 232 Yea and Stone 480. 573 Yeilding and Harnett, 240. 249. 431. 561 Yeo v. Leman 216 Young and Berry 231. 232 Young and Cooper 197 Youmzand Crosse 313.319 Z. Zinzan v. Talmage Zouch v. Swaine . 151 ...353. 355 TABLE OF STATUTES CITED OR REFERRED TO. 23 Hen. 8. c. 14. Outlawry 543 27 Hen. 8. e. 10. Uses 70. 115. 309.476. 542.589 31 Hen. 8. c. 13. Dissolution of Monasteries 527 32 Hen. 8. c. 34. Grantees of Reversions . . 43. 66. 251 . 527. 528 5 Eliz. c. 4. Apprentice. Void Covenant 576 13Eliz. c. 10. Renewal 247.248 13 Eliz. c. 20. Ecclesiastical grant. Void Covenant 578 14 Eliz. c. 11. Renewal 247. 248 18 Eliz. c. 1 1. Renewal 247. 243 43 Eliz. c. 6. Costs 546 21 Jac. 1. c. 19. Bankrupts. Further Assurance 345 15 Car. 2. c. 17. Bedford Level. Void Covenant 580 29 Car. 2. c. 3. Assets. Heir. Parol 451 3W.&M. c. 14. Assets. Liability of Heir 452 Devisee 453 A ction 548 8 & 9 W. 3. c. 1 1 . Bonds for performance, &c 550 6 Anne, c. 31. Fire 188 6 Anne, c. 35. Covenants under Yorkshire Registry Acts, 38. 306 7 Geo. 1. c. 28. South Sea Company. Liability of Assignee, 492 Avoidance of Covenant 589 4 Geo. 2. c. 28. Rent. Forfeiture 204. 206. 20S. 566 Renewal 264 8 Geo. 2. c. c. 6. Covenants under Yorkshire Registry Acts, 39. 306 1 Geo. 2. c. 28. Stage Entertainments. License 596 12 Geo. 3. c. 73. Fire 188 14 Geo. 3. c. 78. Fire 184,188 Insurance. Liability of Assignee 466 Repair. Party-walls 271.273 Tabic of Statutes cited. 1 1 19 Geo. 3. c. 30. Irish Tenantry Act 234 26 Geo. 3. c. 60. Ship Registry. Void Covenant 580 38 Geo. 3. c. 5. Land-tax 211 c.60. Land-tax 211 46 Geo. 3. c. 65. Property- tax 220. 221 Void Covenant 579. 580 49 Geo. 3. c. 121. Bankrupts. Rent 209 55 Geo. 3. c. 53. Property-tax 220 6Geo.4.c.l6. Bankrupts. Rent 209 7Geo.4.e.57. Insolvents. Rent 210.493 TABLE OF YEAR BOOKS CITED OR REFERRED TO. 4 Ed. 3.57 449 7 Ed. 3.65 449 38Ed.3.8,a 12.13.17 40 Ed. 3. 5, b 37.274.285 40 Ed. 3. 6 .583 45 Ed. 3. 11, 12 12. 14. 112 48 Ed. 3. 2,3 96 2 Hen. 5. 5 571 3 Hen. 6. 26, b 12.13 3 Hen. 6. 44, b 127 19 Hen. 6. 62 213 22 Hen. 6. 52 313 22 Ed. 4. 2, a 9 15 Hen. 7. 10. pi. 17 74 3 Hen. 8. 26. 18, b 17 26 Hen. 8. 3 314 27 Hen. 8. 6. pi. 29 134 27 Hen. 8. 29 366 TABLE OF FORMS IN THE APPENDIX. 1 . By one person 603 2. Several by two 603 3. Several by three or more 603 4. Several covenant in a release by three vendors, joint tenants, 603 5. Joint and several = 604 6. By each of four with the remaining three 604 7. By husbands for themselves and wives 604 8. Another form 604 9. On a sale by tenant for life and remainder-man in fee. . . . 605 10. By tenant for life and remainder-men in fee: each as to the acts, and for the estates and interests of himself, his wife, and trustees 605 11. To be answerable only to a certain extent 606 12. To the extent of share of purchase money 606 13. To the extent of one-sixth of damages recoverable under covenants 606 14. By several persons entitled to lands in unequal shares. . . . 606 1 5. Bv persons entitled in shares, extending to acts of testators, 607 16. By a person entitled to a third part 607 17. By two severally as to distinct fifth shares 607 18. By persons entitled in shares : several by three; joint and several by three others ; and several by another 608 19. By persons entitled to moieties in their own right 608 20. By two persons entitled in equal moieties, one in his own right, and the other in right of his wife 608 21. By husbands as to shares in thejr own rights, and in right of their wives 609 22. By vendors entitled in different shares, one being entitled jure uxoris 609 23. By intended husband and wife in a settlement of wife's pro- perty 610 24. By persons in their own right, and others in right of testator, 610 25. By a person entitled to an estate for life and reversion in fee, 610 26. By two persons severally in an assignment of lands demised to them by two distinct leases ; each as to the premises comprised in his lease 610 27. By each of two persons as to the deeds in his possession . . 611 28. Covenant to levy fine 611 A PRACTICAL TREATISE ON THE LAW OF COVENANTS. INTRODUCTORY REMARKS. The frequent insertion of covenants in modern deeds, their variety and capability of modification, afford the most satisfactory evidence of their use and efficacy. From the earliest periods they have been resorted to as a means of securing the due and punctual performance of contracts, and the facility with which they were rendered available in courts of justice, recommended them to general adoption. The multiplicity of decisions on the subject in past times also well attests its importance, and how largely it has engaged the deliberations of our judi- cial tribunals. For a long series of later years, the Law of Covenants has been of increasing interest, and the source of most anxious legal investigation. The principles have, consequently, become more uniform and settled than formerly, and the whole law assumes a more scientific and systematic cha- racter. Covenants, as Lord Eldon has observed (a), (a) 15 Ves. 264. B Introductory Remarks. may be for almost any thing ; and the most casual observer cannot have failed to perceive how very considerable a feature they constitute in almost every modern conveyance. In fact, no part of the instrument requires more scrupulous nicety of atten- tion. To all professional gentlemen a knowledge of the Law of Covenants cannot prove otherwise than of the utmost utility ; but to the real property law- yer in particular, an intimate acquaintance with their nature, construction, and operation, is absolutely indispensable. His avocations necessarily bring his mind hourly in contact with that branch of the law ; and unless he make himself perfectly familiar with its details, it is impossible for him to perform his required duties with honor to himself, or advantage to those who seek the benefit of his information and assistance. In the following sheets will be considered — First, The nature and kinds of covenants, and of the par- ties thereto ; Secondly, The general rules of construc- tion ; Thirdly, The construction of, and other matters connected with, covenants of most ordinary occur- rence in practice ; Fourthly, The liabilities and rights arising from covenants ; Fifthly, The remedies and relief incident thereto ; and Lastly, will be no- ticed those covenants which are ab initio void ; and the means by which others, valid in their creation, may be discharged or suspended. PART THE FIRST. OF THE NATURE AND KINDS OF COVENANTS, AND OF THE PARTIES THERETO. CHAPTER THE FIRST. OF THE NATURE OF COVENANTS. A covenant may be defined to be an agreement Definition, between two or more persons, by an instrument in writing, sealed and delivered ; whereby some of the parties engage, or one of them engages, with the other or others of them, that some act hath or hath not already been done ; or for the performance or non-performance of some specified duty. It has been said, that in general covenant will not lie on a contract in pr&senti, as on a covenant to stand seised (b) ; or that a certain horse is yours (c) ; or shall henceforth be the property of another (cl) ; yet, without doubt, in some cases, on a covenant in prcesenti, as that the covenantor is absolutely seised of an estate of inheritance, and hath good right to (6) Pybus v. Mitford, 1 Mod. Law, 49, [b]. 121. 159; S. C. 2 Lev. 75; (c) Shep. Touch. 162. Freem. 351 ; T. Raym. 228 ; (d) Plowd. 308 ; Finch's Law, 1 Vent. 372 ; 3 Keb. 129. 239. 49, [b]. 316.338. Plowd. 308. Finch's B 2 4 Of the Nature of Covenants. [Part I. convey, an action may be maintained (e). So a covenant that terminates in itself is not properly a covenant, but a defeasance (f) ; as a covenant by a lessee that the demise shall be void, which will have the effect of determining the lease, and will in consequence disable him from suing on the lessor's covenants. The lien. That part of a covenant which precedes and -in- troduces the subject matter of the agreement itself, and binds or obliges the covenantor to the observ- ance of his contract, is denominated the Hen. By its aid is limited the extent to which the cove- nantor is willing to render himself liable. He may covenant for himself alone, or for himself and the acts of his wife; singly or severally as to some; jointly with reference to others ; as far as regards his own estate or interest, or the estate or interest of another. In short these liens may be modelled and adapted to any situation, object, or combination of circumstances, however complicated (g). Covenantor. The party entering into the covenant is called the covenantor, and he with whom it is made, the Covenantee, covenantee. The rule that a covenant cannot be created but (e) Kingdon v. Nottle, 4 Mau. pendix of the liens chiefly used & Selw. 53. in modern practice will, it is (/) Plowd. 138. 308, a. hoped, prove a valuable addition (g) The insertion in the Ap- to this work. Chap. I.] Of the Nature of Covenants. by deed (h) is, with two or three exceptions here- after noticed (/), universally true ; and it is equally true, that on any writing in the nature of an agree- ment under hand and seal, covenant will lie (A:). Thus on a bond it is supportable, for it proves an agreement (/) ; and whether the deed be an indenture or deed-poll is immaterial (w). "Where the latter instrument is used, it need not of course be executed by the covenantee, although he must be named therein (w) ; his acceptance being such an assent to the contract as will render it binding (o) ; and the party must have the deed to show (p). Therefore, where in covenant the plaintiff declared that J. S. being arrested at his suit, and in the custody of the bailiff, he the defendant, in consideration that the plaintiff would order the release of J. S., promised and engaged to bring in the body of J. S. into the custody of the bailiff on such a day, on demurrer it was held that the action would not lie, the plaintiff not being named in the agreement {q). (Ji) Fitzh. N. B. 145. A. G. Shep. Touch. 160. Metcalfe v. Rycroft, 6^ Mau. & Selw. 75. Burnett v. Lynch, 5 Barn. & Cres. 602 ; S. C. 8 Dow. & Ry. 368. (i) Post, p. 9. (k) Holies v. Carr, 3 Svvanst. 647, 8 ; S. C. Rep. temp. Finch, 261 ; 2 Mod. 86; 2 Freem. 3. (0 Hill v. Carr, 1 Ch. Ca. 294. Holies v. Carr, 3 Swanst. 648. O) Rol. Ab. 517. Bac. Ab. 529. Covenant, (A). Fitz. N.B. 145. K. (?i) Green v. Home, 1 Salk. 197; S. C. Comb. 219, semb. cont. Nurse v. Frampton, 1 Lord Raym. 28; S. C. 1 Salk. 214. See Ex parte Richardson, 14Ves. 187. Collins v. Plumb, 16 Ves. 454. (o) 4 Cru. Dig. 393. 3d Ed. (p) Shep. Touch. 162. (q) Green v. Home, sup, Of the Nature of Covenants. [Part I. So much does the word covenant imply a deed, that there is no occasion to allege in a declaration, that the deed containing the covenant was under the defendant's seal ; the circumstance of sealing must be inferred (f) ; and even if it be stated that the defendant covenanted, and the instrument declared on be not sufficiently shown to be a deed, the defect is cured by pleading over (*). But where the plaintiff declared, that the defendant, by a certain writing made at Westminster, under his own proper hand, granted the plaintiff an annuity, and covenanted for payment, the court were against the plaintiff on the face of his own declaration ; because an action of covenant could not be supported upon this writing, unless it were a deed, and it did not appear to be a deed upon the face of the declaration, not being laid to be sealed with his seal. They also said, that its being laid with a profert hie in curia could not help it, though it should be found on production to be a deed ; but they allowed, that if the plaintiff had declared that the defendant had granted this annuity per factum suum, it would have been good (t). It is proper to mention, that a deed-poll contain- ing a covenant to insure against fire may refer to conditions in a printed paper without stamp, seal, or (r) Atkinson v. Coatsworth, 1 temp. Hardw. 342. Stra. 512 ; S. C. 8 Mod. 33. (t) Moore v. Jones, 2 Stra. Aldworth v. Hutchinson, Lutw. 814 ; S. C. 2 Ld. Raym. 1536 ; 98. Nels. fol. ed. 1 Barnard. K. B. 62. 85. (s) Dodd v. Atkinson, Ca. Chap. I.] Of the Nature of Covenants. signature, and the paper shall be considered as part of the deed itself (it). An indenture not inter partes will have the ope- ration of a deed poll, on which debt, and covenant also, may be maintained by a party not executing. A deed was drawn in the following terms : " This indenture charter-party witnesseth that Benly, mas- ter and part owner of a ship, with the consent of Cooker (the plaintiff), the other part owner, lets the ship to the defendant for a voyage ;" the defendant covenanted to pay Benly such a sum as master ; and covenanted with the said Benly, and likewise with Cooker, to pay Cooker 300/. ; and for non-payment, Cooker brought this action of debt on the charter- party. The court were of opinion, that as this was not an indenture between parties, but only a deed poll, the party might covenant with a stranger, and also with other persons, to do several other acts, for which every one severally might bring his action (v). Had the deed been inter partes, he who was a party to the deed could not covenant with another who was no party ; but where one, a mere stranger, and not named a party, (the instrument being inter partes,} covenanted with another who was named, and sealed the deed, he was held to be bound by his sealing. This distinction has been often taken (w). (u) Routledge v. Burrell, 1 H. v.Lucke, Lutw. 93. Nels. fol. ed. Blac. 254. Clement v. Henley,2 Rol. Ab. 22. (v) Cooker v. Child, 2 Lev. 74 ; Faits, (F) 2. S. C. 3 Keb. 94. 11.5. Low- (w) Salter v. Kidgly, Carth. ther v.Kelly, 8Mod. 115. Lucke 76 ; S. C. Holt, 210 ; 1 Show. Of the Nature of Covenants. [Part I. Where one agreed to let a house to another at a cer- tain rent, and a stranger covenanted on behalf of the lessee, that he (the lessee) should pay the rent, the court decided that on this deed, the defendant, although not a party, was clearly liable to an action of covenant, in consequence of his having sealed. And very recently a similar judgment was pro- nounced. The declaration stated that by indenture between J. Drummond and C. Drummond, in his lifetime, (whom plaintiffs survived,) of the first part, the dowager baroness Southampton, then guardian of Charles Lord Southampton, (plaintiff,) of the se- cond part, and the defendant, and one G. R. of the third part, J; D. and CD., since deceased, with the assent of Lady Southampton, did demise to de- fendant and G. R. certain premises therein men- tioned; habendum for twenty-one years; reddendum unto the said Charles Lord Southampton and the heirs male of his body, and for default of such issue, unto such other person or persons as for the time being should be entitled to the remainder or rever- sion of the same premises, expectant on the deter- mination of the said demise, during the residue of the said term, a certain yearly rent; and defendant and G. R. severally covenanted and agreed with 58. East Skidmore v. Vaudste- & Selw. 75. Berkeley v. Hardy, van, Cro. Eliz. 56; S.C. nom. 5 Barn. & Cres. 355; S. C. Scudamorev.Vaudenstene,2Inst. 8 Dow. & Ry. 102. Barford v. 673; 2 Rol.Ab. 22. Faits, (F)l. Stuckey,5 J. B. Mo. 22 ; S.C. Storerv. Gordon, 3 Mau. & Selw. 2 Brod. & Bing. 333; 1 Bing. 322. Metcalfe v. Rycroft, 6 Mau. 225. Chap. I.] Of the Nature of Covenants . Charles Lord Southampton, and with J. D. and CD., and the survivor, and the heirs of the sur- vivor, that they would pay the said yearly rent unto the said C. Lord Southampton, &c. (according to the reddendum) : the court held, that upon the face of this lease, they were not at liberty to presume that any interest passed except from J. and C. Drum- mond. Lord Southampton was a stranger to the indenture, and could not join in any action for non- performance of the covenant contained in it (,r). Some instances, (being the exceptions before al- luded to,) are to be found of covenants created with- out deed. By the custom of London an action of covenant may be maintained without a specialty (3/). In the city of Bristol there is also a custom, that conventio ore tenus facta shall bind the covenantor as strongly as if it were made in writing ; but the cus- tom will not warrant an action against an executor ; for the covenant binds the covenantor only by cus- tom, and shall be taken strictly (*). Another instance of a covenant arising against the party without his deed is to be found in the case of the king's lessee by patent, who, although there is no sealing by such lessee, is liable upon his covenant in the patent (a). For when he takes by patent he (x) Lord Southampton v. (z) Wade v. Bemboe, 1 Leon. 2. Brown, 6 Barn. & Cres. 718. (a) Ewre v. Strickland, Cro. (y) 22 Ed. 4.2, a. Priv.Lond. Jac. 240 ; S. C. nom. Evers v. 149. Fitz. N. B. 146, A. Com. Strickland, 1 Bulstr. 21. but this Dig. London, (N. 1.). point not noticed. Brett v. Cum- 10 Of the Nature of Covenants. [Parti. consents to all things therein, and the words in that clause or sentence are as spoken by him (b). Another reason given is, because the lessee takes by matter of record, and although in show they are the words of the lessor only, yet the lessee accepting and enjoying the premises demised, it is as well his cove- nant in fact, and shall bind him as strongly, as if it had been a covenant by indenture (c). This, it will be noticed, is on a transaction between the king and a subject (d) : whether the principle can be extended to cases between subject and subject is now to be discussed. A proposition has been advanced, and received without scruple by the profession, that a person may, by certain acts of his own, such as his accept- ance of an interest conveyed by a deed which he never executed, bind himself to perform all the cove- nants and conditions therein contained, as effectually as if he had in a formal manner sealed and delivered the instrument. This, it is to be observed, is totally independent of any custom or usage or matter of re- cord. As the position has been transcribed from book to book, and has at different times been adopted berland, Cro. Jac. 399. 521 ; when inserted in grants from the S.C. 3 Bulstr. 163 ; 1 Rol. 359; crown, which will not have the 2 lb. 63; Poph. 136 ; Godb.276. same operation in deeds between Wooton v. Hele, 1 Mod. 291,2. subjects; as, ad faciendum ; fa- (b) Ewre v. Strickland, sup. ciendo; ed intentione ; ad effect- (c) Brett v. Cumberland, sup. um ; ad proposition ; ad solven- (d) In like manner, certain dum ; Co. Lit. 204, a. 10 Co. words will constitute a condition 42, a. Chap. I.] Of the Nature of Covenants. 11 in the works of gentlemen highly distinguished for their legal attainments (e), the author feels consider- able diffidence in venturing to deviate from the beaten track, and to submit his own views in opposition to the opinions entertained by more experienced mem- bers of the profession ; but the ground on which their opinion is founded seems too much at variance with the broad, settled distinction between instruments under seal and those not under seal, and to clash too materially with the technical nature of an action of covenant, to be dismissed without some investiga- tion of, and observations on the authorities cited in support of the position. The case referred to in almost all the books in favor of the doctrine is to be found in Co. Lit. 231, a. and is as follows : — ." An indenture of lease was engrossed between A. of the one part, and D. and R. of the other part, which purported to be a demise from A. to D. and R. A. sealed and delivered the indenture, and D. sealed the counterpart to A. ; but R. did not seal and deliver it. And by the same indenture it is mentioned, that D. and R. did grant to be bound to the plaintiff in 20/., in case certain conditions comprised in the indenture were not per- formed. And for this 20/. A. brought an action (e) 4 Cru. Dig. 393. 3d. Ed. 164. 1 Rol. Rep. 359. 2 Ibid, s. 4. where the word by two per- 63. Co. Lit. 230, b. note (1) by sons is inserted instead of to. Butler. Co. Lit. by Thomas, Com. Dig. Covenant, (A. 1.) Vin. vol. ii. p.229. n. (F). Burnett v. Abr. Condition, (I. a. 2.) Dy. Lynch, 5 Barn. &Cres. 596; S.C. 13 ; b. pi. 66. 2 Rol. Rep. 63. 8 Dow. & Ry. 368. recognised by Lord Coke, 3 Bulstr. 12 Of the Nature of Covenants. [Parti. against D. only, and showed forth the indenture. The defendant pleaded, that it was proved by the indenture that the demise was made to D. and R., which R. was in full life, and not named in the writ. The plaintiff replied, that R. never sealed and deli- vered the indenture, and so his writ was good against D. sole. And there the counsel of the plaintiff took a diversity between a rent reserved, which was parcel of the lease, and the land charged therewith, and a sum in gross, as here the 20/. were ; for as to the rent, they admitted, that by the agreement of R. to the lease he was bound to pay it ; but for the 20/., that was a sum in gross and collateral to the lease, and not annexed to the land, and grew due only by the deed ; and therefore R., said he, was not chargeable therewith, for that he had not sealed and delivered the deed. But, inasmuch as he had agreed to the lease, which was made by indenture, he was charge- able by the indenture for the same sum in gross ; and, for that R. was not named in the writ, it was adjudged that the writ did abate." And for this the cases in the note (/) are cited by Coke. That the case is good law there is no reason to doubt, but the misapprehension and misrepresenta- tion of the kind of action have been the occa- sion of the seeming error into which the followers of Lord Coke have fallen. It will be observed, that in the passage just quoted the words are ; " And for this 20/. A. brought an action against D. only," using the word action generally, without confining it (/) 38 Ed. 3. 8, a. 3 H. 6. 26, b. 45 Ed. 3. 11, 12. Chap. I.] Of the Nature of Covenants. 13 to any particular class. On reference, however, to the year book, 38 Ed. 3. 8, a., from which the case is extracted, the form of the action proves to be debt and not covenant. It is not necessary here to enter into an inquiry whether debt could be maintained under the circumstances (g) ; it is sufficient to shew that the case referred to does not warrant the posi- tion that covenant can be supported against a party, who, without executing the deed, has availed him- self of a benefit under it. The case in the year book, 3 H. 6. c. 26. (A), to which reference is made in Co. Lit. was also an action of debt^^xiA related to the defeasance of an obligation. The object of the suit was to recover from one T. B. twenty marks on his bond. The defendant pleaded a deed executed by the obligee, subsequently to the date of the bond, to one J. H., which recited the bond, and then granted that if the said J. H. should perform certain conditions, then the bond should be void. It was averred that J. H. had performed the conditions, and the question be- fore the court was, whether the defendant, being a stranger to the deed of defeasance, could by his plea take advantage of it. The case was twice argued, but ultimately judgment was given against the defendant by three judges against the opinions of two dissentient, the Chief Baron being in favor of the plaintiff. (g) Lock v. Wright, 1 Stra. {h) The former part of the case 570 ; S. C. 8 Mod. 40. will be found, ibid. p. 18. 14 Of the Nature of Covenants. [Parti. How little this case bears upon the point is evi- dent ; but if it possesses any influence at all, it must be admitted, that the decision, denying the defend- ant, on the score of his being a stranger, the privi- lege of pleading the defeasance, militates against rather than supports the proposition advanced. Next in order in Co. Lit. is 45 Ed. 3. 11, 12. ; but this case has less relation to the question than the preceding. The plaintiff had leased a manor to a man and wife for the term of their lives, rendering twenty marks a year rent, and they obliged them- selves that the plaintiff should have such surety for payment of the money as his counsel should devise. On their refusal, a writ of covenant was brought against them both, and on an objection that the wife should not have been joined in the action, the writ was quashed. The principal difficulty to be surmounted is the sanction which the proposition appears to have re- ceived from a most profound lawyer and able judge in a very recent case (z) ; but when all the circum- stances attending that recognition are considered, it is submitted that the observation of Lord Tenterden, then Lord Chief Justice Abbott, is not conclusive on the point. The case was — the executors of a lessee, for years assigned by a deed-poll the demised pre- mises to one Lynch (the defendant) for the residue of the term, under and subject to the payment of the (i) Burnett v. Lynch, 5 Barn. & v. Morris, 1 Ves. & B. 14. Cres. 602. See likewise Staines Chap. I.] Of the Nature of Covenants. 15 rent reserved by the original indenture, and the performance of the covenants therein contained, &c. Lynch took possession and occupied the premises under this assignment, and before the expiration of the term assigned over. The lessor sued the execu- tors of the lessee for breaches of covenant committed during the time that Lynch continued assignee of the premises, and recovered damages against them . The question then before the court, as far as our subject is concerned, was, whether an action on the case founded on the tort could be maintained against Lynch, for having neglected to perform the covenants during the time that he continued assignee, whereby the executors sustained damage ; and it was deter- mined that it could. In delivering his opinion, the Lord Chief Justice said (&), "It has been contended, that if any action will lie, it must be an action of covenant. I think an action of covenant is not main- tainable, for an action of covenant is of a technical nature. It cannot be maintained except against a person who, by himself or some other person acting on his behalf, has executed a deed under seal, or who (under some very "peculiar circumstances, such as those mentioned in Co. Lit. 231 a.) has agreed by deed to do a certain thing." Now it is clear that this observation is far from being a judicial determi- nation of the point ; and this is more apparent from the circumstance, that neither of the other Judges (Bayley, J. Holroyd, J. and Littledale, J.) in any way even alluded to the case in Co. Lit. The Lord Chief Justice, relying on counsel for the accuracy (*) 5 Barn. & Cres. 602. 16 Of the Nature of Covenants. [Parti. of their citations, was evidently misled by its being quoted as an action of covenant (/) ; and that, not from the fountain head, the year book, but from another quotation of the case, as founded on a writ of covenant, in an argument in 2 Rol. Rep. 63. ; and finding it impossible to reconcile the incon- gruity with the general principles and technical nature of an action of covenant, and believing that the case referred to was in covenant, and not in debt, treated it as an exception from the general rule. The general adoption of this error, if error it be, has manifestly been occasioned by the constant re- ference to the case as cited in Rol. Rep., instead of at once seeking the decision in the year book. Had the latter course been pursued, it is probable that the case would not have been quoted in Burnett v. Lynch, in support of the position there contended for ; nor have derived additional weight as an autho- rity, that a person shall be liable in covenant, al- though he never executed the deed, in consequence of the notice taken of it by the Lord Chief Justice. The situation of a party taking an interest by means of such an instrument closely resembles that of a person to whom a conveyance has been made by deed-poll ; and the author does not hesitate to assert, that no instance can be found of an action of covenant having been entertained by the courts against one claiming under a deed-poll. He has used every diligence in consulting the books, and has made frequent inquiries of his professional (/) 5 Barn. & Cres. 596. Chap. I.] Of the Nature of Covenants. 17 friends, but has not been able to discover any case in which a lessor has come before the court in an action of covenant against his lessee on a lease by deed-poll, and has had a decision in his favor (pi). On the contrary, it has been adjudged, that on a deed- poll mutual covenants cannot arise, as it is the deed of one party only (n). Indeed in Burnet v. Lynch, the court expressly denied the liability of the as- signee, on the ground of his not having executed the deed. And moreover, on a plea of non est factum in such a case, where the bare question is deed or no deed, it would seem impossible to establish an in- denture against the defendant who never sealed, so as to render him liable in covenant. The above, then, are the cases on which this strange doctrine rests ; two of them being actions of debt (0) ; the third totally unconnected with the subject (p) ; and the last, it is humbly submitted, a mere obiter dictum (q) ; and the foregoing are the (m) The generality of the po- lease was by deed-poll or inden- sition in the text may not at first ture. sight appear to be consistent with (n) Lock v. Wright, 1 Stra. the subjoined cases, but on a 571; S. C. 8 Mod. 40. And see strict examination of these au- Bidwell v. Lethbridge, 1 Barnard, thorities the above proposition, it 235. Sutherland v. Lishnan, is submitted, will be found to be 3 Esp. 42. Kimpton v. Eve, warranted to its fullest extent. 2 Ves. & B. 353. Co. Lit. 363, Chancellor v. Poole, 2 Dougl. 764. b. Stainesv. Morris, 1 Ves. & B. 14. (o) 38 Ed. 3. 8, a. 3 H. 8. Wilkins v. Fry, 1 Meriv. 266. 26. 18, b. From the imperfect report of (p) 45 Ed. 3. 11, 12. Norris v. Elsworth, Freem. 463. (g) Burnett v. Lynch, 5 Barn, it cannot be collected whether the & Cres. 602. 18 Of the Nature of Covenants. [Part I. reasons which induce the author to maintain that an action of covenant can only be supported, (with the exceptions above noticed, the one founded on custom, the £>ther on a contract between the king and the subject, and a matter of record,) against a person, who by himself or some other person acting on his behalf has executed a deed under seal. Perhaps, however, the doctrine has been too long sanctioned to be now reversed. At all events, it is an introduction of an equitable principle into a court of law ; the acceptance of a deed being considered equivalent to an actual execution by the lessee. But as the point may admit of some reasonable doubt, it would be extremely unsafe in practice to dispense with the execution of an indenture by the lessee, on the assumption that his entry and enjoy- ment under the lease would, of themselves, be suffi- cient to expose him to an action of covenant on breach of any of the covenants to be performed by him. It is scarcely necessary to mention, that a cove- nantee without executing the deed may bring an action of covenant against the covenantor (r), whether the instrument be a deed poll or an indenture ; for the right of suit is constituted by the covenantor's execution of the deed(^). (r) Clement v. Henley, 2 Rol. S. C. 5 Dow. & Ry. 152, Ab. 22. Faits, (F.) pi. 2. Petrie (s) Vernon v. Jefferys, 2 Stra. v. Bury, 3 Barn. & Cres. 353; 1146; S. C. 7 Mod. 358. CHAPTER THE SECOND. OF THE SEVERAL KINDS OF COVENANTS. SECT. I. OF AFFIRMATIVE NEGATIVE EXECUTED EXE- CUTORY — OBLIGATORY DECLARATORY AND DISJUNCTIVE OR ALTERNATIVE COVENANTS. With regard to their several kinds, covenants admit of a variety of divisions. They are either in the affirmative, that something is already performed or Affirmative. shall be performed hereafter ; or in the negative, that Negative. the party hath not performed or will not perform a certain act ; as that he hath not done, nor will do any act to incumber. A covenant of the first kind will not deprive a man of a right lawfully enjoyed by him independently of the covenant ; as if the lessor agree with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff. Here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedgebote without assignment ; but had the words been in the negative, that he should not take thorns without assignment, or that he should take by as- c 2 20 Of the several Kinds of Covenants. [Part I. signment and not otherwise, the case would be ma- terially altered (t). A negative covenant cannot be said to be per- formed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. Therefore, where a tailor assigned his trade to the defendant, and covenanted thenceforth to desist from carrying on the same business with any of the cus- tomers, and the defendant, in consideration of the performance thereof, covenanted to pay him a life annuity of 100/., it was held, that if the words in con- sideration of the performance thereof should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity ; because, as at any time during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not(V). The defendant, however, on a breach by the plain- tiff, might have his remedy by a cross action of co- venant (v). There is a difference also between a negative covenant which is only in affirmance of an affirm- ative covenant precedent, and a negative covenant which is additional to the affirmative covenant. A covenant by a person to sail from the river Thames to a certain place in Spain, the words of the cove- ts) Anon. Dy. 19,b. pi. (115). lSid.464; 1 Mod. 64 ; 2 Keb,. Shelley, J. dissent. 1 Leon. 251. 674. («) Hunlocke, or Humlock, v. (v) Ibid. Blacklowe, 2 Saund. 156 ; S. C. C hap .II.] Of the several Kinds of Covenants. 2 1 nant being, qudd decederet, procederet, ct non deviaret, is of the latter description ; for unless restrained by the negative covenant, quod non deviaret, which is additional, he might have departed and proceeded, and have gone to Africa or the West Indies (w). To a covenant of the former class a plea of performance generally is good ; but not to the latter ; the defend- ant in that case must plead specially (a). Where the covenant relates to an act already done E xecute( j it is usually termed a covenant executed ; and, e,ve- Executory. cutory, where the performance is future (j/). Between covenants obligatory, and covenants de- obligatory. claratory, there is this difference. The latter serve D ec i aratory . to limit and direct uses ; but the former, as that the party shall enjoy free from incumbrances, shall never be construed to raise an use, because they have another effect (s). Some covenants are framed in the disjunctive or Disjunctive alternative, giving the covenantor the choice of doing*, or Altern - & ° • . . & ative. or the covenantee the choice of having performed, one of two or more things at election ; as a covenant to make a lease to J. S., or to pay him 100/. at Michaelmas, as the covenantor, or, as the case may be, the covenantee shall prefer. The rule in these cases seems to be, that the party for whose benefit {w) Laugh well v. Palmer, 1 (x) Ibid. Sid. 87; S. C. nora. Lathwell (y) Shep. Touch. 161. v. Fisher, or Palmer, 1 Keb. 334. (z) Hore v. Dix, 1 Sid. 27. 372. 22 Of the .several Kinds of Covenants. [Part I. the alternative arises must do the first act, by de- termining his election. Therefore, where one Kerne covenanted to pay to Morris, his executors, &c. at the choice and election of Morris, within a month after the death of Lady Kerne, thirty pounds or twenty kine, it was decided, that the defendant might plead in bar the plaintiff's neglect to make his elec- tion within the month, as the covenantor was not obliged to tender both money and kine(V). But where the covenant was to deliver to the plaintiff at such a day and place twenty pounds or ten kine at the then choice of the covenantee, the court were clearly of opinion, that the defendant in pleading performance ought to show a tender to the plaintiff as well of the twenty pounds as the ten kine, and for default thereof judgment was given against the de- fendant (b). So where one engaged to make such further as- surance within such a time, by fine or feoffment, as the covenantee should choose, it was held to be incumbent on him to elect which of the assurances he would have(c). The defendant in another case agreed to come over to England, in order to dance ballets at the Italian Opera in the Haymarket, or at such other place as the plaintiff should appoint. The defend- ant never came. No license had been obtained from the Lord Chamberlain for the Opera House, (a) Basset v. Kerne, 1 Leon. (b) Fordley's case, 1 Leon. 68. 69 ; S. C. Mo. 241 . (c) Bassetv. Kerne, 1 Leon. 70. Chap. II.] Of the several Kinds of Covenants. 23 nor had any other place been appointed by the plaintiff; the court therefore decided, that the de- fendant could not perform at the Opera for want of the license, and that he was not liable to an action for not going elsewhere, in consequence of the plain- tiff's neglect to furnish him with notice to dance at any other place (d). In like manner, on a covenant to do a specific act, or an act to be appointed by a third party, if the latter be chosen, the duty of procuring the appoint- ment falls on the covenantor. Accordingly where the defendant, the lessee of a mill, covenanted to leave the mill-stones in as good condition as he found them, or to pay to the plaintiff so much as they should be damnified, the damage to be esti- mated by A. and B. who viewed them when the defendant entered upon the premises, and the plain- tiff assigned for a breach that the defendant had left the mill-stones damnified, and had not made satis- faction to the plaintiff, and the defendant pleaded that A. and B. had not estimated the damage, the court were of opinion, that since the latter part of this disjunctive covenant was for the safety of the defendant, it belonged to him to procure this estimation, or otherwise he should be liable. If the estimation had been to be made by such per- sons as the covenantee should appoint, and he had refused to appoint, that would have excused the defendant, because the performance of the cove- (d) Gallini v. Laborie, 5 Term Rep. 242. 24 Of the several Kinds of Covenants. [Part I. nant was rendered impossible by the act of the covenantee (e). So where one covenanted to deliver to the plaintiff all the tackle of a ship mentioned in an inventory, or in default thereof to pay him before a day named so much as the tackle should be valued at by four men, and the defendant pleaded that before the day the men had not made their valuation, the court held, that as the option was for the advantage of the de- fendant, it was his duty to have procured the valua- tion, and gave judgment against him(/). It may be mentioned, that if a party covenants with another to pay him a sum of money on one of two events which should first happen, the plaintiff, by deferring his suit until the happening of the later event, is not debarred of his right of action; and though entitled to his action on the first contin- gency, yet if he tarry till the second it is but his own delay, of which the defendant shall not take advan- tage (g). The plaintiff therefore need not aver that the first of the events had not happened (/?). And where there was a covenant to pay the plaintiff annually two hens, or in lieu thereof one shilling, and the breach assigned was that he did (e) Studholme v. Mandell, 1 (/) Moore v. Morecombe, Mo. Ld. Raym. 279; S. C. Lutw. 645. 213. Nels.fol. ed. Lamb's case, (g) Loggin v. Orrery, 1 Lord 5 Co. 23, b. ; S. C. Cro. Eli/. Raym. 133. 716. (A) Ibid. Chap. II.] Of the .several Kinds of Covenants. 25 not pay either, it was deemed unnecessary for the plaintiff to allege that he had made his election ; but if the breach assigned had been that he did not pay one of the two things, the plaintiff must have alleged that he had made his choice to have that thing paid (/). When any of the covenants are in the disjunctive, and in the election of the covenantor to do one of two things, performance ought to be specially pleaded ; for otherwise the court cannot know what part hath been performed (k). SECT. II. OF EXPRESS COVENANTS, Covenants, again, are either express or implied; or, as they are sometimes termed, covenants in deed, or, covenants in law. Express covenants are such as are created by the Expt express words of the parties in a deed, declaratory of their intention. As the good of society requires that contracts entered into with the solemnity inci- dent to deeds or covenants should be inviolably ob- (i) Ashworth v. Lord, Say. (k) Oglethorpe v. Hide, I 232. Leon. 311. 26 Of the several Kinds of Covenants. [Part I. served and strictly executed, the law has decreed, that where a man expressly covenants to do an act which he would not otherwise be bound by law to perform, he has, by his own deliberate act, imposed on himself a responsibility, from which in general he cannot be relieved, and is compellable, if he neg- lect such duty, to make compensation in damages to the party injured (/). And where a man submits or covenants to be examined as to matters which will be penal on him, equity even will not interpose in his favor (m). On the same ground it has been determined, that a tenant for life without impeach- ment of waste is liable on his express covenant to repair, notwithstanding it was urged that such a covenant was inconsistent with his estate (»). And although a covenant be entered into under a mistaken impression, yet it shall be equally binding on the covenantor (o). A person may, on this prin- ciple, also, be responsible on his express cove- nant for the performance of some duty by an- other Qo) ; as the observance of an award by such third person (q) ; or for the payment by a stranger of a certain sum of money on the conveyance (I) Barker v.Thorold, 1 Saund. 174 ; S. C. Comb. 172. Anon. 47 ; S. C. 2 Keb. 145. 12 Mod. 399. (to) East India Company v. (p) Hughes v. Humphreys, 6 Atkins, 1 Stra. 168 ; S. C. Com. Barn. & Cres. 680, 6. Branch 347. South Sea Company v. v. Ewington, 2 Dougl. ,518. Bumstead, Mos. 74. 77. Cuming v. Hill, 3 Barn. & Aid. (n) Chesterfield v. Bolton, 2 59. Com. 626. () ; for wherever the intent of the parties can be collected out of a deed for the not doing or doing a thing, that is sufficient to make an action of covenant maintainable (if). This rule is very simple and comprehensive, as will be seen from the following examples. Bywords of Thus covenant will lie on the words of a bond, for they prove an agreement (z) ; or on the words " I oblige," " agree" (a) ; or, " I bind myself to pay so much at such a clay, and so much at another day"(&); or, " I am content to give to A. 10/. at Michaelmas and 10/. at Lady-day" (c). So, where a party acknowledged himself to be accountable for all such moneys as should be charged by him on A., to be paid to B., covenant, it was held, could be brought, as it might on any words in a deed pur- porting to be an agreement for payment of money (d). An action will also lie on words of agreement, al- though the parties may disclaim an intention to co- (w) Andrews v. Ellison, 6 J. 182. n. B. Moore, 199. Lant v. Norris, (*) Hill v. Carr, 1 Ch. Ca. 1 Burr. 290. 294. (a;) Harwood v. Hilliard, 2 (a) Williamson v. Codrington, Mod. 268 ; S. C. 3 Keb. 848. 1 Ves. 516. Otway v. Holdips, Stevinson's ease, 1 Leon. 324. 2 Mod. 266. Saltoun v. Houstoun, 1 Bing. (6) Norrice's case, Hardr. 178. 433; S. C. 8 J. B. Mo. 546. (c) 3 Leon. 119. pi. 199. (y) Hill v. Carr, 1 Ch. Ca. (d) Brice v. Carre, 1 Lev. 47 ; 294. Duke of St. Albans v. S. C. 1 Keb. 155. Ellis, 16 East, 352. 12 East, Chap. II.] Of the several Kinds of Covenants. 20 venant ; as where they " resolved and agreed, and did by way of declaration and not of covenant spon- taneously and fully agree." Lord Eldon called this clause nonsensical (e). But words merely importing an order or direction that other persons should pay a sum of money cannot be the foundation of an action of covenant. In the case of a policy of insurance which declared, " Now we the trustees and directors of the said society whose names are hereunto subscribed, do order, direct, and appoint the directors for the time being of the said society to raise and pay, by and out of the moneys, securities, and effects of the said contri- butionship," &c. a sum of money in case of loss by fire, the court conceived that nothing was to be found in the instrument which constituted a covenant, the deed being upon the face of it only an order for the payment of money (/"). Where, however, a person was admitted a member of a fire association, upon the terms and conditions prescribed by their deed of settlement, and paid one year's insurance ; and by a policy under seal, three of the directors declared that he should be entitled to a remuneration out of the society's funds, in case of loss by fire happening to any property therein specified, not exceeding the sums set against each article respectively ; and it was further stipulated, that neither of the directors who signed the policy, (e) Ellison v. Bignold, 2 Jac. (/) Alchornev. Saville, 6 J. B. & Walk. 510. Moore, 202. note (n). 30 Of the several Kinds- of Covenants. [Part 1 . nor the plaintiff, nor the holder of it, should as members of the society be subject or liable to any demand for loss, except under the articles esta- blishing the society, and as was provided by the same : In reasonable construction, said the court, this instrument may be considered as a covenant to entitle the insurer, in case of loss by fire, to receive a remuneration out of the funds of the society ; par- ticularly as the policy was signed by the defendants, who agreed or covenanted to be themselves person- ally liable, as far as the funds of the society would extend (g) : and this case was expressly distinguished from Alchorne v. Saville, which, they said, was merely an order on the directors for the time being to pay, and they did not sign the policy. So, if it be agreed between two persons that one shall pay the other a sum of money for his lands on a particular day ; these words will amount to a covenant on the part of the latter to convey the lands (A). And words used in the future tense, unconnected with preceding words of agreement, will of them- selves be sufficient to constitute an express covenant ; and it makes no difference whether the first or third person be used : for example, a lease was made to W. C. wherein were these words: "And the said William, his executors, &c. shall sufficiently repair (g) Andrews v. Ellison, 6 J. B. 319; S.C. 1 Sid. 423; T. Raym. Moore, 199. 183; 1 Lev. 274; 2 Keb. 533. (h) Pordage v. Cole, 1 Saund. 542. Chap. II.] Of the several Kinds of Covenants. 31 the said mill and premises, and leave them suffi- ciently repaired :" On these words it was determined covenant could be maintained (i). And the like was resolved on the words in the first person, " I have in my custody a writing obligatory, &c. and I will be ready at all times when I shall be required to re-de- liver the same writing obligatory to the said B." (A?). Words in the form of an exception may also By words of amount to a covenant. A lessee agreed that he ^P^" or would from time to time and at all times during the term, plough, sow, manure, and cultivate the pre- mises demised, (except the rabbit-warren and sheep- walk,) in a regular and due course of husbandry, according to the custom of the country ; and it was determined, that the exception was as much a cove- nant or agreement as the rest of the stipulation in which it was placed ; and that the words, " except the rabbit-warren and sheep-walk," in this place, were tantamount to the words, "but not the rabbit- warren and sheep-walk," which would have im- ported more directly perhaps a negative of ploughing the rabbit-warren and sheep-walk (/). So where the words were used restrictively, as that the lessee should have wood, non succidendo arbores, these were held to be a covenant by the lessee that he would not cut down the trees (m). So were the words that A. (i) Brett v. Cumberland, Cro. 2 Mod. 89. as Walker v. Walker. Jac. 399. 521 ; S.C. 3 Bulstr. (7) Duke of St. Albans v. Ellis, 163 ; 1 Rol. Rep. 359 ; 2 Ibid. 16 East, 352. 63; Poph. 136; Godb. 276. (m) Mar. 9- pi. 22. Anon. (k) Rol. Ab. 519. pi. 5. Bac Dy. 19, b. pi. (115). Ab. Covenant, (A) p. 528. cited 32 Of tlit several Kinds of Covenants. [Part I. should take fire-bote without cutting more than was necessary (w). Where the demise is of land, except a close, cove- nant will not. lie for the disturbance of that close (o) ; but where the exception is of a thing dehors to the lessor, as a way, common, estovers, or other profit apprendre, that is equivalent to an engagement by the lessee for the lessor's enjoyment : the ex- ception amounts to a reservation of newly created way, &c. and therefore covenant lies (jp). But if a party reserves a liberty to take certain property upon the premises assigned, this differs from a co- venant. Thus in an action on an agreement be- tween the plaintiff and defendant that the former should convey all her interest in a certain lease to the latter, except that the assignor should have every year 200 furze or wood faggots, the de- fendant had judgment, because the deed did not amount to a covenant that he should deliver so many faggots ; but it was a reserved liberty for her to take them on the land (g). So on a covenant by a lessee to repair the demised premises, principal timber only excepted, the lessor was not obliged to deliver the timber ; for the exception amounted to no more than (n) Stevinson's case, 1 Leon. S. C. 12 Mod. 24; Carth. 232 ; 324. 1 Show. 388, nom. Bush v. Ca- (o) Lady Russel v. Gulwell, lis. Co. Lit. 47, a. Cro. Eliz. 657 ; S. C. Mo. 553 ; (?) Tuckerman v. Tuckerman, cited 1 Rol. 102; Hob. 276 ; Lutw. 101. Nels. fol. ed. Ste- 11 Co. 50, b. vens v. Carrington, 1 Dougl. 27. (p) Bush v.Cole, ISalk. 196. Chap. II.] Of the several Kinds of Covenants. 33 that he was to provide it ready for the defendant to carry (r). If an office be granted absque impetitione, dene- gatione, restrictione, §c. covenant will lie on the words against the grantor (s). Words of recital also may, when joined and con- By words sidered with the rest of the instrument, be the foun- ° dation of an action of covenant. The case was : A. B. by deed-poll, reciting that he was possessed of certain lands for years by good and lawful conveyance, assigned the same to J. S., with divers covenants, articles, and agreements in the said deed contained, which' were or ought to be performed on his (A.B.'s) part, and a bond was given by A.B. for performance of the covenants. The court held that the recital was an agreement within the mean- ing of the condition of the bond; for, said Gawdy, J. " every thing contained in the deed is an agreement, and not only that which I am bound to perform : As if I recite by my deed that I am possessed of such an interest in certain land, and assign it over by the same deed, and thereby covenant to perform all agreements in the deed, if I be not possessed of such interest, the covenant is broken:" And it was clearly resolved, that if A. B. had not the interest by a good and lawful conveyance the obligation was (?•) Brailsford v. Parsons, (s) Bishop v. Redman, 1 Leon. Lutw. 95. Nels. fol. ed. See 277. Stone v. Gilliam, 1 Show. 149. D 34 Of the several Kinds of Covenants . [Part I. forfeited (T). So where a termor for ninety-nine years, if three persons named should so long live, recited his interest, and that one life was in being, and assigned his term ; it was adjudged that this recital amounted to a covenant that the life con- tinued (u). So on the demise of a coal mine, reciting that before the sealing of the indenture it was agreed on consideration that the plaintiff should have the third part of the coals dug up ; it was ob- jected that this was no covenant to pay the third part, but a recital of an agreement to have it ; yet Hale, C. J. held, that were it but a recital that be- fore the indenture the parties had agreed, it would amount to a covenant; for the indenture itself con- firmed the agreement and intent precedent (v). If a particular recital is contained in a deed, and referred to as the occasion of a covenant, the cove- nant if inconsistent therewith will not be binding ; as if J. S. by agreement, reciting that R. M. de- ceased, the late father of Joseph M., Samuel M., Thomas M., Nathaniel M., and John M., had be- queathed to each of them the said Joseph, &c. (naming all] but Nathaniel,) 50/., covenants to pay the aforesaid Joseph, &c. (including Nathaniel,) the (0 Severn v. Clerke, 1 Leon, by Lord Eldon, 2 Bos. & Pul. 25. 122. Holies v. Carr, 3 Swanst. (u) Best v. Brett, 1 Rol. Ab. 638. 643; S. C. 2 Mod. 86; 518, 9. cited in Holies v. Carr, Rep. temp. Finch, 261; 2 3 Swanst. 649. See also Barton Freem. 3. Johnson v. Procter, y. Fitzgerald, 15 East, 530. Yelv. 175 ; S. C. Cro. Jac. 233 ; (v) Barfoot v. Freswell, 3 Keb. 1 Bulstr. 2; 2 Brownl. 212. cited 465. Chap. II.] Of the several Kinds of Covenants. aforesaid several legacies, &c. nothing being men- tioned in the recital to have been bequeathed to Nathaniel, the defendant's covenant, although with Nathaniel as well as the rest, shall not oblige him to pay Nathaniel any thing ; for the covenant was to pay the legacies or sums aforesaid (w). The word whereas, when it renders the deed sense- less or repugnant, may be struck out as impertinent, and shall not vitiate a deed in other respects sensible. An agreement ran thus: " Memorandum, on the 14th day of February, 1687. Imprimis, 'Tis covenanted by T.H. and John Smith: Whereas T.H. hath covenanted by virtue of these presents, concluded and articled all his lands to J. S. and his heirs. Item, for the sum of 315/., the one half to be paid the 2nd of February, &c. Item, the said J. S. then to enter; the other half to be paid the 2nd of February fol- lowing/' An objection was raised that the word whereas in the beginning of the articles made the whole to be no more than a recital. But it was answered that it was an impertinent word, and would not make the whole a recital; because the very next words were, T. H. by virtue of these pre- sents hath covenanted, &c. It was also decided, that the preter tense should be taken for the pre- sent, ut res magis valeat ; and that upon the whole frame of the sentence, it was plain the parties in- tended that the defendant should have the lands, (w) George v. Butcher, 2 Vent, ton, 2 Ves. 310. Cole v. Gibson, 140. See also Ramsden v. Hyl- 1 V e s. 507. D 2 36 Of the several Kinds of Covenants. [Part I. because he was to pay the value and enter upon an appointed day («r). An express covenant may also be created by words which, at the first view, might appear to operate rather as conditions, qualifications, or de- feasances of covenants. By words of With regard to words of proviso. An office had proviso. . been conveyed by the plaintiff to the defendant, provided that out of the first profits he should pay the plaintiff 500/. ; it was held, that as this proviso was in the nature of a covenant, and not by way of con- dition or defeasance, covenant would lie (j/). So where a lease was made to B. for life, with a proviso that if the lessee should die within the term of forty years, the executors of the lessee should have it for so many of the years as should amount to the number of forty, to be computed from the date of the lease, this proviso was held only to amount to a covenant (c). If a lessee for years covenants to repair, provided always and it is agreed that the lessor shall find great timber, &c. ; this creates a covenant on the part of the lessor to find great timber, by the word agreed; and it will not be a qualification of the (x) Hilton v. Smith, Lutw. 150. 842. 860. 897. Nels. fol. ed. (z) Parker v. Gravenor, 2 Dy. (y) Clapham v. Moyle, 3 Salk. 150, a; S. C. And. 19. pi. 38 ; 108 ; S. C. 1 Lev. 155 ; 1 Keb. Benl. 72. pi. 115 ; 1 Co. 155, a. Chap. II.] Of the severed Kinds of Covenants. 37 lessee's covenant (a). An action, however, will not lie where there is a proviso only, and no express covenant; as if A., in consideration of 400/. lent him by B., grants land to B. for 99 years, if G. should so long live, provided if A. should pay 60/. per an- num quarterly during G.'s life, or should within two years after his death pay B. the 400/., then the in- denture should be void; this was deemed to be a mere proviso (/>). And so in the former case (c), had the word agreed been omitted, the proviso would not have operated as a covenant on the lessor's part, but only as a qualification of the covenant of the lessee. Where A. leased to B. for years, on condition that r„ wor( j s of he should acquit the lessor of ordinary and extraor- condition, dinary charges, and should keep and leave the houses at the end of the term in as good plight as he found them ; the lessee was liable to an action for omitting to leave the houses in good plight (d) ; for here an agreement was implied. But wherever the words do not amount to an agreement, or are merely conditional to defeat the estate ; as if a lease be granted, provided and on condition that the lessee collect and pay the rents of the other houses of the lessor, covenant is not maintainable (e). (a) Holder v. Taylor, Brownl. Toomes v. Chandler, 2 Lev. 116 ; 23 ; S. C. Hob. 12. but a differ- S. C. 3 Keb. 454. 460. ent point. Pordage v. Cole, T. (c) Holder v. Taylor, ubi sup. Raym. 183; S. C. 1 Lev. 274. (d) 40 Ed. 3. 5, b. Bac. Ab. Samways v. Eldsly, 2 Mod. 77. Covenant, (A). Rol. Ab. 518. (b) Suffeild v. Barkervil,2 Mod. (e) Geery v. Reason, Cro. Car. 36. Briscoe v. King, Cro. Jac. 128. See Simpson v. Titterell, 281 ; S. C. Yelv. 206 ; 1 Bulst. Cro. Ei 14 242. 2 Co. 71, b. 156; 1 Brownl. 113. Tonnes or of Yorkshire. 38 Of the several Kinds of Covenants. [Part I. Under Re- By an act passed in the 6th year of queen Anne's reign, c. 35., entituled, " An Act for the public regis- tering of all deeds, conveyances, wills, and other incumbrances, that shall be made of, or that may East Riding affect any honors, manors, &c. within the East riding of the county of York, or the town and county of the town of Kingston upon Hull," &c. it is enacted (/), " that in all deeds of bargain and sale hereafter inrolled in pursuance of this act, whereby any estate of inheritance in fee simple is limited to the bargainee and his heirs, the words grant, bargain, and sell, shall amount to, and be construed and adjudged in all courts of judicature to be, express covenants to the bargainee, his heirs and assigns, from the bargainor for himself, his heirs, executors, and administrators, that the bargainor notwithstanding any act done by him, was at the time of the execution of such deed seised of the hereditaments and premises thereby granted, bar- gained, and sold, of an indefeasible estate in fee- simple, free from all incumbrances (rents and services due to the lord of the fee only excepted); and for quiet enjoyment thereof against the bargainor, his heirs and assigns, and all claiming under him ; and also for further assurance thereof to be made by the bargainor, his heirs and assigns, and all claiming under him ; unless the same shall be restrained and limited by express particular words contained in such deed ; and that the bargainee, his heirs, exe- cutors, administrators, and assigns respectively, shall and may in any action to be brought, assign a breach (./') 6 Anne, c. 35. s. 30. Chap. II. ] Of the several Kinds of Covenants. 39 or breaches thereupon, as they might do in case such covenants were expressly inserted in such bargain and sale." An exactly similar clause is contained in the sta- North tute, 8 Geo. 2. c. 6. (#), relating to lands in the North Rldln S- Riding of the same county. By sec. 34 of the statute of Anne, the provision WestRiding. is extended to lands lying within the West Riding of the county of York, (the mortgage or purchase whereof shall exceed the sum of 50/.,) as effectually as if the same had been inserted and contained in the registry acts (h) of that division. It may here be noticed, that the common clause Words of of indemnity in marriage settlements, " that the ^a^J?" 1 trustees and their heirs shall not be chargeable settlements. with or accountable for any money arising in the execution of the said trusts in the said indenture, but what the person or persons so to be accountable shall actually receive," is not a clause of charge, but rather of discharge and indemnity: it is to take away that responsibility which each would be under for the acts of the other, were it not for this clause. The sense of it is, that the trustees and their heirs shall not be accountable for more than they receive ; they are accountable for what they actually receive, but not as under a covenant (t). (g) 8 Geo. 2. c.6. s. 35. (i) Bartlettv. Hodgson, ITerm (k) 2 & 3 Anne, c. 4. 5 Anne, Rep. 42. c. 18. 40 Of the several Kinds of Covenants. [Parti. SECT. 111. OF IMPLIED COVENANTS. Implied. Implied covenants depend for their existence on the intendment and construction of law. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts have a similar operation, and are called covenants in law ; and are as effectually binding on the parties, as if expressed in the most unequivocal terms (A). If land be granted for a term of years by the word demise or grant, without any express covenant for quiet enjoyment, here the lessee, or his assignee, if ousted by rightful title, may sustain an action on the implied covenant that the lessor war- ranted he had a good title at the time of executing the deed (/). The distinction between express and implied cove- nants is not merely technical, but in many instances its consequences are of considerable moment. In construction, express covenants are regarded with greater strictness than those which are implied ; and without any consideration a man may enter into an express covenant (n). From an early case (o) it appears, that a grantee (k) Bac. Ab. Covenant, (B). (n) Shubrick v. Salmond, 3 (I) Deering v. Farrington, Burr. 1639. May v. Trye, Freem. Freera. 367 ; S. C. 1 Mod. 113; 447 ; S. C. 3 Keb. 764. 780. 3 Keb. 304. Hacket v. Glover, (o) Harper v. Bird, or Burgh, 10Mod.l42. 5Co.l7. Carth.98. T. Jo. 102; S. C. 2 Lev. 206, Chap. II.] Of the several Kinds of Covenants. 41 of a reversion could at common law, independently of the statute 32 Hen. 8. c. 34., maintain an action of covenant against a lessee for rent in arrear on the reddendum, which was construed to be an implied covenant (p), although the grantor of the reversion after his assignment over, had released all covenants to the lessee. This release, if executed before any breach, or before suit commenced, would clearly have operated as a bar to an action on an express covenant (y) ; but the court held that they would intend the action to be grounded on the reddendum, which the lessor could not release after his assign- ment. The heir, as he cannot be named, cannot be bound by a covenant in law ; but it is otherwise with an executor, who, although not named, is liable on the words yielding and paying (r). No liability, however, will attach upon an executor after the determination of the estate in respect of which the covenant arose : for example ; Tenant for life, with remainder over in fee, granted and demised for fifteen years abso- lutely, and died before the expiration of the term, the remainder-man entered on the lessee, and the court held, that the lessee could not sue the exe- cutor of the tenant for life upon the covenant in law, which, being annexed to the estate, determined by S. P. Vyvyan v. Arthur, 1 Barn, an express covenant. & Cres. 410 ; S. C. 2 Dow. & (q) Middlemore v. Goodale, %. 670. Cro. Car. 503 ; S. C. W. Jo. 406. (p) See post, p. 50. as to the (r) Newton v. Osborn, Sty. reddendum, or the words yielding 387. and patjing, being an implied or 42 Of the several Kinds of Covenants. [Parti. his death ; though it was agreed that it would have been otherwise on an express covenant for quiet en- joyment (.?). Repeated attempts have been made in argu- ment (t), with reference to the liability of assignees, to draw a distinction between express and implied covenants, and to shew that an action on the latter must be confined to the actual parties to the deed ; and cases have been cited in support of this opinion. The position, however, is scarcely tenable ; both principle and the weight of authority seem decidedly opposed to it. On principle it appears but reasonable that an assignee should be charged as well on an implied as on an express covenant. Let us take the case of a covenant for payment of rent arising out of the words yielding and paying, on a demise by indenture, exe- cuted by both parties, in which is contained no ex- press covenant to that effect. Here the lessee is chargeable with the payment of rent, in respect of his enjoyment of the property, or in privity of estate only (u). The covenant is implied by law for the lessor's benefit, and for the purpose of affording him a remedy, on non-payment of rent, by a form of (s)Swanv. Scarles&Stranson, Show. 388; S. C. Carth. 232; Mo. 74; S. C. And. 12. Anon. 1 Salk. 196; 12 Mod. 24. but Dy. 257, a. Benl. 150. Bragg this point is not noticed. Porter v. Wiseman, 1 Brownl. & Gold. v. Swetnam, Sty. 406. 22. Netherton v. Jessop, Holt, («) Bacheloure v. Gage, W. Jo. 412. 223. Anon. 1 Sid. 447. Auriol (0 Bush v. Calis, or Coles, 1 v. Mills, 4 Term Rep. 98. Chap. II.] Of the several Kinds of Covenants. 43 action, to which, in the absence of an express cove- nant, he would not otherwise be entitled. This be- nefit, it must be supposed, was intended by law to be commensurate with the interest derived under the lease ; but it could not be commensurate, if the act of the party, such as an assignment, could defeat the implied covenant. We therefore find that the lessee was liable on such a covenant, at the suit of the assignee of the reversion, even without the aid of the 32 H. 8. c. 34. (v). Now if the benefit ran with the land in the hands of reversioners, on the same prin- ciple, the charge must run with the land in the hands of assignees ; or in other words, the rights and liabilities must be reciprocal. It must be remem- bered, too, that a covenant to pay rent runs with the land at common law, and binds an assignee, though not named (w). The object of the law in raising an implied covenant was to supply the omission of an express one ; but this could only be accomplished by imparting to the former the principal qualities of the latter, and in consequence of charging the as- signee with the payment of rent. Being responsible in respect of privity of estate only, the lessee's as- signment of his interest deprives the lessor of his action of covenant against such lessee (&) ; because all privity of estate then ceases, as between them ; (v) Harper v. Burgh, or Bird, (a?) Anon. 1 Sid. 447. Bache- 2 Lev. 206 ; S. C. T. Jo. 102. loure v. Gage, W. Jo. 223. where Vyvyan v. Arthur, 1 Barn. & it is said, after assignment and Cres. 410 ; S. C. 2 Dow, & Ry. acceptance no action lies on the 670. implied covenant. See Staines v. (w) Stevenson v. Lambard, 2 Morris, 1 Ves. & B. 11. East, 575. 44 Of the several Kinds of Covenants. [Part I. but this privity must exist somewhere ; the relative situations of landlord and tenant must still be pre- served : the assignee, therefore, taking the same in- terest, under the same grant, stands in all respects, (except as to collateral covenants,) in the place of the lessee ; and by his enjoyment under the assignment is liable to all the legal consequences flowing out of the original grant, (one of which legal consequences undoubtedly is the payment of rent on the covenant implied by law,) in the same manner as the lessee would have been had no assignment been executed. Thus much for the principle on which the question is founded. The balance of authority, also, seems to prepon- derate in favor of the assignee's liability. The cases stated to be adverse to it do not warrant that conclusion, and are in general merely speculative cases proposed by the advocates engaged in argument ; while those in its support make a near approach to positive de- cisions on the subject. Thus, in Brett v. Cumber- land (y), it was held, that "of a covenant in land which is only created by the law, or of a rent which is created by reason of the contract, none is longer chargeable with them, than the privity of the estate continue with them." And of this opinion was Rolle C. J., in a case (z) of covenant against the executrix of an assignee of a lessee for years for non-payment of rent, on the words yielding and paying. He con- sidered that these words, being the agreement of (y) Brett v. Cumberland, Cro. (z) Porter v. Sweetnam, Sty. Jac. 523. 406. 431. Chap. II.] Of the several Kinds of Covenants. 45 both parties to the indenture, constituted an express covenant ; but held, that there was no difference in this instance between a covenant in law and an ex- press covenant, because it was touching a thing which arose from the land, and so the assignee was bound by it. No case is to be found in which the precise point has received a judicial determination; but the above afford reasonable grounds for concluding that an as- signee is liable on implied covenants. Implied covenants do not extend to a thing not in esse at the time of the demise. Therefore if A., in consideration that B. will build a mill upon the land, and a watercourse through the land, demises the land to B. by the words dedi et concessi, and after- wards stops the watercourse, B. for the above reason cannot maintain covenant against A. (a). It must not be forgotten, that where a general im- plied covenant, arising for instance on the words " demise and lease," and an express limited cove- nant, as " that the lessee shall quietly enjoy against the acts of the lessor, or any claiming or to claim by, from, or under him," are comprised in the same in- strument, the former will be qualified and restrained by the latter, the rule of law being, expressum facit taciturn cessare (b). But where one makes a lease for (a) Huddy v. Fisher, 1 Leon. 329. Nokes's case, 4 Co. 80, b ; 278. pi. 377. S.C.Cro.EHz.674. Gainsfordv. (b) Merrill v. Frame, 4 Taunt. Griffith, 1 Saund. 58; S. C. 1 4Q Of the several Kinds of Covenants. [Part 1. life by the words dedi et concessi; or makes a lease for life by other words, reserving rent ; (in which case the law creates a warranty against all men dur- ing the life of the lessor) ; in these cases an ex- press warranty in the deed shall not take away nor qualify the implied warranty ; but the lessee may make use of which of them he will, if he be ousted or evicted by one who hath an elder title (c). It was settled so long ago as the time of Siderfin, that where a bond is given generally for the perform- ance of covenants in a lease, it is extended to protect breaches in implied as well as express covenants ; and if rent be not paid, or there be an eviction, the bond is forfeited for breach of the two implied cove- nants (d). By what Next as to the words by which implied covenants words raised. may ^ e raised. As to the If a lease for years be made by any of the follow- ing words, grant (e), demise (/), dimisi (g), or dimise- mise. Sid. 328; 2 Keb. 76. 201. 213. 100. Igguldenv.May,9Ves.330. Deering v. Farrington, 1 Mod. Style v. Hearing, Cro.Jac. 73. 113 ; S. C. Freem. 367; 3 Keb. (/) Deering v. Farrington, 1 304. Hayes v. Bickerstaffe, Mod. 113; S. C. Freem. 367; Vaugh. 118; S. C. 1 Freem. 3 Keb. 304. Andrew's case, Cro. 194. but not the same point. Eliz. 214. Burnett v. Lynch, 5 (c) Shep. Touch. 165. Barn. & Cres. 609. Iggulden v. (d) Iggulden v. May, 9 Ves. May, ubi sup. Merrill v. Frame, 330. Nokes's case, 4 Co. 80, b; 4 Taunt. 609. S. C Cro. Eliz. 674. (g) Hachetv. Glover, 10 Mod. (e) Spencer's case, 5 Co. 17, a. 142. Nokes's case, 4 Co. 80, b . 18, a. Clarke v. Samson, 1 Vps. Holder y. Taylor, Hob. 12. Chap. II.] Of the several Kinds of Covenants. 47 runt (Ji), the law implies a covenant on the part of the lessor, that the lessee shall hold and enjoy the term against all lawful incumbrances ; and if the lessee, or his assignee, be lawfully evicted by one having title paramount to the lease, covenant may be brought against the lessor. So if at the time of the demise a stranger be seised of the land, the lessor is guilty of a breach of covenant, in taking upon himself to demise that in which he had no interest ; for the word dimisi imports a power of letting, as dedi does of giving : nor will the want of an entry by the lessee, or an ejectment of the stranger, deprive the lessee of his remedy ; for it would be unreasonable to compel him to enter on the land, and so commit a trespass (J). An impression has generally prevailed, that the As to the word grant in any conveyance will create a warranty ; wo 9 rani - and the objections entertained by trustees to execute deeds containing that word are well known : and hence the introduction in assignments by trustees, of the words, " by way of assignment or other as- surance only, and not of covenant or warranty." The opinion, however, is founded in error, and originates in a disregard of the distinction between conveyances of estates of freehold and grants of chattel interests. Where estates of the former description are the subject of conveyance, no doubt whatever exists (/i) Coleman v. Sherwin, 1 Herring, 1 Rol. Ab. 520. Bed- Show. 79 ; S. C. 1 Salk. 137. ford v. Hall, Ow. 104, 5. Lud- (i) Holder v. Taylor, Hob. 12. well v. Newman, 6 Term Rep. Cloake v. Hooper, Freem. 121 ; 458. S. C. 3 Keb. 162.202. Stile v. 48 Of the several Kinds of Covenants. [Part I. that the word grant will not constitute a warranty (k) ; though it is otherwise with the word dedl (I). Trus- tees, therefore, on conveyances of freeholds, may safely dispense with their precautions, and rest as- sured that they impose upon themselves no risk or responsibility by the adoption of this word grant, to which they would not be equally liable even were it excluded from the conveyance (m). It is also observable, that this word, as a word of conveyance, whether the subject be an original grant, or an assignment, of a chattel interest (n), will produce the same effect of raising a covenant by construction of law. If goods, however, be demised by indenture for years, and the lessee be evicted within the term, covenant will not lie on the word dlmisi ; for the law does not create any covenant on such a personal thing (o) ; and therefore in the case # of a lease of a house, together with the goods, it is usual to make a schedule thereof, and affix it to the lease, and to (k) Spencer's case, 5 Co. 18, a. tainly import a covenant in law. Browne, or Browning, v. Hony- And ibid. 26, where Buller, J. wood, Freem. 339.414; S. C. 3 said, the words grant and en- Keb. 188. 549. 617. Pincombe feoff amount to a general war- v. Rudge, Hob. 3 ; S. C. Yelv. rarity in law, and have the same 139; 1 Rol. 25; Noy, 131. nom. force and effect. Pinckard v. Ridge. Hayes v. (I) Spencer's case, 5 Co. 17, a. Bickerstaffe, Vaugh. 126. But Nokes's case, 4 Co. 80, b. 81, a. see Browning v. Wright, 2 Bos. (w)Butl.n.(l). Co.Lit.384,a. and Pul. 21, where Lord Eldon (n) Person v. Jones, 2 Rol. said, the words grant, bargain, 399 ; S. C. Palm. 388. sell, enfeoff, nnd confirm, cer- (o) Bac. Ab. Cov. (B). Chap. II.] Of the several Kinds of Covenants. 49 have a covenant from the lessee to re-deliver them at the end of the term ; for without such covenant the lessor can have no remedy but trover or detinue for them after the lease ended (p). Unaccompanied by the term grant, the words As to the bargain and sell, it is submitted, do not import an in a *J~ implied covenant. It is generally believed, and acted sell. upon in practice, that these words in conveyances are totally innocent. They are the usual language by which trustees and others, who desire to divest themselves of any responsibility in respect of cove- nants, usually assign their interests. It is true that Lord Ellenborough, in one case (q), asked, " Do not the words bargain and sell as much imply that the party has the thing which he professes to bargain and sell, as the word grant ?" ; but this proves no more than that his Lordship conceived a doubt on the subject ; and it clearly shews that the learned judge was unacquainted with any positive decision respecting it ; for had such case occurred to his mind, it is highly improbable that it would not have been cited by him. Nor is any judgment, perhaps, to be discovered determining Lord Ellenborough's question in the affirmative. It would seem that on words of assignment, the As to the law will, in some particular cases, imply a covenant. and < s r "*"? w It was so resolved, where a man assignavit et trans- fer. (p) Bac. Ab. Cov. (B). (9) Barton v. Fitzgerald, 15 East, 528. E 50 Of the .several Kinds of Covtntidts. [Parti. posuit all the money that should be allowed by an order of a foreign state to come to him, in lieu of his share of a ship ; though Twisden, J. seemed to doubt (r). When all the circumstances of this case are considered, it cannot fairly be inferred, that under all circumstances, or even generally, where the word assign is used, a covenant will exist by intendment of law. The subject of the assurance, it must be kept in mind, was a chose in action ; and the object of the decision evidently was, to give to the deed the opera- tion of a covenant to do a future act, rather than to admit of its being annulled, on the ground that the contract matter of it was not the subject of a legal assignment. On the contrary, no case has decided that the words assign and transfer shall have any such legal import. The word assign certainly does not imply any covenant or contract on the part of the assignee, but is a mere description of the interest conveyed (s). As to the Some difference of opinion has been entertained, inaandpay- whether the words yielding and paying in a demise, in 9- constitute an express or an implied covenant. There are cases on each side. From some of them it is difficult to collect to which class a covenant on these words was intended to belong. Thus in Hollis v. Carre (t), decided in 1676, Finch, C. said, " There (r) Deering v. Farrington, 1 (t) Hollis v. Carre, 2 Mod. 91; Mod. 113; S. C. Freem. 367 ; S. C. 3 Swanst. 647, 8; and 3Keb. 304. Finch's Ch.Ca. 261, but the point (s) Burnett v. Lynch, 5 Barn, is not noticed in the last book. & Cres. 609. Chap. II.] Of the several Kinds of Covenants. 5 are many cases where words will make a covenant because of the agreement, when the general words of covenant are wanting, such as yielding and pay- ing.'''' It appears from the whole of the case, that the Chancellor thought that the covenant was express. In Barker and Keete, (1678), it is merely said, that yielding and paying makes a covenant (u) ; and Nor- ris v. Elsworth, (1678), is equally uncertain (id). So all to be found on this subject in Giles v. Hooper, (1690), where there was a lease for years, rendering 80/. per annum rent, is, that render makes a co- venant, but whether express or implied does not ap- pear (x). We now come to the cases in which it has been determined, that by these words an express covenant is created. Rolle, C. J. was of opinion, in Newton v. Osborn, (1653), that the words yielding and paying constituted an express covenant ; for it was the agreement of both parties, viz. of the lessor and lessee (j/). And he continued of this opinion in Porter v. Swetnam, (1654), and used nearly the same language as be- fore {%). So in Hellier v. Casbard, (1665), which was an action of debt on a lease, it was agreed that (u) Barker v. Keete, 1 Freem. (x) Giles v. Hooper, Carth.l 35. 250 ; S. C. 2 Mod. 249, but the (y) Newton v. Osborn, Sty. point not noticed. 387. (w)Norrisv. Elsworth, Freem. (z) Porter v. Swetnam, Sty. 463. 406.431. E 2 52 Of the several Kinds of Covenants. [Parti. these words made an express covenant, and not a covenant in law only(«). On the other hand, the cases following maintain that an implied covenant arises from the words in question. Besides the determination to this effect in the anonymous case in Siderfin (b), it was clearly held in Harper v. Burgh (c), where the attention of the court was called to the very point, that the red- dendum was a covenant in law only. Lord Kenyon, too, who delivered the judgment of the court in Webb v. Russell (d), said, " In point of law I can- not conceive how this covenant made with Stokes can be said to run with the land ; for Stokes is stated in the declaration to have no interest what- ever in the land ; and yet both the implied cove- nant arising from the yielding and paying, and also the express covenant, are entered into with Stokes." And that these words constitute a covenant in law only, is further proved by what fell from Mr. Justice Holroyd in a late case (e). " The covenant (said he) to be implied from the reddendum is in the nature of a covenant to render a rent, and conse- quently it is a covenant that runs with the land." (a) Hellier v. Casbard, 1 Sid. 2 Lev. 206; S. C. T.Jon. 102. 240.266; S. C. 1 Lev. 127, (d) Webb v. Russell, 3 Term nom. Helierv. Casebert. SeeRol. Rep. 402. Ab. Covenant, 519. pi. 10. (e) Vyvyanv. Arthur, 1 Barn. (6) Anon. 1 Sid. 447. pi. 9. & Cres. 416; S. C. 2 Dow. & anno 1670. Ry. 670. (c) Harper v. Burgh, or Bird, C h ap . 1 1 . ] Of th e several Kinds of Covenants . 5 3 On this side, also, is the important additional au- thority of Lord Eldon, who, in lggulden v. May (/), stated, that there was a covenant for quiet enjoy- ment under the words granted and demised ; a cove- nant for payment of rent under the words yielding and paying ;" and at the conclusion of the sentence his Lordship expressly designated them as two im- plied covenants. And in a later case (g), in giving his opinion, the same learned Judge observed, " The effect of the lease in the warranties and obligations, as arising out of the words of the lessor and lessee, yielding and paying, and under the execution of their agreement by the court, is perfectly different; the latter including the covenant for quiet enjoyment; and in many other respects the mutual obligations of both with reference to each other, being by the express covenants very materially varied." Thus there are only two or three cases which give to the words yielding and paying the operation of an express covenant ; while, on the other hand, the more numerous as well as the more recent deci- sions are opposed to that construction. We may now therefore conclude, that an express covenant is not created by these words ; but that the covenant which exists by virtue of them is derived solely from intendment and implication of law. This being settled, the subject must not be quitted without one precautionary observation. The expres- (/) lggulden v. May, 9 Ves. (g) Church v. Brown, 15Ves. 330. 264. 54 Of the several Kinds of Covenants. [Part I. sion that covenant arises from the words yielding and paying is too general, and admits of an important qualification, a neglect of which may be the cause of much confusion and mistake. In practice, leases are sometimes prepared by deeds-poll, the rent being reserved by the above words. Now if the position contended for in a former page (Ji) be correct, viz. that covenant cannot be maintained against any one, (with the exceptions there noticed,) unless he him- self, or some other person acting on his behalf, has executed a deed under seal ; it necessarily follows, that this form of action cannot be supported against a lessee by deed-poll ; and for this obvious reason, be- cause there cannot be an execution of the instrument by him ; nor, as it is contended, will his acceptance of the deed and an interest under it, expose him to the liability. The author has taken great pains in endeavouring to find a positive decision contraven- ing this opinion, but without success. All the cases recently cited on this question, except Hellier v. Casbard, Giles v. Hooper, Harper v. Burgh, and Norris v. Els worth, are expressly mentioned to have arisen on covenants contained in indentures, which it is fair to presume were executed by both parties. Although in Newton v. Osborn it is not stated whe- ther the deed was indented or poll, yet, as Rolle, C.J. said it was the agreement of both parties, it may be inferred that the instrument was of the former de- scription. It is true, that in the cases just excepted no notice is taken of the sort of deed ; but not one mentions the case as having arisen on a deed-poll. (h) Ante, p. 10, et seq. Chap. II.] Of the several Kinds of Covenants . 55 It has however been expressly determined (i), that mutual covenants cannot arise on a deed-poll, it being the deed of one party only. If, therefore, this course of reasoning be admitted to be right, the consequence must be, that on an implied covenant, arising from the words yielding and paying, an action of covenant will not lie against a lessee, his executors, administrators, or assigns, where the instrument by which the term is granted is a deed-poll, or an indenture unexecuted by or on behalf of the lessee. Whether the word reddendum will support an action of covenant on a lease for life is an unsettled point (k). These covenants are sometimes raised by impli- Implied cation of law from the words of the parties actually t ^ s ® ob _ used in an express covenant, when, without such ject of the legal intendment, the express covenant would be cramped in its operation, or the advantage or security meant to be enjoyed under it, in a measure defeated. Thus where the defendant being the proprietor of a certain medicine, assigned the same, and all his right, title, and interest therein, and all profits that should arise therefrom, to the plaintiff; to hold the same to him in like manner as the defendant might have done, if the assignment had not been made ; and covenanted that he had good right to sell ; that it (i) Lock v. Wright, I Stra. Pordage v. Cole, 1 Saund. 319. 571 ; S.C. 8 Mod. 40. See also (k) Harper v. Bird, T. Jo. 102. 56 Of the several Kinds of Covenants. [Parti. should be lawful for the plaintiff from time to time and at all times thereafter, to prepare, compound, or make the said medicine, and to sell the same in the name of the defendant, and to receive the profits arising from the sale thereof for his (the plaintiff's) sole use and benefit ; and covenanted also for further assurance : the whole court were of opi- nion, that as the defendant had sold and assigned the medicine by words competent to convey the whole property in it, and had covenanted that the plaintiff might at all times thereafter prepare and sell the medicine and receive the profits thereof, the law would imply a covenant that he should not himself vend that for his own profit which he had agreed to sell and had sold to another ; and that as he was afterwards concerned with others in making and vending it on his own account, he was manifestly guilty of a breach of covenant; for if he retained the making and vending, and the profits arising from the sale of any part of it, he could not be said to have conveyed all his right, title, and interest in the sub- ject matter (/). Lord Ellenborough afterwards ob- served (ni), that no argument could be drawn from the opinion delivered by the court to authorize the extension of the doctrine to the wrongful act of a stranger; but they considered the breach committed by the defendant as the retention and exercise of a right by him, the original proprietor, over the medi- cine which he had conveyed to the plaintiff. (I) Seddon v. Senate, 13 East, (m) Ibid. p. 79. 63. Chap. II.] Of the several Kinds of Covenants. 57 And where a lessee covenanted that he would, at all times and seasons of burning lime, supply the lessor and his tenants with lime at a settled price, for the improvement of their lands and repair of their houses, it was held that this covenant also implied that he would burn lime at all such seasons ; and that it was not a good defence to plead that there was no lime burned on the premises out of which the lessor could be supplied (n). So where the lessee covenanted that he would at all times during the term fold his flock which he should keep upon the demised premises, upon such parts thereof where the same had been usually folded, under a penalty of three pounds a time for every time the same should be folded off from the demised premises, or on any other part thereof than where the same had been usually folded ; the court considered that by this covenant the te- nant was absolutely bound to keep as well as fold a flock (o). Again, where two persons covenanted together that it should be lawful for one to hold the other's property for a certain time, it was determined, that it was em- phatically an agreement that he should not detain it for a longer time, but should then give it up to the owner. The possession of a ship by the freighter be- yond forty days, the time stipulated for loading and (») Earl of Shrewsbury v. (o) Webbv.Plummer, 2 Barn. Gould, 2 Barn. & Aid. 487. & Aid. 746. 58 Of the several Kinds of Covenants. [Parti. unloading, was therefore decreed to be unlawful, and in contravention of his implied covenant that he would not detain it longer than that time (p). Here may be noticed the difference between a misfeasance, by which a man defeats or prejudices the effect of his own grant ; and a nonfeasance, which is merely passive negligence or omission : although the former entitles the party injured to an action, yet on the latter covenant is not maintainable. If one by deed grants a watercourse, and then stops it, the grantee may have an action of covenant against him. So if a lease is made of a house and estovers, and the lessor destroys all the wood out of which the estovers are to be taken, the lessee may bring an action of covenant against the lessor ; for these are wilful acts of the grantor or lessor ; and it is a misfeasance in him to annul or avoid his own grant, and equivalent to an eviction in other cases of a de- mise. But where there is no misfeasance, but only a nonfeasance, an action does not lie ; as if I grant a way over my land, I shall not be bound to repair it ; but if I voluntarily stop it, or lock the gates (q) t I may be sued for the misfeasance ; yet for the bare nonfeasance in not repairing the way when out of repair no action at all lies. And where one granted and demised to the plaintiff a messuage and piece of land, (except a small piece of land, on which a pump was standing,) together with the use of the pump, it (p) Randall v. Lynch, 12 East, (q) Climsonv. Pool, Latch, 47. 179. Chap. II.] Of the several Kinds of Covenants. 59 was decided (/•), that no action lay against the lessor for not repairing the pump when in decay and ruinous; and that when the use of a thing was granted, every thing was granted by which the grantee might have and enjoy such use ; and there- fore the lessee himself might have repaired the pump. Where, however, the defendant had demised to the plaintiff a messuage, and covenanted that during the term he would permit him to have free ingress, egress, and regress through the gate at the bottom of the yard belonging to the said messuage, and the use of the pump in the said yard jointly with the defendant, whilst the same should remain there, pay- ing half the expenses of keeping it in repair ; the removal of the pump, although without reasonable cause, and in order to injure the lessee, was not such a misfeasance on the lessor's part as to expose him to an action by the lessee ; for the introduction of the words whilst the same should remain there, qualified the general covenant, and reserved to the lessor a power of removing the pump, whatever might be his motive for doing so(*). (r)Pomfretv. Ricroft, 1 Saund. 192. Nels. fol. ed. 321; S. C. 1 Vent. 26. 44; 1 (s) Rhodes v. Bullard, 7 East, Sid. 429; 2 Keb. 505. 543. 569. 116. See Butterfield v. Marshall, Lutw. 60 Of the several Kinds of Covenants. [Part I. SECT. III. OF COVENANTS REAL — 'INHERENT PERSONAL — AND COLLATERAL OR IN GROSS. Covenants, with reference to the nature of the estate on which, and the parties on whom they are binding, may be divided into real and personal. Real. Different definitions have been given of covenants real. It is, of course, a necessary ingredient in the constitution of a covenant real, that it relate to the realty; and it is immaterial whether the interest or quantity of estate to which the covenant refers be a real estate (properly so called), or a chattel interest in realty. Fitzherbert says (t), writs of covenant are of di- vers natures ; for some are merely personal, and some covenants are real, to have a real thing, as lands and tenements ; as a covenant to levy a fine of land is a real covenant. But a writ of covenant which is more personal is, where a man by deed doth covenant to build him a house, &c, or to serve him, or to enfeoff him, &c, and he doth not the same according to the covenant, &c. It is difficult, however, to conceive on what ground the distinction above drawn, between a covenant to levy a fine and a covenant to enfeoff, can be supported. They relate alike to the realty. It seems to be a distinction (0 Fitz. Nat. Brev. 145. A. ; p. 323, 6th Ed. Chap. II.] Of the several Kinds of Covenants. 61 without a difference, and such a one as at this day would not be admitted. Covenants real, observes Mr. Cruise (u), are those which have for their object something annexed to, or inherent in, or connected with land, or other real property. Thus where three coparceners purchased land in fee, and covenanted that the survivors should convey to the heirs of such as should die first ; this was resolved to be a covenant real (v). This definition is more comprehensive, and clearly embraces in its terms a covenant to enfeoff; which is as much connected with land as a covenant to levy a fine, or other covenant, can well be. We have then this definition opposed, at least in its example, to that in F.N. B. It is laid down by Mr. Justice Blackstone (w), that if the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent, but not otherwise : if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant. The difference which exists in the above explana- tions of a covenant real, has seemingly arisen from the circumstance, that Fitzherbert and Mr. Cruise kept in view only the subject matter of the covenant, («) 4 Cm. Dig. 397.3d Ed. (w) 2 Bla. Com. 304. (v) Jenk. 241, case, 24. 62 Of the several Kinds of Covenants. [Parti. and the interest which the covenantee or his heirs might derive under it ; while Mr. Justice Blackstone referred simply to the liability of the covenantor, and to the descriptions of property which would be charged on his death to make compensation in case of a breach. The learned judge did not suppose that land or other real property must necessarily be the subject to constitute a real covenant ; he only looked to the covenant with reference to the estates and persons on which it might, in case of breach, attach in the quality of a lien or charge. Accord- ing to his definition, even the most personal or col- lateral covenant, such as to pay a sum of money in gross (.r), or to build a house on another man's land (3/), would, if the heirs were named, rank as a covenant real. It appears, although such is not the general acceptation of the term covenant real among con- veyancers, that the definition given by the author of the Commentaries is by far the most extensive, and is also most reasonable and accurate. But admitting that all these definitions are correct, and taking them as distinct classes of covenants real, the best definition will be found in Sheppard's Touch- stone (~). He says — a covenant is also either real, i.e. that whereby a man doth bind himself to pass a thing real, as lands or tenements ; as a covenant to levy a fine of land, in which case the land itself is to be recovered ; or when it doth run in the realty so with the land, that he that hath the one hath or (x) Spencer's case, 5 Co. \6, b. (2) Shep. Touch. 161. (y) Ibid. Chap. II.] Of the several Kind* of Covenants. 63 is subject to the other, and so a warranty is called a real covenant. Hence a covenant may be real, having for its object something annexed to, or inherent in, or con- nected with land or other real property ; although it may be purely personal to the covenantor, and his personal representatives, because he has omitted to name his heirs. And secondly, a covenant, though clearly personal, or relating to personalty, as to pay a gross sum of money, may be a covenant real, because the heir, being named, will be liable in respect of assets by descent from his ancestor, the covenantor. When, on a sale, the entire estate in the property is disposed of, whether a fee simple be conveyed, or a term for years assigned, and the vendor covenants for title in the usual manner (a) ; these are real covenants, and bind the covenantor during his life, and after his death, his heir will be liable in respect of his having been expressly named, and deriving assets by descent. And as these covenants are an- nexed to, and run with the land for the benefit of purchasers at common law, it seems, that not only the vendee, but also his assignee, will be entitled in case of eviction to maintain an action, although a stranger to the covenant. Thus two parceners made partition of land, and the one covenanted with the other to acquit her and her heirs of a suit that (a) Comments on the usual post, Part the Third, covenants for title will be found 64 Of the several Kinds of Covenants. [Parti. issued out of the land ; the covenantee aliened ; and it was resolved, that the assignee, although a stranger, should have an action of covenant, because the ac- quittal ran with the land (b). Now if this position be once admitted as to an assignee ; a fortiori the heir of the covenantee may also take advantage of the covenant without being named ; for a person can have assigns only of two sorts, either an assign in fact of the party, or an assign by appointment or designation of law (c) ; and clearly an heir is an assign of the latter description. Moreover it is said (d), that the heir is comprehended within the word assigns with respect to the perform- ance of covenants and conditions ; and a declaration on a covenant running with the land, alleging that the estate came to the defendant by assignment thereof, is supportable by evidence that he was heir (e). No ground, therefore, appears to exist for excluding him from the benefit of covenants, and placing him in a worse situation than an assignee in fact. So where instead of the whole estate being parted with, a partial interest, such as a term for years, is carved out of it, leaving a reversion in the vendor, his covenants for title with the lessee, without nam- ing assigns, are real and run with the land, and (6) 5 Co. 18, a. cited in Spen- (d) Chapman v. Dalton, Plowd. cer's case, and authorities there; 288. Goodall's case, 5 Co. 96. Co. Lit. 384, b. ; Sugd. V. & P. 1 Saund. 1 1 1 . n. (c.) 542. 6th ed. () Sliep. Touch. 161 . 5 Barn. 70 Of the several Kinds of Covenants. [Part I. money (z) ; by the lessee of a public house to ac- count and pay such a sum for every tun of wine sold in the house (a). And where a rent charge was granted to A. and his heirs, to the use of B., the court held that a covenant for payment was collateral, and could not be transferred with the rent, by virtue of the statute of uses, 27 Hen. 8. c. 10., so as to enable B. to maintain an action upon it (b). These cove- nants are also termed covenants in gross. They are not binding on assignees, although executors and administrators in their representative capacity are chargeable in respect of a breach. But the covenant cannot be called collateral where it relates to the thing demised, although the lease be of sheep or other personal goods ; yet the assignee is not bound even in this latter case (c). SECT. IV. OF COVENANTS DEPENDENT CONCURRENT AND MUTUAL OR INDEPENDENT; AND HEREIN OF THE DISTINCTION BETWEEN COVENANTS AND CONDITIONS. Covenants, as they are affected by each other in the same deed, may be divided into three classes. Dependent. First, there are covenants which are conditions, (z) Canhamv. Rust, 8 Taunt. (b) Bascawin v. Cook, 1 Mod. 227 ; S. C. 2 J. B. Mo. 164. 223 ; S. C. 2 Mod. 138. (a) Anon. Godb. 120. pi. 140. (c) 5 Barn. & Aid. 7. 8. Chap. II.] Of the several Kinds of Covenants. 71 and dependent, in which the performance of one de- pends on the prior performance of another ; and, therefore, till the prior condition be performed, the other party is not liable to an action on his cove- nant^). Secondly, there are others which are mutual con- Concurrent. ditions to be performed at the same time ; they are also termed concurrent covenants ; and in these, if one party is ready and offers to perforin his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act(e). The third sort are called mutual or independent ; Mutual or where either party may recover damages from the en \ epen other for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff (/"). It will be found difficult to furnish any one clear and precise rule, by which the distinction between covenants and conditions can be accurately ascer- tained. The earlier cases, offering no defined prin- ciple of construction, serve only as so many uncon- nected examples of the actually existing difference between the two. So refined and subtle are the dis- (d) Kingston v. Preston, 2 (e) Ibid. Dougl. 689 ; semb. S. C. Anon. (/) Ibid - LofR, 194, but badly reported. 72 Of the several Kinds of Covenants. [Part I. tinctions on which they have proceeded, that it is almost impossible to draw from them any reasons, as a guide to discover with certainty whether cove- nants are dependent or not. Some of the deter- minations have incurred the censure of outraging common sense (g) ; others of deciding contrary to the real meaning of the parties, and the true justice of the case (/?). That no particular words are required to create either a covenant or condition is perfectly clear; and it is also immaterial, in point of construction, whether the clause be placed in the instrument prior or posterior to others. There are, indeed, some words on which conditions precedent usually arise, such as, for(j), ita quod (k), sub conditions (/), quod si contingat (in), &c. And in some instances the words shall be construed to be both a covenant and a condition ; as if one leases for years by indenture, provided always, and it is covenanted and agreed, that the lessee shall not alien ; this is a condition by force of the proviso, and a covenant by force of the other words (n). But the courts at the present day, disregarding these quaint technicalities, will notice (g) Per Lord Kenyon, in Good- (k) 2 Ld. Raym. 766. Co. isson v. Nunn, 4 Term Rep. 764, Lit. 203, a. Feltham v. Cud- and see ibid, per Grose, J., 765. worth, 7 Mod. 11. (h) Per Grose, J., in Glaze- (/) Co. Lit. 202, b. brook v. Woodrow, 8 Term Rep. (m) Ibid. 203, b. See also Com. 371. Dig. Condition, (A. 2). (i) Lock v. Wright, 1 Stra. (n) Co. Lit. 203, b. Samways 569 ; S. C. 8 Mod. 40. Peeters v. Eldsly, 2 Mod. 74. Crom- v. Opie, 2 Saund. 350 ; S. C. 1 well's case, 2 Co. 72, a. Simp- Vent. 177. 214, Co. Lit. 204, a. son v. Titterell, Cro. Eliz. 242. Chap. II.] Of the several Kinds of Covenants. 73 such words, so far only as they disclose, and are evi- dence of, the intention of the contracting parties. To collect many of the cases which have thus re- ceived the disapprobation of later judges would prove a task equally laborious and unprofitable, and tend to confuse, without benefiting the reader. It is therefore proposed to submit a few specimens of the discrepances which prevailed in the early ad- judications, in justification merely of the foregoing- observations. Thus it is laid down, that where there is an agree- ment that one shall deliver a cow to the other, and that the other shall give him so much money, the action lies for either side, without performance of his promise (0) ; but if by the agreement A. is to deliver B. a cow, and for it B. is to deliver him a horse, there the delivery of the cow would be a condition precedent, and therefore ought to be performed before A. can bring his action (p). So it is said (q), that if I covenant with J. S. to give him 10/. to serve me for a year; in his action for his money he must, count for his service done, and aver that he hath served me out the year. In another (r) we find the law to be, that if one cove- (0) Nichols v. Raynbred, Hob. 41. 42. Lampleigh v. Brathwait, 88. In assumpsit. Hob. 106. (p) Ibid, cited in Thorpe v. (r) Guy v. Nichols, Comb. 265. Thorpe, 12 Mod. 460. Dy. 76, See also Winstone v. Linn, 1 a. pi. 30. Barn. & Cres. 460 ; S. C. 2 Dow. (q) Cow per v. Andrews, Hob. & Ry. 465. 74 Of the several Kinds of Covenants. [Part I. nants to serve A., and A. covenants to pay him so much for service, these are mutual covenants ; and that if he serves one month, and then runs away, the first month's wages become due. And in the case in Hobart will be found many distinctions respecting the word pro, showing in what cases it will operate as a condition precedent, and where it will not. So where A. covenants with B. to marry his daughter, and B. covenants to convey an estate to A. and the daughter in special tail, it is said that though A. marry another woman, or the daughter another man, still A. may have an action against B. on the covenant ; but if B. had covenanted to con- vey the estate for the cause aforesaid, the marriage would constitute a condition precedent, and no action would lie till it should be solemnized (s). We find again (t), that if a man by indenture leases for years, and therein the lessee covenants and grants with the lessor, that neither he nor his assigns will grant, assign, or sell the land to any but to his wife during her life, &c. upon pain of forfeiture of his lease, this is a condition . Yet in another case (u), where a lessee for years of a manor covenanted that neither he nor his assigns would molest, vex, or turn (s) 15 H. 7. 10. pi. 17. Bro. (u) Pen v. Glover, Mo. 412 ; Covenant,22.cited,l2Mod.460. S. C. Cro. Eliz. 421. See Tho- (0 Whitchcotv.Fox,Cro.Jac. mas v. Ward, Cro. Eliz. 202; 398 ; S. C. nom. Hitchcock v. S. C. 1 Leon. 245. Anon. Dal.8. Fox, 1 Rol. 68. 389 ; 2 Bulstr. pi. 7. Archdeacon v. Jennor, 290. Cro. Eliz. 604. Chap. II.] Of the several Kinds of Covenants . 75 out any tenant from his tenancy, upon pain of for- feiture of his lease, it appeared to the court that this was not a condition. Further, if a lessee for years covenants to repair, provided always, and it is agreed that the lessor shall find great timber, &c. ; this makes a covenant on the part of the lessor to find great timber, by the word agreed ; and it will not be a qualification of the covenant of the lessee (v). But if the lessee covenants to repair, provided always that the lessor shall find great timber, without the word agreed, this proviso shall not make any covenant on the part of the lessor, but it shall be only a qualification of the covenant of the lessee. In 1 Rol. Ab. (w) it appears that there were articles of agreement made by A. on behalf of B. of the one part, and C. of the other part, where it was cove- nanted by A. that B., for the consideration thereafter expressed, should convey certain lands to C, who on his part, for the consideration aforesaid, covenanted to pay B. one hundred and sixty-six pounds ; and it was adjudged, that the assuring the land was not a condition precedent. (i>) Danv. Ab. Covenant, (C), books referred to decides any pi. 2. 3. Vin. Ab. Covenant, (C), thing of the kind. See Browne v. pi. 2. 3. Holder v. Taylor, Brownl. Walker, Lutw. 119. Nels. fol. ed. 23 ; S. C. Hob. 12. pi. 24, cited Bragg v. Nightingall, Sty. 140. by both, and 1 Sid. 423, quoted Slater v. Stone, Cro. Jac. 645. in support of this position ; but it (w) 1 Rol. Ab. 415. pi. 8 ; is remarkable that not one of the S. C. cited 12 Mod. 463. 76 Of the several Kinds of Covenants. [Part I. In Elwick v. Cudworth (V), the plaintiff, in con- sideration of 1100/. to be paid to him by the defen- dant, covenanted to assign to him ten shares in the corporation of linen manufacture on a certain day ; and the defendant covenanted that he would then accept those shares, and at the same time pay the money ; and by the same deed they bound them- selves to each other in the penalty of 2200/. for the performance of the said covenants. It was held that the assignment of the shares ought to precede the payment of the money, because the covenant to pay it was in the nature of a condition to prevent the penalty of 2200/. which the defendant was to forfeit if he did not pay 1100/. on the day, which payment had no manner of reference to the day on which the assignment ought to be made, but it wholly related to the acceptance of the assignment ; so that their meaning must have been, that the plaintiff should assign the shares, and the defendant should accept thereof, and that upon such acceptance he was to pay the money. In Blackwell v. Nash (?/), the plaintiff cove- nanted to transfer to the defendant, on or before the 21st of September, so much stock, and the defen- dant, in consideration of the premises, covenanted to (x) Elwick v. Cudworth, Lutw. locke, or Humlock, v. Blacklow, 2 149. Nels. fol. ed. Saund. 155 ; S. C. 1 Mod. 64 ; (y) Blackwell v. Nash, 1 Stra. 1 Sid. 464 ; 2 Keb. 674. Wil- 534; S. C. 8 Mod. 105. Gib- krason v. Meyer, 8 Mod. 173. bonsv. Prewd,Hardr. 102. Beany Dawson v. Myer, 2 Stra. 712. V. Turner, 1 Lev. 293. Hun- Chap. II.] Of the several Kinds of Covenants. *7 accept and pay for it ; he then averred that he was ready and offered to transfer to the defendant, who refused to accept or pay, &c. ; on demurrer it was objected, that for it made a condition precedent, and that the plaintiff should have shown an actual trans- fer of the stock; to which it was answered, that they were mutual covenants, and that the plaintiff need not show a performance on his part ; and it was held, that in consideration of the premises was in consi- deration of the covenant to transfer, and not of an actual tranferring, for which the defendant had his remedy. And the judgment was afterwards affirmed in the Exchequer Chamber on a writ of error. But in commenting on this case, Lord Kenyon remarked (z), that it seemed from the case in Strange, that the judges were surprised at the old decisions, and in order to get rid of the difficulty, they said that a tender and a refusal would amount to a per- formance : that it was true they went further, and said that in consideration of the premises meant only in consideration of the covenant to transfer, and not in consideration of the actual transferring of the stock ; but to the latter part of that judgment he could not accede. It may here be observed, that where there is a nega- tive covenant on one side, in consideration of which there is an affirmative covenant on the other, the non- performance of the negative covenant is no answer to (z) 4 Term Rep. 764. 78 Of the several Kinds of Covenants. [Parti. an action for the non-performance of the affirmative covenant. As if A. covenants not to do a certain thing, and B., in consideration of the performance thereof covenants to give him 100/.; this covenant of A., though it be expressed to be the consideration of B.'s covenant, is not a condition precedent, because a negative covenant cannot be said to be performed, until it becomes impossible to break it (a). These examples shall suffice. Any one disposed to a further investigation of the subject may advantage- ously consult the authorities quoted below (b). The inclination of the courts in the old cases was clearly to construe covenants of this sort to be inde- pendent, sometimes perhaps contrary to the mean- ing of the parties. But the liberality of construction adopted in more recent times has, in a great mea- sure, removed the difficulties occasioned by the nice and obscure distinctions taken in the above cases. The later authorities convey more just sentiments, and Kingston v. Preston (c), although not the first case where those sentiments began to be enter- (a) Humlock v. Blacklow, 1 12 Mod. 400; S.C.Holt, 177. Mod. 64; S. C. 2 Saund. 155; Browne v. Walker, Lutw. 119. 1 Sid. 464; 2 Keb. 674. Nels. fol. ed. Bragg v. Nightin- (b) Bettisworth v. Campion, gall, Sty. 140. Slater v. Stone, Yelv. 133. Brocas'scase, 3 Leon. Cro. Jac. 645. 219. Everard v. Hopkins, 1 Rol. (c) Kingston v. Preston, cited 155, per Lord Coke. Spanish in Jones v. Barkley,2Dougl. 689 ; Ambassador v. GifFord, 1 Rol. Anon. Lofft, 194. but badly re- 366. 371. Ware v. Chappell, ported, semb. S. C. Sty. 186. Sheer v. Shaleeroft, Chap. II.] Of the several Kinds of Covenants. 79 tained id), was the first strong authority in which they prevailed in opposition to the former (e) ; the principle laid down by Lord Mansfield, and now fully established, being, that the dependence or independence of covenants is to be collected from the evident sense and meaning of the parties ; and that, however transposed they may be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance. Nothing can exhibit the doctrine which ought to prevail in these instances in a stronger point of view than the circumstances of that case ; for there, if the plaintiff had prevailed, the most flagrant injustice would have been committed. The facts were : the defendant, being possessed of a very large stock in trade, covenanted with the plaintiff to assign the same to him and another person at the end of a twelvemonth, at a fair valuation, when deeds of part- nership were to be executed between the two last persons ; and the plaintiff covenanted that he would, at and before the sealing and delivery of the deeds, procure good and sufficient security to be given to the defendant, and to be approved of by him, for the payment of a certain stipulated sum by monthly in- stalments ; and the attempt was by the plaintiff to get possession of the whole stock in trade of the defendant, to a great amount, without giving him any security at all, to his inevitable ruin. But the (d) Thomas v. Cadwallader, (e) Per Grose, J. in Glazebrook Willes, 496. v. Woodrow, 8 Term Rep. 371 . 80 Of the several Kinds of Covenants. [Part I. absurdity and injustice of the thing struck the court so forcibly, that they said it could never have been the intention of the parties, that the defendant should surrender his whole fortune into the plain- tiff's hands, without the previous security which he had insisted upon, and that he should solely rely upon his remedy by action for the breach of the plaintiff's covenant : they accordingly gave judgment for the defendant. To discover the intention of the parties concerned is therefore the chief object ; and to that end a con- sideration of the following rules, extracted from the leading cases on the subject, will be of material service. They are four in number, and as here arranged, the two first will be found to relate to dependent, and the third and fourth to independent covenants. 1. Where 1st. Where the mutual covenants go to the whole covemtntscro °^ ^ e cons ideration on both sides, they are mutual to the whole conditions, the one precedent to the other (/). of the consi- deration on both sides. This rule was also propounded by Lord Mansfield, and formed the ground on which the case of the Duke of St. Albans v. Shore (g) was decided. An action of debt was brought for a penalty on cer- tain articles of agreement, dated 30th March 1787, whereby the defendant was to purchase of the plain- tiff a certain farm at the price of 2594/., which was (/) Boone v. Eyre, 1 H.Blac. parties. 273. note; 2 W. Blac. 1312; (g) Duke of St. Albans v. another action between the same Shore, 1 Hen. Blac. 270. Chap. II.] Of the several Kinds of Covenants. 81 to be paid at Lady-day then next, in the following manner : the plaintiff was to accept of a conveyance and surrender of certain copyhold and leasehold premises of the defendant, at the price of 1820/., (to be deducted from the before-mentioned sum of 2594/.,) the defendant to convey those premises at the expense of the plaintiff, and the plaintiff to make a good title to the defendant at his (the defendant's) expense ; and the plaintiff, on executing the con- veyances, was to receive the rest of the purchase- money. All timber trees, elms, and willow trees, which then were upon any of the above estates, to be fairly valued by two appraisers, and the prices or value thereof to be paid by the respective purchasers of the estates at the time before mentioned ; the rents of the respective estates to be received by the owners till the 24th of March then next. It was also provided, that in case the plaintiff should not be enabled to make a good title to the said estate before the said 24th of March, the agreement should be void. After the contract the duke cut down part of the trees. And it was argued on the part of the plaintiff, that the agree- ment respecting the trees was not a condition prece- dent, and therefore a breach of that condition could not be pleaded in bar to the action. It was however determined, that the covenant of the plaintiff went to the whole of the consideration of that which was to be done by the defendant ; for the duke clearly co- venanted to convey an estate to the defendant, in which all the timber growing on the estate was ne- cessarily included. The timber was not disjoined from the estate by the separate valuation of it. It was expressly agreed, that all trees which then were G 82 Of the several Kinds of Covenants. [Part I. upon any of the estates should be valued ; and it was not to be permitted to any party contracting to convey land, which included the timber, by his own act to change the nature of it, between the time of entering into the contract and that of performing it. There might be cases where the timber growing on an estate would be the chief inducement to a pur- chase of that estate. But it was not considered necessary to inquire whether it were the chief in- ducement to a purchase or not ; for if it might be in any sort a consideration to the party purchasing to have the timber, the party selling ought not to be permitted to alter the estate by cutting down any of it. So where the defendant covenanted to pay the plaintiff such a sum, the plaintiff making to him a sufficient estate in such lands before the feast of St. Thomas next ensuing the date of the deed, it was held that the words he making a sufficient estate were a condition precedent to the payment of the money (h). In like manner, where a covenant was entered into by a tenant, at all times during the term to repair the premises, and, at the end or sooner determination of the term, to yield them up in good and tenantable repair, he the said (landlord) finding and allowing timber sufficient for such reparations during the term, to be cut and carried by the said (lessee); no doubt whatever was entertained by the court that this was a condition precedent ; for the finding of the timber (h) Large v. Cheshire, 1 Vent, ris v. Knight, Sugd. V. & P. 219, 147; S. C. 2 Keb. 801. Mor- n. 6th edit. Chap. II.] Of the several Kinds of Covenants. 83 was a thing in its nature necessary to be done first, and therefore must be considered as a qualification of the lessee's covenant (i). 2ndly. Where a day certain is appointed for pay- 2. Where the n , . n . . , , . r act, inconsi- ment of the money ; if the said day is to incur at- deration of ter the time in which the consideration ought to be wmch * he -iii money is to performed, for which the money is made payable; bepaid,pre- the performance of the consideration is a condition cedes the 1 day ot pay- precedent to the payment of the money, and ought ment. to be averred in an action brought for the money (A:). Therefore where a vessel was let to freight, and the defendant covenanted to pay the plaintiff 670/. sterling per month, for every calendar month the ship should be employed by him, the freighter; and by the terms of the charter-party the freight, pilot- age, and port-charges, were all of them expressly covenanted to be paid by the defendant on the arrival and discharge of the ship at her destined port in Great Britain ; and the vessel was wrongfully seized, and brought back to, and detained in London, so that she did not complete the stipulated voyage ; the plaintiff was not allowed to recover freight for the time she had been actually engaged in the defend- ant's service ; for these payments were made to de- pend on the event of the ship's arrival and discharge at her destined port in Great Britain, as a condition precedent to the plaintiff's right to demand the (t) Thomas v. Cadwallader, Holt, 28.96; 12 Mod. 445; 1 Willes, 496. Salk. 171 ; 1 Mod. Ent. 111. (k) Thorpe v. Thorpe, 1 Lord Lutw. 75. Nels. fol. ed. Raym. 665 ; S. C. Ibid. 235 ; G 2 84 Of the several Kinds of Covenants. [Part I. same (/). And it was not enough to show that the owner did all in his power towards earning the freight, &c., by the tender of his ship to complete the voyage, and his offer to obey the freighter's in- structions ; because, though the owner had actually done, as far as lay in his power, all that he offered to do, and which the freighter discharged him from doing, it would only have amounted at most to an endeavour on his part to complete the voyage, and earn the freight, &c. ; but such completion was still liable to be defeated by the act of God, as the acci- dents of the voyage ; and the performance of the condition which was to entitle the owner to freight, &c, would still have been contingent, although such his offers had been accepted by the freighter. There- fore this is not like the case, where a party, tender- ing to do that which he has undertaken, and which he has the immediate power of doing at the time, in order to entitle himself to a correspondent duty from another, is, by a refusal of the other to accept such tender, absolved from the necessity of averring per- formance of it in an action for a breach in not per- forming the subsequent or concurrent duty. So where freight was covenanted to be paid within ten days next after the arrival of the ship at her first destined port abroad, and the vessel was lost on her (I) Smith v. Wilson, 8 East, v. East India Company, 1 Dougl. 437; S.C. 6 Mau. &Selw. 78, in 272. See also Heard v. Wadham, another stage. Cook v. Jennings, 1 East, 619. Storer v. Gordon, 7 Term Rep. 381. Thompson v. 3 Mau. & Sel. 308. Fothergill Brown, 7 Taunt. 656 ; S. C. U. v. Walton, 8 Taunt. 576 ; S. C. B. Mo. 358, overruling Hotham J. B. Mo. 630. Chap. II.] Of the several Kinds of Covenants. 85 outward voyage, the owner was not entitled to re- cover, as such arrival created a condition precedent to the owner's right to payment of any freight (m). And within the same rule falls the earlier case of Lock v.Wright (w); where the plaintiff declared, that the defendant, by his writing indented (0), agreed with the plaintiff, that he, the defendant, would ac- cept of the plaintiff 500/., fourth subscription, as soon as the receipts should be delivered out by the company, and would pay for the same 950/. on the 5th of November next after the date of the writing ; and then averred that the defendant did not pay the money at the day. From the first part of the reso- lution of the court, it would appear that this case would find a more appropriate place among the class of covenants requiring concurrent performance ; for in pronouncing judgment, Pratt, C. J. said, That the intent of the parties appeared to be, that one should have the money and the other the stock ; and not that either should perform his part of the agree- ment, and lay himself at the mercy of the other for the equivalent. But the circumstance of the trans- action being by deed-poll seemed to have influenced the decision in this respect ; for, continued the Chief Justice, this is not a covenant entered into by both parties, upon which each will have his mutual re- (m) Gibbon v. Mendez, 2 Barn. (0) In 8 Mod. the case is stated &• Aid. 17. Byrne v. Pattinson, to have arisen on a deed-poll, and Abbott on Shipping, 335. 5th ed. the reasoning of the court, even See Dy. 76, a. pi. 29. 30. in Strange, will lead to the same (w) Lock v. Wright, 1 Stra. conclusion. 569 ; S. C. 8 Mod. 40. 86 Of the several Kinds of Covenants. [Parti. medy ; but it is the deed-poll of the defendant only ; and, therefore, though upon the delivery or tender of the stock the plaintiff will have his remedy for the money, yet the defendant, on the other side, upon payment of the money, will have no remedy to com- pel the delivery of the stock ; and having no such remedy, he shall not be obliged to pay the money till the consideration for which it is payable is per- formed. It was therefore held to be a condition precedent, because otherwise the intention of the defendant to have the stock for his money could never take effect ; and the declaration was in conse- quence deemed bad, for want of an averment of a de- livery or tender of the stock. The analogous cases cited beneath, to which it is unnecessary to advert more particularly, will also afford the reader further information on this subject^). As a species of dependent covenants, that class of cases in which the acts stipulated for require a con- temporaneous performance, or as it has been called, a performance uno flatu (g), may be attended to in this division. It has been remarked, that in these, if one party is ready, and offers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, (p) Porter v. Shephard, 6 Term 6 Term Rep. 714. Anvert v. En- Rep. 665. Worsley v. Wood, nover, 2 Barnard. 308. Ibid. 710. Routledge v. Burrell, {q) Walker v. Harris, Anstr. 1 H. Blac. 254. Oldman v. Be- 245. wicke, 2 H. Blac. 577. n. (a), cited Chap. II]. Of the several Kinds of Covenants . 87 and may maintain an action for the default of the other ; though it is not certain that either is obliged to do the first act. This rule, according to the opinion of Mr. Justice Le Blanc (r), applies to every case of a sale of pro- perty, where one engages to convey on a certain day, and the other to pay at the same time ; and this, whether the one be stated in terms to be in consi- deration of the other or not. In neither case will the court compel one party to perform his part, until the other has done or has offered to do his own. Thus where (s) the plaintiff agreed, that he would, on or before the 2nd of September then next, well and sufficiently grant, surrender, or otherwise con- vey to the defendant all that copyhold tenement, &c. : in consideration whereof the defendant covenanted to pay to the plaintiff the sum of 210/. on or before the 2nd of September next ensuing; and on failure of complying with the before-mentioned agreement the defendant was to pay to the plaintiff the sum of 21/. ; and if the plaintiff did not deliver the estate accord- ing to the before-mentioned agreement, then he was to pay the defendant the sum of 21/. These, it was held, were reciprocal acts to be performed by the parties at the same time, the one dependent on the other ; when the one party conveyed his estate he was to receive the purchase-money ; and when the other parted with his money he was to have the estate : for supposing the purchase-money of an (r) InGlazebiookv.Woodrow, (s) Goodissonv. Nunn,4Term 8 Term Rep. 374. Rep. 761. 88 Of the several Kinds of Covenants. [Part I. estate were 40,000/., it would be absurd to say that a purchaser might enfore a conveyance without pay- ment, and compel the seller to have recourse to him, who might perhaps be an insolvent person. Thus, also, where the defendant, in consideration of 252/. paid to him, agreed to transfer 6000/. South- Sea stock to the plaintiff, any time before the 9th of January 1720, within three days after the same should be demanded by note in writing delivered to the defendant or left for him at his house in Angel Court, upon payment of the further sum of 9000/. The payment of the money was held not to be a con- dition precedent, but a concurrent act ; and if the defendant had been there, the plaintiff must have laid down his money, though not so as to part with it till transfer (t). So where the agreement was, that the defendant should pay so much money six months after the bargain, the plaintiff transferring stock ; and the plaintiff at the same time gave a note to the defendant to transfer the stock, the defendant paying &c. H61t, C. J. said, If either party would sue upon this agreement, the plaintiff for not paying, or the defendant for not transferring, the one must (t) Merrit v. Rane, 1 Stra. over to him, &c. : in Viner, they 458. Turner v. Goodwin, Fort, are, upon his assigning. Wy- 145; S. C. Gilb. K. B. 40; 10 vill v. Stapleton, or Shelburne v. Mod. 153. 189. 122 ; 2 Vin. Stapleton, 1 Stra. 615; S. C. 8 Ab. 183. pi. 9. The reports in Mod. 68. 292. 314. 381. fol. ed.; Fortescue,Gilbert,andlOModern, 3Bro.P.C. 89;S.C.vol.i.p.215, agree in making the words of the Toml. ed. Elwick v. Cudworth, covenant to be, he assigning Lutw. 149. Nels. fol. ed. Chap. II.] Of the several Kinds of Covenants. 89 aver and prove a transfer or a tender, and the other a payment or a tender (u). The same doctrine prevailed (v) where the plaintiff, being in possession of a school, covenanted with the defendant to convey to him the good will of it, and the building itself, on or before the 1st of August 1797, and in the mean time he consented to put him in possession of the premises on some prior day ; and in consideration thereof the defendant cove- nanted to pay him a stipulated price, on or before the same 1st of August, with interest from the 1st of January next preceding the said 1st of August. The plaintiff, without having executed the conveyance, or made a tender of it, commenced this action to re- cover the consideration-money. And it was holden, that the very statement of such a claim was sufficient to refute it : that if these were not dependent cove- nants, it was difficult to conceive what covenants were so ; the true justice of the case and the evident meaning of the parties being, that the execution of the conveyance and the payment of the money should be concurrent acts ; and even the payment of the interest was to be deferred till the 1st of August, though it was to run from the January pre- ceding : that the very substance of the consideration to entitle the plaintiff to receive the money was the making of the conveyance required ; and as it was admitted that he had not done it, there was an end («) Callonel v. Briggs, 1 Salk. 8 Term Rep. 366. Heard v. 112; S. C. Holt, 663; Collins Wadham, 1 East, 619. See also v. Gibbs, 2 Burr. 899. Morton v. Lamb, 7 Term Rep. (v) Glazebrook v. Woodrow, 125. 90 J-' Of the several Kinds of Covenants. [Parti. of the question. The case of Campbell v. Jones (w), it will be seen, was very different from the present ; for there the instruction to be given was not to be, and could not in the nature of the thing be performed at the same time with the payment of the money by the defendant, for which a certain time was limited ; whereas no time was limited for giving the instruc- tion. But here the parties stipulated for the convey- ance and the payment of the money at the same time. 3. Where the 3rdly. Where mutual covenants go to a part only r^te mtoa °^ tne cons ideration on both sides, and where a breach part only of may be paid for in damages, the defendant has a re- ationonboth me( ty on hi s covenant, and shall not plead it as a sides. condition precedent (V). Therefore in a case of covenant on a deed (3/), whereby the plaintiff conveyed to the defendant the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of 500/., and an annuity of 160/. for his life ; and covenanted that he had a good title to the plantation, was lawfully possessed of the ne- groes, and that the defendant should quietly enjoy; and the defendant covenanted, that, the plaintiff well and truly performing all and every thing therein contained on his part to be performed, he the defen- dant would pay the annuity. The breach assigned (w) Campbell v. Jones, 6 Term another action between the same Rep. 570, noticed more at length parties. Fothergill v. Walton, 8 in the next and following pages. Taunt. 576 ; S. C. 2 J. B. Mo. (.r) Boone v. Eyre, 1 Hen. 630. Blac. 273, note; 2 W.Blac. 1312, (y) Boone v. Eyre, supra. Chap. II.] Of the several Kinds of Covenants. 91 was the nonpayment of the annuity. Plea, That the plaintiff was not at the time of making the deed le- gally possessed of the negroes on the plantation, and so had not good title to convey ; to which there was a general demurrer. And Lord Mansfield, after ad- vancing the above general principle, said, If this plea were to be allowed, any one negro not being the pro- perty of the plaintiff would bar the action. And Mr. Justice Ashhurst added {£), There is a difference between executed and executory covenants ; here the covenants are executed in part, and the defen- dant ought not to keep the estate because the plain- tiff has not a title to a few negroes. In this case it will be observed, that the substantial part of the agreement being the conveyance of the property in respect of which the annuity was to be paid, the court held it to be no answer to an action for the annuity to say that the plaintiff had not a good title to some of the negroes which were upon the planta- tions, because all the material part of the covenant had been performed, and the defendant had a remedy upon the covenant for any special damage occasioned by the non- performance of the rest. The same general rule was recognised and adopted in another case (a), where it had been agreed between the plaintiff and defendant, that, in con- sideration of the sum of 500/. to be paid to the plaintiff by the defendant in manner thereinafter mentioned, he, the plaintiff, would teach and instruct (z) See 6 Term Rep. 573. (a) Campbell v. Jones, 6 Term Rep. 570. 92 Of the several Kinds of Covenants. [Part Ft the defendant in the bleaching and preparing of all materials, according to the specification of a patent obtained by the plaintiff, and would also permit and suffer the defendant, during the continuance of the patent, to bleach, &c. the materials for making paper according to the specification, &c. In pursuance of the agreement, and in consideration of 250/. to the plaintiff paid by the defendant, and of the further sum of 250/. covenanted to be paid to the plaintiff by the defendant in manner thereinafter mentioned, and in consideration of the covenants and agreements of the defendant thereinafter contained, the plaintiff covenanted, to the best of his skill, and with all pos- sible expedition, to teach and instruct the defendant in the manner and method of bleaching linen and other materials used in making paper, according to the specification of a patent obtained by the plaintiff, and according to the method which he then used, or any improved method which he should or might thereafter use in bleaching, &c. And the defendant, in consideration of the plaintiff's covenants, cove- nanted that he would, on or before the 25th of Fe- bruary 1794, or sooner in case the plaintiff should before that time have sufficiently taught and in- structed him in bleaching and preparing the mate- rials for making paper, &c, pay the plaintiff the further sum of 250/. The nonpayment of this further sum was the breach assigned. To this there was a special demurrer, and in support thereof it was said, that the plaintiff's teaching the defendant his me- thod of bleaching the materials used in making paper was a condition precedent to the plaintiff's right to Chap. II.] Of the several Kinds of Covenants. 93 demand payment of the last sum of 250/. On the other hand it was insisted, that they were mutual and independent covenants. In this latter opinion the court concurred ; and one of the grounds on which the plaintiff was deemed entitled to judgment was, that the teaching of the defendant was not the whole of the consideration of the covenant to pay. The agreement of the parties was, that in consideration of one entire sum of 500/. the plaintiff should teach and instruct the defendant in the art of bleaching mate- rials for making paper, and permit him during the period of his patent to bleach such materials accord- ing to his specification ; and though this sum was divided into two sums of 250/. each, and was to be paid at different times, no part was denominated to be the consideration for using the patent, nor any part as the consideration for teaching, but one inte- gral sum was adapted to the whole. And as the plaintiff's agreement had been executed in part, by transferring to the defendant a right to exercise his patent, it was held, that he ought not to keep that right without paying the remainder of the considera- tion, because he might have sustained some damage by the plaintiff's not having instructed him. The authority of these cases, and the soundness of the principle on which they were determined, have been again acknowledged, and acted upon a short time since (b). T. C, in consideration of the covenants in the deed contained, assigned to H. R. C. all that branch or portion of the trade of him T. C. carried on (b) Carpenter v. Cresswell, 4 Bing. 409; S. C. 1 Mo. & P. 66. 94 Of the several Kinds of Covenants. [Part I. at Billingsgate, consisting of purchases and assign- ments from Scotland, and also his interest in certain salmon fisheries there, and covenanted not to inter- fere or act in the branch of the business so assigned. H. R. C, in consideration of the assignment and co- venants entered into by T. C, covenanted on his part to pay T. C. an annuity of 250/. by quarterly pay- ments, and to abstain from interfering in the branch of trade still carried on byT. C. Here the court were unanimous that the engagement by T. C. not to in- terfere in the Scotch fish business formed only a part of the consideration for the defendant's covenant; another, and most material part being the assignment of the Scotch fishery; and this distinguished the pre- sent case from the Duke of St. Alban's v. Shore, be- cause there the vendor of the estate, having cut down the timber after he had agreed to sell it with the timber standing, had so changed the state of the premises, that the vendee could never have that which he had contracted to buy. The grounds on which the courts hold covenants, where they go to a part of the consideration only, to be independent, and not pleadable as conditions pre- cedent, are twofold. First, Because the defendant for a breach on the plaintiff's part, may resort to his action, and recover proportionate remuneration in da- mages; and for the plain reason, that the damages sustained by the breach of one such covenant may not be at all adequate to the damage sustained by the breach of the other, the performance of the agree- ment on the defendant's part is not dispensed with Chap. II.] Of the several Kinds of Covenants. 95 on account of his not having received the whole con- sideration (c). And secondly, Since the plaintiff's agreement is executed in part, the defendant ought not to keep the right without paying the remainder of the consideration, although he may have sustained some damage (//). And on this subject, C. J. Dallas has ob- served (e), that the doctrine in Boone v. Eyre, as to the covenant going to the whole or a part of the consideration on both sides, has all the weight which some of the greatest names in Westminster Hall can give it. It was laid down by Lord Mansfield ; it was next recognized by Lord Loughborough, and formed the ground of the determination of the court of C. P. in the case of the Duke of St. Alban's v. Shore ; it was then sanctioned by Lord Kenyon and the rest of the court of K. B. in the case of Campbell v. Jones, and was afterwards eulogized by Lord Ellenborough in delivering the judgment of the court in Havelock v. Geddes. The doctrine, indeed, has never been alluded to but in terms of the highest commenda- tion. The fourth rule is, if a day be appointed for 4. Where the payment of money, and the day comes before the da y t f P, ay ~ thing for which the money is to be paid can be done ; money ar- rives before the act for which the (c) Campbell v. Jones, 6 Term v. Cadwallacler, Willes, 499. m0 nev is to Rep. 573. Duke of St. Albans (d) Ibid. be paid can v. Shore, 1 H. Blac. 279. Boone (e) 8 Taunt. 583; 2 J. B. Mo. be perform- v. Eyre, Ibid. 273. n. Thomas 639. 96 Of the several Kinds of Covenants. [Part 1. there, though the agreement be to pay the money for the doing of the thing, yet an action may be brought for the money before the thing done ; be cause the agreement is positive that the money shall be paid at the appointed day (/) ; and it is presumed that the party intended to rely on his remedy, and not to make the performance a condition precedent. The same rule had before been propounded by Chief Justice Hale (g): Tis true, said he, if there be a time limited for payment, which time may fall out before the work or thing be done, there the doing it is not a precedent condition. In laying down the rules in Thorpe v. Thorpe, Lord Holt cites the year book 48 Ed. 3. 2,3. and Ughtred's case, 7 Co. 10. But the case in the year book is inaccurately stated by Lord Coke in Ughtred's case to be, " that Sir Ralph Tolcelser covenanted with Sir Richard Pool to serve him with three esquires of arms in the war with France, and Sir Richard covenanted therefore to pay him forty-two marks; and that each party had equal remedy, one for the service, and the other for the money." But it appears in the year book that the covenant was, that half the money was to be paid in England be- fore they went to France : the principle therefore of that case agrees with the doctrine of Holt in Thorpe v. Thorpe, as is observed by him in 12 Mod. 461. (/)Thorpe v.Thorpe, sup. p.83. Keb. 811.837; 2 J^v. 23; 3 (g) Peters v. Opie, 1 Vent. 177. Keb. 45. Cowper v. Andrews, 214; S. C. 2 Saund. 350; 2 Hob. 41. 42. Chap. 11. J Of the several Kinds of Covenants. 97 One of the grounds on which the case of Camp- bell v.Jones was adjudged has already been men- tioned (Ji) ; the other was the rule now under con- sideration. The plaintiff, it will be recollected, covenanted, with all possible expedition, not by any fixed time, to instruct the defendant in bleaching linen, &c. ; and in consideration of the plaintiff's covenants, the defendant covenanted that he would on or before the 25th of February, or sootier in case the plaintiff should before that time have in- structed him, pay him the further sum of 250/. And on the authority of Thorpe v. Thorpe the court gave judgment in favor of the plaintiff, saying, that had it been the intention of the parties that the de- fendant should covenant to pay the money as soon as the plaintiff should have instructed him, the natural and obvious way of expressing such intent would have been for the defendant to covenant to pay as soon as he should be taught ; but if the design of the parties were that the plaintiff should at all events be paid on the 25th of February, and sooner in case the defendant should be sooner instructed, the expression used was a natural expression, and the words in case the said plaintiff should before that time have instructed the said defendant, would be con- fined to the word sooner; and therefore, that the intent of the parties appeared to be, that the pay- ment might be accelerated, but should not in any event be delayed. To the same effect is a case, in which the plaintiff agreed to take the defendant into partnership, and (h) Ante, p. 93. if y 8 Of the several Kinds of Covenants. [Part 1 . also to assign over to him a moiety of the interest in the house, to commence from and after a day named, on the terms and conditions that the defendant should pay to the plaintiff, on or before the day specified, the sum of 300/., as a premium or fee to be admitted into the said partnership. It was con- tended, that the lease and copartnership being to run immediately from and after the day on which the payment was to be made, the conveyance must be on or before that time ; but the court were of a contrary opinion, and conceived that the words from and after excluded that day ; and if so, the covenant of the defendant was precedent to the other, and was broken before the other was to be executed (J). The principle also of the case of Pordage v. Cole (k) agrees with the doctrine of Lord Holt in Thorpe v. Thorpe. There was an agreement by the defendant to give a certain sum to the plaintiff for all his lands and house, &c, to be paid at a fixed period, and only 5s. of the purchase-money were advanced at the time of making the agreement ; an action on the agreement was holden to lie for the residue, without showing that he had either made or tendered a conveyance of the lands ; for part of the money was actually paid at the time of the contract, and the residue was made payable on an appointed day, which might happen before the lands were or could be conveyed. (i) Walker v. Harris, 1 Anstr. 319; S. C. 1 Sid. 423 ; 1 Lev. 145. 274 ; T. Ray. 183 ; 2 Keb. 533. (k) Pordage v. Cole, 1 Saund. .542. Chap. 11.] Of the -several Kinds of Covenants. 99 So likewise, where (/) the plaintiffs covenanted that they would build a house for the defendant, and that it should be finished by a certain day ; in con- sideration whereof the defendant covenanted to pay 3800/. in the following manner ; that is to say, the sum of 1266/. 13s. Ad. as soon as the second floor should be laid ; the further sum of 1266/. 13s. Ad. as soon as the fourth floor should be laid ; and the re- maining 1266/. 13s. Ad. as soon as the whole build- ing should be covered in, &c. : and Mr. Justice Buller, in delivering his opinion, said, that the only question in this case was, whether the covenants were dependent, and whether the completing the building was a condition precedent. That it was a rule long- established in the construction of covenants, that if any money was to be paid before the thing was done, the covenants were mutual and independent ; and that, as by the terms of this contract two several sums were to be paid before the thing to be done was done, the plaintiffs were clearly entitled to their action for the money without averring performance, and the defendant to his remedy on the covenants, if the buildings were not completed at the appointed time. It will not be out of order in this place to allude to those cases in which the participle active has given rise to discussion. With few exceptions they have (/) Terry v. Duntze, 2 H. Blac. v. Owen, 5 Term Rep. 409. Rus- 389. cited in Heard v. Wadham, sen v. Coleby, 7 Mod. 236" ; S. C. 1 East, 629, 630. Cock v. Cur- Ridg. 154. toys, K. B. M. 2 Geo. 4. Bach ii 2 00 Of the several Kinds of Covenants. [Parti been resolved to belong to the class of mutual and independent covenants. u- 1/ 3: U*^!* J ?(?& A lessor, in one case, covenanted with his lessee, c'V^ that he paying the rent and performing the covenants on his part to be performed, should quietly enjoy; and the breach assigned was a disturbance by the lessor, who pleaded, that till such time the plaintiff did quietly enjoy the thing demised without disturbance, but then he cut down wood, which was contrary to his covenant, and then, and not before, he, the lessor, entered. The arguments for the plaintiff were, that this covenant was not conditional, for the words paying and performing signified no more than that he should enjoy, &c. under the rents and covenants, and it was a clause usually inserted in the covenant for quiet enjoyment : that the word paying might in some cases amount to a condition, but that was where without such construction the party could have no remedy ; but that here were express cove- nants in the lease, and a direct reservation of the rent, to which the party concerned might have re- course when he had occasion ; and judgment was given that the covenant was not conditional (m) ; though Atkins, J., doubted. So where a lessee covenanted to repair the de- mised premises, 5000 slates being found and allowed (m) Hays v. Bickerstaffe, 2 bington, 1 Sid. 280; S.C. 2 Keb Mod. 34 ; S. C. 1 Freem. 194 ; 9. 23. Anon. 2 Show. 202 Vaugh. 118. Warren v. Asters, Walker v. Wakeman, 1 Vent. 294 alias Arthur, T. Jo. 205; S.C. S. C. Freem. 414; 2 Lev. 150 Anon. 2 Mod. 317. Allen v. Bab- 3 Keb. 544. 547.586.595. 619 Chap. II.] Of the several Kinds of Covenants. 101 and delivered on the said premises by the lessor, his heirs and assigns, for and towards the repairing thereof; it was said for the plaintiff, that the word being implied that the plaintiff had provided at the time of the indenture 5000 slates, otherwise the ex- pression would have been being to be found; and that if the words would not admit of this construction, x yet that finding the slates could not be considered as a condition precedent, but as a mutual covenant. But the court were all of opinion that the word being did not necessarily imply that the plaintiff had pro- vided the slates ; if he had, the words having been would have been more proper; but that being was a middle word, which might admit of both significa- tions. And they held that it ought rather to be considered as a covenant than a condition prece- dent (ji). To the same effect is Dodd v. Innis (o) in Lofft, but like most of the cases contained in that volume, wretchedly reported, and rendered more obscure by the inaccuracies of the press. The case appears to have arisen on a covenant by a lessee with his lessor to leave sufficient compost on the soil of the landlord, at the end or sooner determination of the term; the lessee having the yard, barn, and room to lodge in and dress diet. The defendant pleaded that he did not covenant, but that there was a condition, if the lessor gave room for corn, then the lessee (p) should have compost. Lord Mansfield, however, observed, (n) Mucklestone v. Thomas, (p) This clearly should be lei* Willes, 146. ''** sor. (o) Dodd v. Innis, Loft'i, 56. 02 Of the several Kinds of Covenants . [Part I. that the parties had no difficulty ; they were plain sensible men, and accordingly they put the issue on the fact. " You did not give me room to bestow my straw," &c. said the tenant. " I did," says the lessor. Can there be any thing clearer, continued his lord- ship, than that the covenant could not be to reside in the breast of the landlord to make election during any part of the term ? Had it been so, the tenant bestows his corn and straw, houses his cattle, &c. and then comes to {q) the landlord and says, " I don't want you to furnish compost, and that being the condition on which you were to lodge your corn, and have the other benefits expressed, take your corn, cattle, and straw, and carry them where you think good." Where the tenant covenants to repair, if the lessor finds sufficient timber, the proviso re- strains the covenant (/■) : but in this case there is not the least foundation for such construction. This was followed by Boone v. Eyre (s), so fre- quently referred to, in which the plaintiff declared on a deed of sale made to the defendant of a planta- tion with the negroes, &c. thereto belonging, in con- sideration of 500/. and an annuity, and the defendant covenanted with the plaintiff that, he the said John Boone, well, truly, and faithfully doing, fulfilling, and performing all and singular the covenants, clauses, recitals, and agreements in the said indenture con- tained, he, the defendant, would pay the annuity. The (9) The sense requires the (s) Boone v. Eyre, 2 W. Blac. omission of this word to. 1312 ; S. C. 1 H. Black. 273. n. (r) See Willes, 496. and ante, but not the same point, p. 82, 3. Chap. II.] Of the several Kinds of Covenants. 103 defendant's counsel urged that this was not a case of mutual covenants, but the performance of the plain- tiff's covenants was made a condition precedent to the performance of those by the defendant. But De Grey, C.J. said, Where the particle doing, per- forming, &c. is prefixed to a covenant by another person, it is clearly a mutual covenant and not a condition precedent. It appears, however, that instances may be found somewhat at variance with the preceding proposi- tion ; for in one case(^), where A. covenanted to pay B. so much money, B. making him a good estate in such lands, it was held, that the making the estate was a condition precedent, and therefore to be aver- red. The same construction was given to a case in which a tenant covenanted to repair, he the said land- lord, his heirs and assigns, finding, allowing, and as- signing timber sufficient for such reparations during the said term, to be cut and carried by the said tenant, his executors, administrators, and assigns. The opi- nion of the court was, that the finding of the timber was a thing in its nature necessary to be done first, and therefore must be considered as a qualification of the lessee's covenant; for a man could not repair until the timber was assigned to him for such re- pairs (ti) : and they said that the word provided, which in two cases (v) was holden to make a condi- (t) Large v. Cheshire, 1 Vent. (u) Thomas v. Cadwallader, 147 ; S. C. 2 Keb. 801. cited by Willes, 496. Holt, C. . I. in Thorpe v.Thorpe, (v) IRol.Ab. 518. 2 Danv. 12 Mod. 461. 229. See ante, p. 75. note (»•). 104 Of the several Kinds of Covenants. [Part I. tion, was not so strong an expression as the words finding and allowing in the present. By reference to the authorities cited in this chapter, the reader will perceive that the author has not con- fined himself to cases decided solely on actions of covenant; but other forms of action, such as assump- sit, case, and debt, have lent their aid in illustrating the rules there laid down. The extension of the same general principles to the latter as well as the former, and the consequent analogy between the cases, will sufficiently warrant their introduction. The further examples of cases relating to independent covenants and mutual promises mentioned in the note(w) the student will do well to consult. To gentlemen engaged in preparing the pleadings in actions, the distinctions between covenants de- pendent and independent is of considerable moment; as upon their construction will rest the necessity of averring performance in the declaration. All the cases are uniform in deciding, First, That where the plaintiff's covenant consti- tutes a condition precedent, to enable him to main- tain an action against the defendant for the nonper- formance of his part of the agreement, the condition on the part of the plaintiff must be previously com- plied with, however difficult or improbable the thing (w) Davidson v. Gwynne, 12 Ferry v. Williams, 1 J. B. Mo. East, 381 . Martindale v. Fisher, 498 ; S. C. 8 Taunt. 62. Have- 1 Wils. 88. Hall v. Cazenove, lock v. Geddes, 10 East, 555. 4 East, 477 ; S. C. 1 Smith, 272. Ritchiev. Atkinson, 10 East, 295. Chap. II.] Of the several Kinds of Covenants. 105 may be, or he cannot lay claim to the right which was to attach on its being executed (.v). And the fulfilment of such condition precedent must be averred, whether the duty be to be executed by the plaintiff or defend- ant, or by any other person ; or some excuse for the non-performance must be shown ; for where all proper steps are taken by a party to observe the condition, and the neglect or default of the other party renders the performance impossible, or where he dispenses with such performance, (performance being in the power of the party offering,) the tender is tantamont to a performance, and the plaintiff acquires the right as completely as if the previous deed had actually been done Q/). But if performance, or that which is equivalent to performance, be not alleged and proved, the defendant may plead nonperformance of the con- dition precedent in bar to the plaintiff's action : or if the averment of performance be entirely omitted, or imperfectly made, the defendant may take advantage of it on demurrer (z). (x) Worsley v. Wood, 6 Term 656; S. C. 1 J. B. Mo. 358, Rep. 719, reversing the judgment overruling Hotham v. East India of C. P. 2 H. Blac. 574. Company, 1 Dougl. 272. Cord- (y) Hotham v. East India Com- went v. Hunt, 8 Taunt. 596 ; S.C. pany, 1 Term Rep. 638. White 2 J. B. Mo. 660. Cook v. Jen- v. Middleton, — Davis v. Mure, — nings, 7 Term Rep. 381. Camp- and Pole v. Harrobin, cited there- bell v. French, in error, 6 Term in. Jones v. Barkley, 2 Dougl. Rep. 200, reversing the judgment 684. Ughtred'scase,7Co.lO,a. of C. P. 2 H. Blac. 163. Scott Co. Lit. 206, b. Goodisson v. v. Mayn, Cro. Eliz. 450. 479 ; Nunn, 4TermRep. 764. Smith S. C. Mo. 452; Poph. 109; 2 v. Wilson, 8 East, 443. See also And. 18; 5 Co. 20, b. Heard v. Wadham, 1 East, 619. (z) Selw. N. P. 515. 6th ed. Thompson v. Brown, 7 Taunt. As to what will be a sufficient 106' Of the several Kinds of Covenants. [Parti. Secondly, That if the acts contracted for be to be performed at the same time, neither can maintain an action without shewing a performance of, or an offer to perform, or at least a readiness to perform, his part, though it be not certain which of the parties is obliged to do the first act(«). And, Thirdly, That if the covenants be mutual and independent, as it is no excuse for the defendant to allege a breach of the contract on the part of the plaintiff, so without performance on the plaintiff's part, he is capable of supporting an action, and of course no averment of performance is necessary to be inserted in the declaration (b). averment in this respect, see Jones Com. 116. Bordenave v. Gre- v.Barkley, sup. Martin v. Smith, gory, 5 East, 107 ; S.C. 1 Smith, 6 East, 555. Phillips v. Fielding, 306. Lea v. Exelby, Cro. Eliz. 1 H. Blac. 123. 888. Lord Aldborough v. Lord (a) Ante, note (?/). Glazebrook Newhaven, cited 4 Term Rep. v. Woodrow, 8 Term Rep. 366. 763, 5. Morton v.Lamb, 7 Term Rep. 125. (b) Ante, note (y). Trench v. Rawsonv. Johnson, 1 East, 203. Trewin, 1 Ld. Raym. 124. Tho- Lancashire v. Killingworth, 1 Ld. mas v. Cadwallader, Willes, 499. Raym. 686 ; S. C. 2 Salk. 623 ; 107 CHAPTER THE THIRD. OF THE PERSONS BY AND WITH WHOM COVENANTS MAY BE MADE. The subject of this chapter may be considered, first, with reference to the capacity of the parties ; and, secondly, with reference to their number and con- nexion. SECT. I. WITH REFERENCE TO CAPACITY. All persons of sufficient legal capacity may bind In general. themselves by covenant. Every contract must have for its basis the capa- In particular bility of the parties to enter into an agreement. An incapacity to contract may therefore arise from va- rious causes. Idiots and lunatics, being creatures void of under- I. Idiots and standing, and unable, from imbecility of intellect, to give the solemn and deliberate assent (a) necessary to the validity of a contract, are on principles both (a) Every true consent sup- of them ; Puffendorf s Law of poses, 1st, a physical power; Nature and Nations, Barbeyrac's 2dly, a moral power of consent- notel. b. iii. c.6. s. 3. 1 Fonbl. ing; 3dly, a serious and free use Tr. Eq. 45. 4th ed. 108 Of the Persons by and with whom, §c. [Part I. of humanity and justice, restrained from all manner of engagements. And although such persons could not formerly have availed themselves of their own men- tal infirmity, the maxim being, that a man should not be allowed to blemish himself by pleading his own insanity (Z>) ; yet a more lenient and reasonable rule has latterly obtained, and it appears that idiotcy or lunacy would at the present day be a good defence to an action (c). Of course, previous or subsequent lunacy will not vitiate a covenant entered into during an interval of sanity ; although in a doubtful case a suspicion may arise, that the party was not in a sound state of mind at the time of executing the agreement (d). 2. Persons of Weakness of mind is not of itself a sufficient weak mind. , _ .. ground lor avoiding a covenant, unless some strata- gem or fraud be also had recourse to by the person in whose favor it is made. According to Sir Joseph Jekyll, " Where a weak man gives a bond, if there be no fraud or breach of trust in the obtaining it, equity will not set it aside for the weakness of the obligor, if he be compos mentis ; for the court will not measure the size of people's understandings or capacities, there being no such thing as an equitable incapacity, where there is a legal capacity" (e). And of this opinion was Lord Hardwicke, who held, that (6) 2 Bla. Com. 291, 2. Wms. 129 ; S. C. 2 Eq. Ca. Ab. (c) Ibid. Yates v. Boen, 2 186. pi. 8. Griffin v. Deveuille, Stra. 1104. Faulder y. Silk, 3 Cox's note, 3 P. Wms. 130. 3 Campb. 126. Woodd. Vin. Leet. Appendix, p. (d) 1 Dow, 177. xvi. () : indeed, it has been decided again and again, that an agreement to refer all mat- ters in difference to arbitration is not sufficient to oust the courts of law or equity of their jurisdiction. The court, however, observed that it was unneces- sary to say how the point ought to be determined if it were res Integra. A jury, it must be admitted, would experience some difficulty in assessing damages, for non constat that the plaintiff would succeed in the arbitration ; and this was thrown out by the court in the case first cited, as another ground of objection to the plaintiff's demand (Hi ts specify; 1st, By whom the fine is to be levied. 2dly, At whose costs. 3dly, In or as of what term. 4thly, In what court. 5thly, To whom it is to be levied. 6thly, The kind of fine. 7thly, Whether with proclamations or not. 8thly, Of what parcels. 9thly, By what descriptions. And lOthly, The clause declaratory that it shall enure to the intended uses. The form given in the Appendix may serve as a general precedent, its several provisions being varied, and rendered conformable to the peculiar state of the title, and the object the parties have in view. First, The parties by whom the fine is to be levied L B y w { ,om i i n i i i a ..... the fine is to should be expressly noticed. An omission in this be levied. 156 Of Covenants to levy Fines. [Part III. respect will be fatal. If it be intended that the fine should be levied by two or more, and the covenant comprises the name of one as a covenantor for his own acts only, a refusal by the other or others to concur will not constitute a breach of the covenant. But it is not requisite that all the parties to the fine should be covenantors : one person, as has before been observed (a), may covenant as well for the acts of others as for his own : he may therefore covenant that he and A. B. and CD. will levy a fine ; but in such case no prejudice can arise to A. B. or C. D. should they withhold their consent ; the only person liable to make reparation in damages for the breach is the party named in the lien of the covenant. Where a fine is to be levied by a married woman, the husband always takes upon himself the obliga- tion of procuring his wife's concurrence. Sometimes the husband is made in the lien to covenant for him- self, his heirs, executors, and administrators, and also for his said wife, that he and she will levy a fine ; but this is an inaccurate form. The lien should in all cases be kept distinct from the body of the cove- nant, and it would be difficult to frame an action consistently with the form and language of a cove- nant by a man for himself and his wife. The cove- nant should be by the husband for himself, his heirs, executors, and administrators, that he and his wife, (she hereby consenting), will levy the fine. Whe- ther her consent be noticed or not is unimportant ; (a) Ante, p. 26. Chap. III.] Of Covenants to levy Fines. 157 for the mention of her approbation cannot affect her, nor does it appear from any case that an equity is raised against her by such consent. A warranty in a fine, however, by a baron and feme, annexed to an estate for years, will bind the feme, though under coverture at the time, and an action of covenant will lie against the feme thereon after the death of the baron (b). In an action on a covenant that a feme coverte should, when requested, join in levying a fine, and executing any deed which might be required of her by the plaintiff, in order to bar her right of dower, it has been recently held, that the plaintiff's decla- ration, which averred merely an application to and refusal by her to join in a fine and to execute the deed, was insufficient, in not averring an application to the covenantor, in order that he might exercise what influence he possessed to induce her to con- sent, and not to subject him to an action by reason of her refusal (c). . If one covenants that J. S. shall levy a fine, the insanity of J. S. will not amount to an excuse for non-performance ; but if one covenants that J. S. shall do all such reasonable acts for further assurance as the covenantee shall devise, and a fine is required, the refusal of the justices, by reason of J.S. being non compos mentis, to take his conuzance of the fine, (6) Wotton v. Hele, 2 Saund. 684. 703. 709. 723. 177 ; S. C. 1 Mod. 66. 290 ; 1 (c) Tooley v. Nicholls, M. T. Sid. 466; 1 Lev. 301; 2 Keb. 1828. MS. 158 Of Covenants to levy Fines. [Part III. will not be a breach of the covenant, a fine under the circumstances not being a reasonable act (d). One who covenants generally to levy a fine is not bound to go before commissioners, authorised by dedimus to take the fine, to acknowledge his con- sent (e). It may be done either in court or by com- mission (f). 2. At whose costs. 3. Of what term. Secondly, As the expenses of a fine are' consi- derable, the covenant should name the party by whom they are to be defrayed. If a fine be neces- sary to effect a valid conveyance, the conuzor must undertake the charge, unless he be exempted by express stipulation. Where it is to be levied merely for the satisfaction of the purchaser, the expense falls on him. And it may be mentioned here, that a fine required under a covenant for further assurance, where there is no provision respecting the expenses, must be levied at the costs of him who is to have the benefit of\t(g). Thirdly, The term or time within which the fine is to be levied is also to be stated. It is necessary to caution the reader against the adoption of a form which has inadvertently crept into practice, allowing so much latitude as not to be capable of being the foundation of an action, at least during the (d) Pet v. Cally, I Leon. 304. Keb. 666. (e) Sty. Prac. Reg. 172. (^)Goldney v.Curtise, 1 Bulstr. (J") Turner v. Benny, 1 Mod. 90. But see Preston v. Dawson, 63, latter end of case; S. C. 2 1 Brownl. & Gold. 70. Chap. III.] Of Covenants to levy Fines. 159 covenantor's life. The form alluded to provides, that the covenantor, his heirs, &c. shall in or as of — term now last past, or in or as of some subsequent term, ac- knowledge and levy, &c. It would be impossible to assign a breach of a covenant framed in these words. The generality of the provision should there- fore be qualified by some restrictive words, confining the duty of levying the fine within a definite limit of time. This may be accomplished by adding words of notice or request, thus ; that the covenantor, his heirs, &c. shall in or as of — term now last past, or in or as of some subsequent term, when thereunto re- quested by the covenantee, his heirs or assigns, ac- knowledge, &c, or, on receiving from the covenantee, his heirs or assigns, so many weeks' or months' notice in writing for that purpose. Even if it be intended that the fine should not be levied immediately, or if the provision be made merely with a view to satisfy the scruples of a cautious purchaser, and to secure his right to a fine, should the same at any future period be deemed advisable, it is proper to take care that the intended conuzee may have the power of fixing at his discretion the time for having the covenant performed. Fourthly, With reference to the court in which 4. In what the fine is covenanted to be levied, it is merely ne- cour ' cessary to mention that it must be one of compe- tent jurisdiction. What courts are invested with adequate authority cannot be made a subject of in- quiry in these pages ; information on that question may be obtained from the perusal of works expressly treating of the law of fines. 160 Of Covenants to levy Fines. [Part III. Fifthly, The party to whom the fine is to be levied, 5. To whom the fine is to be levied. and Sixthly, J he kind of fine, must necessarily be 6. The kind of fine. regulated by the circumstances of each particular case, and the form varied accordingly ; but it may be noticed, that the covenantee, being the party who is to take advantage of the fine, should do the first act necessary to its completion ; namely, sue out the writ of covenant (//) ; and before an action will lie for refusal, the covenantee must bring his writ of covenant, and praecipe, and concord, and tender it to the covenantor (i), unless the performance of the covenant be rendered impossible by the covenantor's own act (A). 7. Of the pro- clamations. Seventhly, Fines are very seldom levied without proclamations. Although they may not be essential to effectuate the object in view, the covenant almost invariably stipulates that proclamations shall be thereupon had and made. Unless it be so levied, the fine cannot operate as a bar to the issue of a tenant in tail, nor serve, by reason of non-claim, to protect a defective title from latent claims. The saving of expense, by acknowledging a common law fine, is of inconsiderable moment, compared with the advantages to be attained by the addition of pro- clamations. 8. Of the parcels. Eighthly, Of the parcels. More acres of land are usually inserted in a fine than are intended to pass, (h) Palmer's case, 5 Co. 127, a. Hill v. Waldron, Winch, 29 ; S. C. Hutt. 48. Goldney v. Curtise, 1 Bulstr. 90. But see 1 Mod. 62. (i) Sty. Pract. Reg. 172. (k) Hill v. Waldron, supra. Main's case, 5 Co. 20, b. Chap. III.] Of Covenants to levy Fines. 1GI that the fine may be sure to comprehend enough. The addition of a few acres does not, of itself, furnish an excuse for refusing to levy a fine pursuant to a covenant ; but a covenant to levy a fine of certain lands in the township of A. in the parish of B. will not oblige the covenantor to levy a fine tendered to him, comprising other lands of which he was seised in B. besides those contained in the covenant (/). Ninthly, The mode of describing the parcels now 9. The mode claims our attention. If the covenant to levy the ^describing J the parcels. fine be a substantive, independent deed, it is cus- tomary to describe the parcels as fully as possible by particular description, or by such general and com- prehensive terms as will include all the parcels meant to be subject to the operation of the fine, care being taken at the same time to exclude, by way of excep- tion, such as are not intended to be passed ; and it may be mentioned, that no deviation should be made from the old mode of description, unless very pe- culiar circumstances require the alteration. The general words " All houses, outhouses," &c. are also usually inserted. Where the covenant constitutes but a part of the assurance ; for instance, where it is comprised in a release, on a conveyance by lease and release and fine, the parcels are generally described in the body (t) Danby v. Gregg, Willes, Mo. 810; S. C. nom. Goldney 150; S. C. nom. Grigg's case, v. Curtise, 1 Bulstr. 90. Wilson 7 Mod. 293. Boulney, or Bold- v. Welsh, 2 Bulstr. 317; S. C. ney, v. Curteys, Cro. Jac. 251 ; 1 Rol. 103. 117. M 162 Of Covenants to levy Fines. [Part III. of the release, or by some prior recital. It is then sufficient that the covenant notice the parcels by reference in these or the like terms, " the said mes- suages or tenements, &c. hereby released or other- wise assured or intended so to be, with the appurte- nances." Sometimes the particulars by which the parcels are to be described in the fine are specified, as, " the said messuages, &c. hereby released, &c. with the appurtenances, by the names and descriptions of five messuages, &c. or by such other apt and con- venient names," &c. But this reference to the parti- cular description in the fine may be omitted, and the form run thus : — " the said messuages, &c. hereby released, &c. with the appurtenances, by such apt and convenient names," &c. : the latter is the more approved form. 10. The de- Tenthly, The declaratory clause, to prevent a re- clause. suiting use, should carefully specify the parties by whom, and the parties in whose favor, the uses are to be declared, and the extent of their respective ownerships. Thus tenant for life, in tail, and in fee, may join in a fine and declare the uses according to their several estates. Tenants in common, also, co- parceners, and joint tenants, should declare the uses as to their individual shares. The form of the declaration, it will be observed, is not restrained to the particular fine intended to be levied, but comprehends within its operation " all and every other fine and fines, &c. and other assur- ances," the uses whereof the parties have power to direct. Chap. III.] Of Covenants to levy Fines. I 63 Sometimes (observes Mr. Preston), all the parcels comprised are to be included in the fine ; at other times part only ) a decree was made that the defendant should procure his wife to join with him in a fine to the plaintiff, according to his cove- nant; and the reason assigned was, that he had taken (s) Ibid. Cotter v. Layer, 2 P. Ca. Ab. 25. pi. 16 ; 62. pi. 2. Wms. 626. Holt v. Holt, Ibid. (u) Rust v. Whittle, Toth. 94. 652. Hinton v. Hinton, 2 Ves. (w) Sands v. Tomlinson, Toth. 634. 93. Westdeanev. Frizell, lb. 93. (0 Voux v. Gleas, Toth. 92. (w) 5 Ves. 848. Barty v.Herenden, Ibid. 93. Grif- (a) Barrington v. Horn (in fin v. Tailor, Ibid. 106. See also 1715), 5 Vin. Ab. 547. pi. 35 ; Anon. 2 Ch. Ca. 53. Baker v. S. C. 2 Eq. Ca. Ab. 17. pi. 7, Child, 2 Vein. 61 ; S. C. 1 Eq. 166 Of Covenants to levy Fines. [Part III. upon himself to do so, and the plaintiff' had paid the full value of the estate. In Hall v. Hardy (j/) the parties agreed to abide by an award. The arbitrators made an award that the plaintiff' should pay 10/. to the defendant at such a day, and 30/. at another day, and that thereupon the defendant should procure his wife to join with him in a fine and deed of uses, and thereby convey the pre- mises to the plaintiff and her heirs. The plaintiff paid the defendant the 10/. on the day on which it was awarded to be paid, and afterwards tendered the remaining 30/., which the defendant was willing to take, but would not execute the fine and deed of uses; wherefore the plaintiff brought a bill to compel him to a specific performance of the award. The Master of the Rolls declared that there had been a hundred precedents, where, if the husband for a valuable con- sideration covenanted that his wife should join him in a fine, the court had decreed him to do it; for that he had undertaken it, and must lie by it if he did not perform it. And the reason given by the Master of the Rolls in Winter v. D'Evreux (z) was, because in all these cases it was to be presumed that the husband, where he covenanted that his wife should levy a fine, had first gained her consent for that purpose. Again, in Withers v. Pinchard («), the estate (one (y) Hall v. Hardy (in 1733), Eldon's remarks on this reason- 3 P.Wms. 187; S. C. 2 Eq. Ca. mg, 8 Ves. 514, 15. post, p. 171. Ab. 28. pi. 35. (a) Withers v. Pinchard (in (z) Winter v. D'Evreux, 3 P. 1795), cited 7 Ves. 475. Wms. 189. n. [B]. But see Lord Chap. III.] Of Covenants to levy Fines. 167 moiety of which was the wife's) was settled to cer- tain uses, with a power of revocation in the husband and wife with the consent of trustees, and the hus- band agreed to sell ; although the wife by her answer, as well as the husband, swore that she never gave her consent to the sale, and they stated that they believed the trustees would not consent to the revo- cation of the uses, the Lord Chancellor decreed a specific performance, and that the husband should convey, and procure all proper parties to convey, as the Master should direct, if the parties should differ concerning the conveyance. The same doctrine still prevailed in a case of much later date(^). The husband, for himself and his wife, (she thereby consenting,) had cove- nanted that he and his wife would, within one month, surrender the copyhold estates of which they were seised in her right, to the use of the plaintiff and others, upon trust to sell and pay the debt of 3299/. 15s. due to them. By their answer the de- fendants attempted to set up as a defence that the deed was obtained by fraud. The husband was at last decreed specifically to perform the covenant, and to procure his wife to join in the surrender ; but the Master of the Rolls (Sir William Grant) in his judgment seemed to lay great stress on the circum- stance of the husband not alleging his inability to obtain his wife's concurrence ; of his not offering to pay the debt ; and of the impossibility for him to (b) Stephenson v. Morris, Mor- 474. See also 16 Ves. 367. ris v. Stephenson (in 1 802), 7 Ves. 16$ Of Covenants to levy Fines . [Part III. put the plaintiff in the same situation as if the deed had never been executed ; for the plaintiff might have had an execution against him, if he had not re- deemed himself by giving this security ; and he said that it was unnecessary to discuss Lord Cow- per's reasoning in Ortread, or Outram, v. Round (c), the principal case being so dissimilar to that, and differing from it in all its circumstances. Hence we may infer that Sir William Grant would have pro- nounced a different decree, had the defendant stated his absolute inability to perform his agreement, and offered to put the other party in the same situation as if the agreement had never taken place. And with respect to the argument, that the court would not enforce the husband to use his controul over his wife, and compel her to part with her property, per fas out nefas to obtain that which the law would not permit her to accede to without a private examin- ation, His Honor said( that in cases of forfeiture occasioned by a breach of covenant to insure, a court of equity will not afford the lessee any relief ; the principle being, that where such relief is granted, the omis- sion and consequent forfeiture must be the effect of inevitable accident, and the injury or inconvenience arising from it must be capable of compensation ; but where the transgression is wilful, or the com- pensation impracticable, the court will refuse to interfere. As it is impossible to estimate in damages the quantum of the risk run by non-insurance, the effect of giving relief would be, that any tenant might break this special covenant with impunity ; and every landlord must then be content to take his tenant for his insurer, for want of power to en- force his covenant. Whatever, therefore, may be (q) Doe dem. Pitt v. Shewin, affirmed in Exch. Chamb. 1 Bos. 3 Campb. 134. See also Tarle- & Pul. 471 ; S. C. 3 Anstr. 707. tonv.Staniforth,5TermRep.695, Salvin v. James, 6 East, 571. Chap. V.] Of Covenants to insure. 19'3 done in other cases, the court will not relieve a tenant from a forfeiture occasioned by his neglect to insure (>*). In one instance, although the parti- cular circumstances of the case were relied on as forming a special ground for such interference, the plaintiff having laid out 3000/. in repairs on the premises, the Lord Chancellor refused an injunc- tion to restrain the defendant from suing at law upon the breach ; for the omission to insure was stronger against the tenant than the omission to re- pair, because in the latter case the landlord might by exercising due vigilance see to the observance of the covenant ; but in the former, where the lessee had undertaken to keep insured, the landlord must rely on him for the fulfilment of his engagement^). (r) Rolfe v. Harris, 2 Price, (s) White v. Warner, 2 Meriv. 206, n. Reynolds v. Pitt, Ibid. 459. 212, n.; S. C. 19 Ves. 134. J94 CHAPTER THE SIXTH. OF COVENANTS FOR PAYMENT OF RENT. I. Of the ob- The punctual payment of rent is one of the first the cove- considerations with a landlord on granting a lease, nant. The lessee during his own occupation, or his as- signee, while his enjoyment lasts, may, by other forms of action, be compelled to make these pay- ments ; yet, in the absence of this covenant, by assigning over, they may discharge themselves of all future responsibility («), and as the premises may be transferred into the hands of a beggar (b), an in- solvent (c), or a person leaving the kingdom, pro- vided the assignment be executed before his depar- ture (d), the lessor would to a certain extent, lose his security for rent. A covenant to pay rent is, there- fore, invariably contained in every indenture of lease. The liability of the lessee on the covenant will not be destroyed or diminished by his act of assigning (a) Pitcher v. Tovey, 1 Salk. (b) Le Keux v. Nash, 2 Stra. 81 ; S. C. 4 Mod. 71 ; 1 Show. 1221. Taylor v. Shum, 1 Bos. 340; 2 Vent. 234; Holt, 73; & Pul. 21. And see Philpot v. 3 Lev. 295; Carth. 177 ; 1 Frecm. Hoare, Ambl. 480. 326; 12 Mod. 23. Staines v. (c) Onslow v. Corrie, 2 Madd. Morris, 1 Ves. & B. 11. See 330. also Treacle v. Coke, 1 Vern. 165 ; (d) Taylor v. Shum, supra. S. C. 1 Eq. Ca. Ab. 47. pi. 3. Chap. VI.] Of Covenants for Payment of Rent. 195 over, but will endure against him (e), and his execu- tors, having assets (/), until the determination of the demise. The advantage, therefore, of the covenant is, that, in case of his tenant's alienation, it affords the landlord a double claim for the payment of his rent, the assignee being chargeable in respect of privity of estate, and the original lessee still con- tinuing amenable in respect of privity of contract. In the case of an indenture executed by the lessee, a covenant of this description will arise on the words yielding and paying (g). It is a covenant running with the land, and binding on an assignee without his being specially named (A). Where covenant was brought for rent reserved payable at the two most usual feasts of the year, St. John the Baptist and Christmas, or within four- teen days after, the first payment to be made at Christmas next after the date, and a breach was assigned in non-payment of the rent at Christmas, without taking notice of the fourteen days after ; it was argued on demurrer, that the fourteen days after should not refer to the first payment at Christ- mas, but that it was to be absolutely on Christmas day ; the court, however, did not assent to this, but decided that the defendant had fourteen days after (e) Edwards v. Morgan, 3 Lev. 406. Isteed v. Stoneley, 1 And. 233. Staines v. Morris, ubi sup. 82. Parker v. Webb, 3 Salk. 5. Buckland v. Hall, 8 Ves. 95. Holford v. Hatch, 1 Dougl. 183. (/) Pitcher v. Tovey, sup. Stevenson v. Lambard, 2 East, (g) See as to this ante, p. 54. 575. Vyvyan v. Arthur, 1 Barn. (h) Porter v. Swetnam, Sty. & Cres. 416. O 2 19C Of Covenants fur Payment of Rent. [Part III. the first Christmas, as well as any other to pay his rent in, and therefore he had judgment (/). Where a lease was made to hold from Michaelmas 1661 to Michaelmas 1668, paying so much rent half-yearly ; the lessee demurred to an action for half a year's rent ending at Michaelmas 1668, sup- posing, as the words were to Michaelmas 1668, that there was not an entire half year, the day being to be excluded ; it was admitted that in pleading usque talefestum would exclude that day ; but it was held that in the case of a reservation, the construction was to be governed by the intent, which clearly was that the last day should be included (k). One covenants for payment to his lessor of an ad- ditional rent of 10/., in case a certain piece of land (respecting which some disputes had existed) should be adjudged to belong to the lessor, or in case the lessee should by any ways or means come to the possession thereof, so that he might enjoy the same as part of the rope-walk demised, the burthen of this payment, it was held, must be borne by the lessee, whether he enjoyed the land by means of his land- lord, or by agreement with a third person, and al- though he paid such third person a yearly rent for the occupation (/). (i) Anon. 2 Show. 77. Pugh v. Duke of Leeds, Cowp. (A) Pi got v. Bridge, 1 Vent. 292. 714. Umble v. Fisher, Cro. Eliz. 702. (I) Heath v. Baker, Ca. temp. Salter v. Kidley, 1 Show. 59. Hardw. 319. Walker v. Harris, 1 Anstr. 245. Chap . VI . ] Of Covenants for Payment of Rent. J 9 7 It may be mentioned, that an eviction by title, or a wrongful eviction of the tenant by the lord himself, will operate as a suspension of rent, and is a good plea in bar to an action of covenant for nonpay- ment (m). But where to an action of covenant for nonpayment of rent, on a lease of the parsonage of Dale, the defendant pleaded, that before any one day of payment of the same the ordinary sequestered the said parsonage for nonpayment of the first fruits, the plea was held to be bad, for the defendant did not show that any act was done by the plaintiff him- self in his default (n). Whatever unfortunate accidents may befall the II. In case demised property during the term, or however unfa- vourably circumstanced the lessee may be for per- forming his engagements, he cannot rid himself, as long as the relation of landlord and tenant continues, of this express covenant. If the premises be rendered uninhabitable by fire, or totally burned down (0), or (m) Dalston v. Reeve, 1 Lord Rep. 671. Seddonv. Senate, 13 Raym. 77. Jordan v. Twells, East, 79. Reynolds v. Buckle, Ca. temp. Hardw. 171. Cooper Hob. 326. and Jones v. Bodinner, v. Young, Fortes. 360. Co. Lit. Comb. 380, denying Hob. 326. 148, b. Walker's case, 3 Co. 22. (n) Jeakill v. Linne, Hetl. 54. Hodgkins v. Robson and Thorn- (0) Richards LeTaverner's case, borow, 1 Vent. 276 ; S. C. Pol- Dy. 56, a. pi. 15. Monk v. Coop- lexf. 141 ; 3 Keb. 500. 505. 518. er, 2 Stra. 763 ; S. C. 2 Lord 541. 547 ; and 2 Lev. 143, nom. Raym. 1477. Belfourv. Weston, Hodgson v. Thornborough. And 1 Term Rep. 310. Pindar v. see Bushell v. Lechmore, 1 Lord Ainsley, cited ibid. 312. Doe Raym. 369. Roper v. Lloyd, dem. Ellis v. Sandham, 1 Term T.Jo. 148. Hunt v. Cope, Cowp. Rep. 710 ; S. C. 3 Swanst. 685. 242. Lloyd v. Tomkies, 1 Term 198 Of Covenants for Payment of Rent. [Part III. surrounded by water (p), or destroyed by flood (q), the rent will remain payable ; nor can the landlord be forced to repair the damage, although a notice be given and request made to that effect by the tenant (r) ; and even if the landlord be bound to rebuild, and neglect to do so, no advantage can be taken by the tenant of this liability by way of plea ; because the damages recoverable must be assessed by a jury, and being uncertain, cannot be set off against the demand for rent (s). Whether it is a good defence to an action on an agreement to take, assigning a breach in the not taking the house pur- suant to the agreement, and the occupying the house and not paying rent for half a year, that the house was destroyed by fire before the day on which it was arranged that the defendant should enter and enjoy, does not appear to be settled (f). ill.OfEqui- The legal right of a landlord to receive his rent, from pay- notwithstanding the destruction of the demised pro- ment in case perty by fire or tempest, being indisputable, it was at one time supposed that the tenant might obtain relief in equity against these claims, on the ground that he could not have the enjoyment of that which was an (p) Paradine v. Jane, Sty. 47 ; S. C. 2 Eden, 219 ; Cited in Cut- S. C. Al. 26. ter v. Powell, 6 Term Rep. 323. (q) Carter v. Cummins, cited (s) Monk v. Cooper, supra. 1 Ch. Ca. 84. Weigall v. Waters, 6 Term Rep. (r)Belfour v.Weston, sup. Monk 488 ; S. C. 2 Anstr. 575. v. Cooper, 2 Stra. 763. Steele v. (t) Phillipson v. Leigh, 1 Esp. Wright, cited 1 Term Rep. 708. N. P. C. 398. HoltzapfFel v. Brown v. Quilter, Ambl. 621; Baker, 18 Ves. 117. Chap. VI.] Of Covenants for Payment of Rent. 199 equivalent for the rent demanded. And in a case («) where a bill was filed by a lessee to restrain his landlord (who had insured and had received the in- surance money) from suing at law for rent after the premises had been consumed, and to compel him either to rebuild, or to pay the insurance money to the tenant towards satisfaction of his loss, Lord Northington expressed his surprise that it was thought so clear a thing, that there was no defence to such an action at law ; and was so well convinced of the injustice of a man paying for a thing which he could not enjoy, and that occasioned by an accident which he did not undertake to stand to, that he was going to give directions for the cancellation of the lease, (an equity which the lessor by his answer had offered,) but the plaintiff being present in court, and choosing to continue tenant without having the house rebuilt, rather than give up the lease, his Lordship dismissed the bill with costs. Lord Apsley (y) was also of opinion that though the landlord was not bound to rebuild, yet the tenant was neither obliged to rebuild, nor to pay rent till the premises were rebuilt. And in Campden v. More- ton (w), where the tenant, being sued for rent at law, filed his bill for an injunction, or that he might have the money paid by the insurance office towards re- (u) Brown v. Quilter, Ambl. Rep. 708. 619. Cited 1 Term Rep. 708. (w) Campden v. Moreton,Serjt. Serjeant Hill's MSS. in Lincoln's Hill's MSS. in Lincoln's Inn Li- Inn Library, vol. x. p. 405. brary, vol. x. p. 403 ; S. C. 2 (v) Steele v. Wright, coram Eden, 219. Lord Apsley, 1773, Cited ITerm 200 Of Covenants for Payment of Rent. [Part III. building the premises, L. C. Northington continued the injunction till the hearing, and said that it was a most unreasonable and unconscientious thing that the lessors should be paid for houses which were the only or the principal thing demised in this lease, when the lessee could not have the enjoyment of them by an accident, the risk of which the lessor had by the lease taken upon himself(V), or from which he had at least discharged the lessee ; and he seemed to think that the tenant might plead the matter in such manner as for a court of law to con- sider the accident as an eviction, and to give the tenant relief at law. And in a much earlier case (y) L. C. Clarendon inclined to interpose in favor of a lessee, to prevent his being liable to payment of rent, where the premises had been taken from him by the king's enemies, but it does not appear that he in fact interposed in consequence of this opinion. But whatever success may formerly have attended these applications to Chancery, at the present day a very different opinion is entertained. No reliance is now placed on the above cases, subsequent decisions having, if not completely overruled, at least materi- ally weakened their authority. The bill in one case (z) prayed for an injunction to restrain proceedings at law, and that the landlord might be compelled to re- pair, or accept a surrender of the lease ; but on the principle that the rule of law must prevail where the (x) The lessee's covenant to Ch. Ca. 83. repair contained an exception in (z) Hare v. Groves, 3 Anstr. case of fire. 687. (y) Harrison v. Lord North, 1 Chap. VI.] Of Covenants for Payment of Rent. 20 J equities are equal, and that the landlord's right to recover at law was fully established, the bill was dismissed. Lord Eldon, in a case (a) before him very similar in its circumstances, considered himself bound by this solemn determination. His Lordship's reasoning on the subject is equally concise and pointed. Sup- pose, said he, a demise for seven years at a rent of 100/. per annum, the tenant to repair in all cases except fire, not to be liable in that case, and the landlord stipulating, that in case of fire he will be content, at the end of seven years, to take the land without the house ; if they choose to make that agreement why should they not? These parties have made that agreement. If it can be maintained that the meaning of the contract is, that if a fire should happen, the rent shall not be paid, there is no occasion to come into equity ; but, if that is not the effect of the contract at law, I cannot see any equity : the injunction was dissolved. The notion (/>) that an offer or refusal on the te- nant's part to give up his lease will weigh with the (a) Holtzapffel v. Baker, 18 an action was brought for rent Ves. 115; S. C. 4 Taunt. 45. after the house was burned down, (6) Cutter v. Powell, 6 Term and the tenant applied to the Court Rep. 323, where in answer to an of Chancery for an injunction, assertion by counsel, that a tenant Lord C. Northington said, that if who had covenanted to pay rent the tenant would give up his lease, was bound to continue paying the he should not be bound to pay rent though the house was burned the rent: and his Lordship re- down, Lord Kenyon, C. J. ob- ferred to Brown v. Quilter, ubi served, " But that must be taken sup. p. 199. with some qualification ; for where 202 Of Covenants for Payment of Rent. [Part III. court seems to be abandoned. Lord Northington, indeed, laid some stress on that circumstance in his decision in Brown v. Quilter, where the lessee re- jected an offer to have the tenancy determined. But in the two last cases, where a surrender of the leases was prayed, no notice was taken of it, nor was the judgment in either case at all influenced by the dis- tinction ; it may now, therefore, be considered clear, that a tenant will not in any degree benefit himself by proposing a cancellation of the lease and resti- tution of the premises. IV. Where The receipt of insurance money by the landlord, the landlord wnere ne } ias taken the precaution of insuring, has has received x ° money on also been submitted as a ground for equitable relief ; but this claim will be shown to rest on no very solid foundation. In this respect the cases of Brown v. Quilter, Steele v. Wright, and Campden v. Moreton, are distinguishable from Hare v. Groves. The les- sors, in the three former instances, without any un- derstanding or agreement with their lessees on the subject, had insured for their own benefit, and had received the amount on their policies after the burn- ing of the premises. To the extent, therefore, of this insurance they were indemnified. In the last case the landlord had not protected himself by similar means. This was adverted to by Chief Baron Mac- donald (b), and he considered that there might be some equity to say, that the lessor should not keep the house or its value, and receive the rent also, but should either put it down again for the use of the lessee, or remit the rent. (6) 3 Anstr. 694. his insu- rance. Chap. VI.] Of Covenants for Payment of Rent. 203 The latest case (c), however, on the point, before the Vice-Chancellor (Sir John Leach), has superseded the distinction ; and he declared that, with regard to the equity which the plaintiff alleged to arise from the defendant's receipt of the insurance money, there was no satisfactory principle to support it ; for he asked, on what principle it could be that the plaintiff's situ- ation was to be changed by that precaution on the part of the defendant with which the plaintiff had nothing whatever to do. To sum up the whole, therefore, it is evident, First, That as the lessee has covenanted to pay his rent during the continuance of the term, so long will he be held liable at law on his express agreement, how- ever ruinous may be the condition of the premises. Secondly, That as he might have provided in the lease for a suspension of rent in the case of accident by fire, and has neglected to do so, a court of equity cannot supply that provision which he has omitted to make for himself; for it must be intended that the purpose of the parties was according to the legal ef- fect of the contract. Thirdly, That payment by an insurance office on the landlord's policy cannot alter the case ; and, Finally, That the tenant has no equity to compel his lessor to expend money received from an insurance office in rebuilding the demised pre- mises burned down, nor to restrain the landlord from suing for the rent until the premises be rebuilt. (c) Leeds v. Cheetham, 1 Sim. detail in the Chapter on " Cove- 146. The circumstances of this nants to repair," post. See Holt- case and of some of the cases pre- zapffel v. Baker, 18 Ves. 118. viously cited will be found more in argo. 204 Of Covenant* for Payment of Rent. [Part III. The form of a covenant for payment of rent should, therefore, contain an exception in favor of the tenant, during such time as the premises demised should re- main uninhabitable by reason of accidental fire. V. Of relief From a very early period courts of law have exer- at aw rom cls>e( [ a discretionary power, in cases of nonpayment forfeiture on J r l J breach. of rent at the specified day, of staying proceedings on payment of rent actually due, and all costs, at any time before execution executed (d) ; but it was a maxim, that persons seeking equity .must do equity ; and if by the equity of the court the plaintiff lost the benefit of the forfeiture of his lease the law gave him, it was but reasonable he should have security for his rent. Where, therefore, the defendant was a soldier, and, consequently, a privileged person, he was ordered to give security for the future payment of rent(e). The limit within which this practice of staying proceedings was allowed to obtain, was cur- tailed by act of parliament. By 4 Geo. 2. c. 28. (/) it is enacted, " That if the tenant or tenants, his, her, or their assignee or assignees, do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or adminis- trators, or his, her, or their attorney in that cause, or pay into the court where the same cause is de- pending, all the rent and arrears, together with the costs, then and in such case all further proceedings on the said ejectment shall cease and be discon- (d) Phillips v. Doelittle, 8 Mod. Blac. 746. 345. Goodtitle v. Holdfast, 2 (e) Smith v. Parks, 10 Mod. Stra. 900. Goodright dem. Ste- 383. venson v. Noright, 2 Wm. (/) 4 Geo. 2. c. 28. s.4. Chap. VI.] Of Covenants fur Payment of Rent. 205 tinued." It appears, then, by the words of the act, that the legislature only meant to legalize that prac- tice to a certain extent, namely, the application of the tenant before trial ; and the court has refused to extend the same after trial, lest ). So a distinct (w) 46 Geo. 3. c.65. s. 195. tice, 4 Taunt. 549. Morgan v. (x) Howe v. Synge, 15 East, Edwards, 6 Taunt. 394; S. C. 440. Readshaw v. Balders, 4 2 Marsh. 96. Buxton v. Monk- Taunt. 57. Fuller v. Abbott, 4 house, Coop. 41. Wigg v. Shut- Taunt. 105. Tinckler v. Pren- tleworth, 13 East, 87. 222 Of Covenants for Payment of [Part III. covenant in a lease, whereby the tenant bound himself to pay property tax, and all other taxes imposed on the premises, or on the landlord in respect thereof, though void and illegal by this statute, was adjudged not to avoid a separate covenant in the lease for pay- ment of rent, clear of all parliamentary taxes, &c. generally, for such general words were understood of such taxes as the tenant might lawfully engage to defray (3/). An occupier of lands, having during a course of twelve years paid to the collector of taxes the land- lord's property tax, and the full rent as it became due to the landlord, without claiming any deduction on account of the tax so paid, it was holden, that as these were voluntary payments on the occupier's part, he could not recover from his landlord any part of the property tax so paid(s); and it appears that the party would also be precluded from relief in equity (a). V. Church Church and poors' rates, being charges on the rates P ° 0rS person and not on the land, are not comprised within a covenant by a lessor to pay all the taxes on the land demised (Z>) ; nor within a covenant by him to (y) Gaskell v. King, 11 East, 314. Jeffrey's case, 5 Co. 66, b. 165. Anon. 4 Mod. 148. Rex v. (2) Denby v. Moore, 1 Barn. St. Luke's Hospital, 2 Burr. & Aid. 123. Andrew v. Han- 1064. Rex v. St. Bartholomew, cock, 1 Brod. & B. 45. 4 Burr. 2439. Harrison v. Bul- (a) East v. Thornbury, 3 P. cock, 1 Hen. Blac. 68. Milward Wms. 127.n. [B]. and cases cited v. Caffin, 2 W. Blac. 1330. there, and ante,-p. 219. 220. Lord Bute v. Grindall, 1 Terra (b) Theed v. Starkey, 8 Mod. Rep. 338. Chap. VII.] Taxes, Rates, 8$c. 223 indemnify the lessee against all duties, charges, and taxes whatsoever, to be imposed upon the lands, except tithes (c). This exception of tithes was not allowed to influence the construction of the cove- nant ; for the tithes being a duty payable out of the land, the exception was necessary in opposition to the word duties. (c) Case v. Stephens, Fitzgib. 297 . 224 CHAPTER THE EIGHTH. OF COVENANTS FOR PRODUCTION OF DEEDS, &c. Where a vendor disposes of part only of his estate, he usually retains the title deeds in his own posses- sion, and covenants with the vendee for their pro- duction. And where the lands are sold in lots to different purchasers, it is customary to stipulate that the buyer of the largest lot shall be entitled to the custody of the deeds, on entering into covenants with the purchasers of the smaller portions to produce those deeds, when required, to substantiate their title. In the absence of positive agreement to this effect, no one purchaser can assert his right to possess these documents in exclusion of the others ; nor does it appear from any case, that the Court of Chancery will interpose to deprive one purchaser of the custody of the deeds, however small his share of the property may be, for the purpose of depositing them in the hands of another purchaser, although his part of the lands may greatly exceed in magnitude that of the actual holder of the instruments. Mr. Fearne was of opinion, that the principle which required a vendor, who retained the title deeds in his own hands, to enter into covenants for title extending to ihe acts of his grantors, was applicable Chap. VIII.] Of Covenants for Production. 225 to the covenant for the production of title deeds. He says (a), " Where a vendor retains to himself the title deeds, or the means of resorting to and obtaining their production, it seems but reasonable that he should covenant for their production to his vendee ; for though the deed itself containing the covenant for production of them from the grantors of the vendor, if it extends to his assigns, as usual, would, when obtained by the vendee, I think, entitle him to the benefit of such covenant, as well as of the other covenants extending to assigns, so far as respects the parts purchased by him ; yet to avoid all question on this point, and leave the risk attending the loss of the means of enforcing such covenants on the person retaining the custody of those means, I think the purchaser may reasonably require a covenant from the vendor for the production of those title deeds, to such an extent as the covenant in the vendor's pur- chase deeds entitled him to the production thereof; unless he can procure a new covenant for that pur- pose from his grantors to the new purchaser. If it is right that a vendor retaining the title deeds himself should covenant for their production, can it be other- wise that a vendor retaining in his own custody the means of obtaining their production, or a compen- sation in default thereof, should covenant to produce them to his vendee, in the manner and on the terms upon which he is so entitled to their production ? Where is the difference between the vendor's retain- ing the possession of the title deeds himself, and his retaining the right and means of obtaining that pos- («) Fcavne's Pnsth. 113. Q 22G Of Covenants for Production. [Part III. session on any requisite occasion, in respect to his obligation to produce them on any such occasion to his vendee ? Or why should he refuse to covenant to produce them in one case more than in the other, unless he distrusts the means he has retained for obtaining the production of them himself? If he does so, that becomes an additional reason for still further caution in, and security to, his vendee. It therefore seems to me, that the vendor in this case retaining his own purchase deed, which entitles him to the production of the scheduled title deeds, may reason- ably be required to enter into a similar covenant for producing the same deeds to his vendee." At the same time, Mr. Fearne thought, that this covenant should be subject to a qualification, exonerating the vendor from responsibility in case he should produce his own purchase deed from his grantors, in order to enable the vendee to avail himself of the covenants therein contained, which of course would include the grantors' covenant to produce, and should also concur in any act for obtaining their production. A later celebrated writer(6), however, observes, that where a person having a covenant for the production of the title deeds to his estate, sells only part of the estate and retains his purchase deed, and the cove- nant to produce the deeds ; in such cases he should conceive the practice to be, for the vendor to enter into the usual covenant for production of the title deeds in his possession, which of course would in- (b) Sugd. Vend, and Purch. 450. 6th edit. Chap. VIII.] Of Covenants for Production. 227 elude the original covenant to produce the deeds. And this is the course usually pursued. Covenants for production are real covenants and run with the land for the benefit of purchasers, but not for the benefit of vendors (c) ; in other words, purchasers from the covenantee may take advantage of them against the covenantors themselves, but the liability will not extend to the covenantors' assignees. The consequence is that a sale by the covenantor would materially tend to the prejudice of the cove- nantee and his assigns, by defeating them of their power of obtaining a specific performance of the cove- nant. It is true that the remedy of an action at law for a breach of covenant would remain, but damages would amount to a poor substitute for the advantages derivable from the production of the documents them- selves. By some gentlemen, indeed, a distinction is taken, as to the equitable liability of the vendor's assignee to the covenant for production, on the ground of notice. The better opinion seems to be, that the assignee with notice of the covenant would in equity be bound to a specific performance of it. And this doctrine would appear to derive some trifling degree of support from an observation which fell from Sir John Leach in a recent judgment (d). " Turing's covenant to produce (said his Honor) does not run with the land ; nor is it pretended that Slade (the purchaser of Thring's share) had notice of that cove- (c) Barclay v. Raine, 1 Sim. & Stu. 449. (d) Ibid. 455. Q 2 22S Of Covenants for Production . [Part III. nant." This would appear to imply a notion in the mind of the Vice- Chancellor, that the circumstance of notice would effect a difference. Much uncer- tainty, however, prevails on the subject. Should notice be of any service, it seems advisable, in order to prevent an assign of the covenantor from taking without notice, that a memorandum of such deed of covenant for production be endorsed on the deed of conveyance to the covenantor. These inconveniences have occasioned a practice, equally beneficial to both covenantor and covenantee, by means of which the chain of covenants for pro- duction continues unbroken, the covenantee is still enabled to enforce a specific execution, and at the same time the covenantor, when he no longer retains the power of executing his covenant, is absolved from the charge of observing its performance. The prac- tice is for the covenantor, on a sale of the estate in respect of which he possesses the deeds, to procure the purchaser to enter into original covenants for production with the owners of the other parts of the property, similar to that which they hold from the vendor. And with this view it is customary to superadd to the common covenant for production a provision for determining the liability of the cove- nantor in case he should, on a sale and delivery of the deeds to a purchaser, procure such purchaser to enter into a like covenant for production. It frequently happens that the owner of an estate, having a covenant for production of the title deeds, disposes of the land in parcels to distinct purchasers; Chap. VIII.] Of Covenants for Production. 229 but objections have been urged to the competency of the vendees of these portions to prosecute separate ac- tions against the covenantor; as he might without his consent be exposed to a multiplicity of suits, in pro- portion to the number of parts into which the cove- nantee might choose to subdivide* the estate. A de- cision in the King's Bench appears to have set the question at rest ; the divisibility of a covenant having been there so far admitted, as to enable the assignee of the reversion of part of the demised premises to recover in an action of covenant against the lessee for a breach in not repairing (e). And a correspond- ing action is maintainable by the assignee of part of the premises from the lessee against the lessor or his assignee (f). The only means of obviating any diffi- culty, if doubt should still exist, is to procure the covenantor to enter into a new covenant with each of the vendees of the subdivided parcels for production in the usual way. Assignees of bankrupts, like other vendors, where the title deeds are not to be delivered to a purchaser, are bound to covenant to produce them ; but their covenant should be confined to the time of their con- tinuance as assignees (g). If, however, the covenant is so confined, the purchaser should have some secu- rity that the person who shall ultimately become en- titled to the custody of the deeds will covenant for (e)Twynamv.Pickard,2 Barn. 575. Co. Lit. 385, a. & Aid. 105. Congham v. King, (/) Palmer v. Edwards, 1 Cro. Car. 221 ; S. C. nom. Co- Dougl. 187, n. nan v. Remise, W. Jo. 245. (g) Ex parte Stuart, 2 Rose, Stevenson v. Lambard, 2 East, 215 230 Of Covenants for Production. [Part III. their production. The proper course seems to be for the assignees' covenant to be made determinable in case they shall procure the person to whom they shall deliver the deeds to enter into a similar cove- nant with the purchaser (Ji) . Without a covenant for the production of the deeds, where they are retained by another, a pur- chaser is not compellable to complete his purchase. A very late case brought this question before the court. A large portion of certain hereditaments was sold to J. Thring; and about the same time, or soon after, other part was sold to G. Barclay, the father of the plaintiffs, under whom they claimed. J. Thring, to whom the title deeds were delivered, covenanted with his vendors to produce the deeds at their re- quest, for such purposes as should be required by them, their heirs, executors, administrators and as- signs. No deed of covenant was given to G. Barclay for production ; but he was furnished with an attested copy of the above deed of covenant. Thring sold to Slade, and part of the purchase money remaining on mortgage, the title deeds were lodged with, and were still in Turing's hands. The original deed of cove- nant was lost, and Slade refused to execute another. Thring, however, executed a deed, acknowledging his execution of the original deed, and that the deeds were in his possession, and also covenanted for their production whilst he should continue mortgagee. The defendant when he agreed to purchase from the plain- tiffs, had no notice that they could not deliver the (A) Sugd. Vend, and Purch. 449. 6th edit. Chap. VJI I .] Of Covenants for Production . 23 1 original title deeds to him, or that he was to have a deed of covenant for the production of them, or that they related to other estates. The question for the opinion of the court was, whether, without such a deed of covenant from Slade, the defendant ought to be called upon to complete his purchase. The Vice- Chancellor said, " A Court of Equity never compels a purchaser to take without the title deeds, unless he has a covenant to produce them ; and a right in equity to compel the production of the deeds, even if it existed, would be no answer. But the equity of the purchaser in the present case would be highly questionable. Thring's covenant to produce does not run with the land ; nor is it pretended that Slade had notice of that covenant ; and Slade, like every other proprietor, has a material interest against the expo- sure of his title deeds" (i). It is very questionable whether a purchaser, under his vendor's covenant for further assurance, can com- pel him to enter into a covenant for the production of the title deeds retained in his custody (k). As these covenants are constructive notice of en- cumbrances, and after a long interval lead to an inquiry for deeds, &c. which have been converted into dust or ashes, the safe practice is, and it is the general practice in modern times, to take the cove- nant in a separate instrument; and cases exist in (i) Barclay v. Raine, 1 Sim. (A) Fain v. Ayers, 2 Sim. & & Stu. 449. Shore v. Collett, Stu. 533 ; 1 Russ. 259, n. Hal- Coop. 234. Berry v. Young, 2 lett v. Middleton, 1 Russ. 243. Esp. N. P. C. 640, n. See post, Ch. XL sect. v. 232 Of Covenants for Production. [Part III. which it is prudent to take several deeds of cove- nant for the production of the evidence of title ; each deed containing a different series, so that one of the covenants may be given over to a future purchaser, without any notice of deeds, which had better, even for the sake of such purchaser, be kept out of view (/). The expense of a covenant for production, where effected by a distinct instrument, must be defrayed, it appears, by the purchaser (m); but the vendor must bear the charge, when the covenant is comprised in the deed of conveyance to the vendee (w). It may be mentioned, that where a purchaser of a small part of an estate takes a covenant from the vendor to produce the title deeds whenever it shall be necessary ; and the deeds afterwards come into the vendee's possession, on his taking a mortgage of the other part of the estate; on an assignment by him of the mortgage to a third person, not mentioning the deeds, such third person cannot maintain trover against him for them : to entitle the plaintiff to recover, he should have a better right to the deeds than the defendant (0). (0 1 Prest. Abst. 28. N. P. C. 640, n. (m) 1 Bart. Prec. 88. Introd. (0) Yea v. Field, 2 Term Rep. 3d ed. 708. (n) Berry v. Young, 2 Esp. 233 CHAPTER THE NINTH. OF COVENANTS FOR RENEWAL. The principal question arising on covenants of this I. Of their kind has been, how far the instrument evidenced the j?"* intention of the parties to contract for a limited or a perpetual renewal. Although some of the cases here- after cited were decided in courts of equity, yet, it is to be recollected, the judges presiding there were bound to put the same construction upon the instru- ments under consideration as they would receive at law. From all of these cases we may collect, that the courts, in England (a) at least, lean against con- (a) It is well known, that in Ireland they are so fixed in the habit of leases perpetually renew- able, as to have caused a kind of local prejudice in favor of pre- suming an intention of perpetual renewal, where the words of a covenant to renew give any open- ing for such a construction. See Mr. Hargrave's preparatory argu- ment in Iggulden v. May, 3 Har. Juris. Exerc. 240 ; S. C. 9 Ves. 329, argo. Cooke v. Booth, Cowp. 823. Also The Earl of In- chiquin v. Burncll, 3 Ridg. P. C. 376, and the argument of Mr. Hargrave for the Earl on his ap- peal to the Irish House of Lords in that case ; 1 Hargr. Jur. Arg. 415, 6 ; and 3 Hargr. Jurisc. Exerc. 182, 3. in which the fol- lowing Irish cases connected with this subject are noticed ; Sweet v. Anderson, 2 Bro. P. C. 430 ; S. C. Toml. Ed. vol.ii. p. 256. Earl of Ross v. Worsop, 4 Bro. P. C. 411 ; S. C. Toml. Ed. vol. i. p. 281. Magenis v. Ma- genis. — Pendred v. Griffith, 4 Bro. P. C. 512 ; S. C. Toml. 234 Of Covenants for Renewal. [Part III . struing a covenant to be for a perpetual renewal, unless it is perfectly clear that such was the meaning of the covenant (A). Where that intention is ap- parent the courts feel themselves under the necessity of carrying it into execution. Thus, where a lease was made for twenty-one years of a corn-mill, to be repaired by the tenant, and there was no covenant on the part of the lessee to pay a fine, but a covenant was contained therein on the part of the lessor, that he would, at any time before the last six Ed. vol. i.p. 314. Charles v. Row- ley, 2 Bro. P. C. Toml. Ed. 485. Kane v. Hamilton, 1 Ridg. P. C. 180. Bateman v. Murray, 1 Ridg. P. C. 187. Duchess of Chandos v. Brownlow, 2 Ridg. P. C. 345. The case of Bateman v. Murray occasioned the passing of the Irish Tenantry Act, 19 & 20 Geo. 3. c. 30., by which it is provided, that in all cases of mere neglect, where no fraud appears to have been intended, no derelic- tion on the part of the tenant, by neglecting or refusing to renew after the landlord has demanded the fine, courts of equity shall relieve, upon an adequate com- pensation being made. See like- wise Davis v. Oliver, 1 Ridg. P. C. 1. Jackson v. Saunders, 1 Scho. & Lef. 443 ; S. C. 2 Dow, 437. Lennon v. Napper, 2 Scho. & Lef. 682. As these and other cases decided in Ireland proceeded on what Lord Lifford called a local equity, or as it has been sometimes termed, the old equity of the kingdom, to notice them more particularly in this work has been considered unne- cessary. For an account of the history of renewable leases, and the principles on which renewals have been decreed in Ireland, the reader may refer to Boyle v. Ly- saght, 1 Ridg. P. C. 384.401,2. Magrath v. Muskerry, 1 Ridg. P. C. 469. Calvert v. Gason, 2 Scho. & Lef. 561 . Keating v. Sparrow, lBall&B. 367. O'Neil v. Jones, 1 Ridg. P. C. 170. (b) Taylor v. Stibbert, 2 Ves. jun. 443. Baynham v. Guy's Hospital, 3 Ves. 298. Moore v. Foley, 6 Ves. 237. Iggulden v. May, 9 Ves. 334. Maxwell v.Ward, 11 Price, 13; S. C. 13 Price, 674. Chap. IX.] Of Covenants for Renewal. 235 months, grant such further lease as should by the les- see, his executors, &c. be desired, without any fine, and under the same rents and covenants only as in the said lease then granted ; the Court of Exchequer were of opinion, that under the words the same rents and covenants the covenant for renewal ought to be inserted in a renewed lease, and on appeal to the House of Lords the decree was affirmed (c). The ground on which this case was decided appears to have been, that the covenant being to grant such further lease as the lessee should desire, it was left to the lessee himself to say what interest he would require to be granted to him, without any restriction or limitation, except that no covenant should be in- troduced not contained in the original lease. Nor was it unfair to infer, that he who might have asked a lease for any number of years, did not exceed what was intended by requiring one with a covenant to renew (d). So when in a lease for three lives, at the yearly rent of 43s. 8d., the tenant covenanted, at the death of any of the lives which should first happen, to pay to the lessor, his heirs or assigns, within twelve months next ensuing such death, the sum of 68/. in the name of a fine, for every life added or re- newed, from time to time ; and the lessor covenanted that he would, for the consideration of the said sum of 68/., to be paid to him, his heirs, &c, in the name of a fine, for adding one life to the remain- (c) Bridges v.Hitchcock, 1 Bro. Crew, 3 Atk. 88, 9. P. C. 522 ; S. C. Toml. edit. (d) See 7 East, 245, per Lord vol. v. p. 6. Cited in Furnival v. Ellenborough. 236 Of Covenants for Renewal. [Part III. ing lives afore-mentioned, execute one or more lease or leases under the same rent and covenants as were expressed in the said indenture, and so continue the renewing of such lease or leases to the lessee or his assigns, paying as aforesaid to the said lessor, his heirs or assigns, the sum of 68/. for every life so added or renewed as aforesaid, from time to time, according to the true intent and meaning of the said indenture ; Lord Hardwicke was of opinion, that the plaintiff was entitled to have the like cove- nants inserted upon every renewal, as well upon the death of the new lives, as upon the death of the old ; the words and so to continue renewing mch lease or leases, 8$c., not meaning barely con- tinuing a new life, but continuing and filling up the estate from time to time ; and that the words for every life so added as aforesaid, meant any of the lives in the future leases ; for the words were general that he would grant it for such life as aforesaid, which would comprehend the whole within this form of expression (e). A covenant for perpetual renewal, however, can only be introduced on the ground that a clear in- tention for such perpetual renewal can be discovered. And although the parties might possibly have in- tended a perpetual renewal, yet if it is not so ex- pressed, nor are there any general words, such as from time to time, from which such an intention can be collected, a perpetual renewal will not be decreed. (c) Furnival v. Crew, 3 Atk. 83. Chap. IX.] Of Covenants for Renewal. 237 Formerly an opinion prevailed, that a covenant for renewal, under the same rent, covenants, and con- ditions, involved a liability to renew perpetually ; but it is now decidedly ascertained, that those words will not, in the absence of more positive stipulation, have that operation ; but will be construed to amount to a contract, not for a perpetuity of leases, but for a single lease only(/). It was so determined, in a case before L. C. Thurlow, where the covenant was, that the lessor would, at the end or determination of the term of twenty-one years, execute a new lease of the premises for the further term of seven years, to com- mence from the end of the said twenty-one years, subject to the same rents, and pursuant to the same exceptions, covenants, reservations, conditions, and agreements, in all respects, as were in and by the in- denture of lease mentioned and expressed, in case the plaintiff should desire the same, and give twelve months' notice ; but his Lordship decreed, that the lease should not contain a covenant for future re- newal ; as he had not an idea that the inten- tion of the lessor was to renew the covenant for renewal, or that it could be so construed in a court of equity (g). Sir William Grant likewise pronounced a similar decree (A). A lease for lives had been executed by (f) Richardson v. Sydenham, which contains a more ample re- 2 Vern. 447 ; S. C. 1 Eq. Ca. port of the judgment. Russell Ab. 47. Moore v. Foley, 6 Ves. v. Darwin, cor. Lord Camden, C, 237. 2 Bro. C. C. 639, note. (g) Tritton v. Foote, 2 Bro. (h) Moore v. Foley, 6 Ves. C. C. 636; S. C. 2 Cox, 174, 232. 238 Of Covenants fur Renewal. [Part III. Lord Foley, which contained a covenant on his part, that when any one of the lives should happen to die, he would, on receipt of 42/. 6s., and the surrender of the former lease, grant unto the survivors and such other person as they should nominate, the premises; to hold unto the survivor and such other person for their natural and respective lives, successively and not jointly, at, for, and under, the like rent, covenants, and conditions, as were therein reserved and con- tained. And moreover it was mutually granted and agreed, that in such grant to be made, it should be covenanted and agreed, that when and as often as any one of the said three persons for whose lives the said grant should be made, should happen to die, then the survivors of them should, within one year after the death of such one person, pay to Lord Foley, his heirs, or assigns, the sum of 42/. 6s., and sur- render the grant then in being ; and Lord Foley, his heirs and assigns, should, upon the payment of the said money, and surrendering up of such grant, at the request and charges of the said survivors, execute another grant unto the said survivors, for and during the lives of such two of the said persons as should be then living, and for the life of such other person as the said survivors should nominate, under the like rent, covenants, provisoes, and conditions as were therein contained. The lease then made provision for the event of two of the lives falling within the year, and contained an agreement on the part of Lord Foley to grant a new lease for the life of the survivor and two such other persons as the survivor might nominate, at, for, and under, the like rents, covenants, and conditions, as were therein mentioned and contained Chap. IX.] Of Covenants for Renewal . 239 An exception taken by the defendant to the master's report approving a lease containing a covenant for perpetual renewal, was allowed by the Master of the Rolls, he being clearly of opinion that this could not be construed a covenant for perpetual renewal ; for said he, "The first agreement is, that this stipulation shall be inserted in such grant, that is, the grant that was to be made upon the dropping of the first life ; and con- sequently the introduction of this stipulation into that would have the effect of entitling the lessee to a renewal upon the death of every one of the three persons comprised in the second grant. I lay out of consideration the first lease. The second will become in the nature of an original lease; when there is a grant for three lives with this stipu- lation to be introduced into it ; that when any one of the three dies, a new lease shall be granted for the lives of the survivors and a new life. Does that carry it further than the lives of the three persons whose names shall be contained in that second grant ? I am of opinion it does not. There is no stipulation for any ulterior event, and there are no general words. The words are not from time to time as in Furnival v. Crew, upon which words Lord Hardwicke laid great stress, as amounting to an obligation to fill up lives upon the dropping at any time (i); but this covenant extends no further than to introduce this very stipu- lation into this one new grant ; and as to the lives only to be contained in that grant. — The covenant (i) It would, however, appear would inclnde the covenant for that Lord Hardwicke thought, in renewal. 3 Atk. 86. See also this case, that the words " under the opinion of Mr. Justice Buller the same rents and covenants" in Cooke v. Booth, '2 Cowp. 823. 240 Of Covenants for Renewal . [Part III. is specific to introduce it into such grant only. It is identified and ascertained by what is stipulated im- mediately before, that it is the grant upon the drop- ping of the first life ; and further, that it extends to the three lives to be filled up, and no others. There is not a word expressing that it was the intention of the parties that it should be renewable for ever. I am perfectly at a loss to discover a ground for that intention, as they have expressed it. — There being- no clear words in this case, nor any words relative to perpetual renewal ; but the parties themselves hav- ing limited it, the question is, whether the proviso that the renewal shall be under the same rents, co- venants, and conditions as the first lease, shall in the absence of more positive stipulation amount to a per- petual renewal. Upon Tritton v. Foote, and Rus- sell v. Darwin, I am bound to hold that a covenant for renewal under the same covenants does not in- clude the covenant to renew, but that it means only a second lease, not a perpetuity of leases." (Jt). By the intention, therefore, and not by the acts of the parties, must the construction of these covenants (k) See the same point in Hyde Exch. Chamb. 2 New Rep. 449, v. Skinner, 2 P. Wins. 196. where the judgment of the K. B. Another report of this case is to was affirmed. Harnett v. Yeild- be found in 1 Hargr. Jur. Arg. ing, 2 Scho. & Lef. 555. Dow- 425, and 3 Hargr. Jurisc. Exerc. ling v. Mill, 1 Mad. 541. Davis 193, cited from Mr. Melmoth's v. Taylors' Company, 1 Hargr. MS. reports. Baynham v. Guy's Jur. Arg. 427 ; 3 Hargr. Jurisc. Hospital, 3 Ves. 295. Iggulden Exerc. 195. Betes worth v. Dean v. May, 9 Ves. 330 ; S. C. 7 and Chapter of St. Paul's &c, East, 237 ; S. C. in error in the Ibid. Chap. IX.] Of Covenants for Renewal. 241 be governed : the fact of repeated renewals having been made cannot now be admitted to guide the decision as to a perpetual renewal on the one side or the other. An adjudication, indeed, of an opposite complexion was made in the Court of King's Bench during the time of Lord Mansfield (/). A case was sent from Chancery for the opinion of the K. B., and stated, that Robert Booth by indenture demised cer- tain premises to one Otho Cooke, for the lives of the said Otho Cooke, Elizabeth Cooke, and Robert Cooke ; and the said Robert Booth thereby cove- nanted as follows : " that if the said Otho Cooke, his heirs and assigns, shall be minded, at the decease of the said O. C, E. C, and R. C, or any of them, to sur- render this present indenture, and take a new lease of the said premises, and thereby add one new life to the then two in being, in lieu of the life so dying, then the said R.B., his heirs, &c. upon request, on such surrender of the lease then in being, and upon pay- ment of one broad piece of gold of twenty-two shil- lings value, or twenty-two shillings in silver to the said R. B., his heirs, &c. for every life so to be added in lieu of the life of every of them so dying, and at the proper costs of the said Otho, without de- manding any further fine for the same, shall and will grant and execute unto the said Otho Cooke, his heirs, &c. a new lease for the lives of the two persons named in the former lease who shall be then living, and of such other person as the said Otho Cooke, his heirs or assigns, shall nominate and appoint, in lieu of (/) Cooke v. Booth, Cowp. 819. R 242 Of Covenants for Renewal. [Part III. the person named in the preceding lease, as the same shall respectively happen to die, under the before- mentioned annual rent, and the same covenants therein contained." The case also stated, that there had been successive renewals containing the same clause of renewal, from the time of a former lease granted by the ancestor of R. Booth down to the date of the lease in question. The court were of opinion that R. Booth and his ancestors had put their own con- struction on the covenant by the frequent renewals, in all of which the covenant for renewal had been uniformly repeated, and that the parties, by their own acts, had construed this to be a covenant for perpetual renewal. A doctrine so utterly subversive of the fundamen- tal principles of evidence was not likely to pass uncanvassed ; and we consequently find that the authority of this case, so far as it relates to the admissibility of the acts of the parties to influence the construction of the covenant, has been repeatedly impugned. The opinion of the Master of the Rolls (Sir R. P. Arden) in Baynham v. Guy's Hospital (m), and Eaton v. Lyon (ii), was vehemently opposed to it. "I strongly protest (said his Honor, in the former case,) against the argument used by the learned Judges in Cooke v. Booth, as to construing a legal instrument by the equivocal acts of the parties, and their understanding upon it ; which I will never allow to affect my mind. That case was sent to law by Lord Bathurst. The learned Judges thought fit (ro) 3 Ves. 298. (») 3 Ves. 694. Chap. IX.] Of Covenants for Renewal '. 243 to return an answer to the Chancellor, that the legal effect was a perpetual renewal, upon the ground that, by voluntary acts, which the parties might or might not have done, the parties themselves had put a construction upon it. Mr. Justice Willes stated that as his only ground. Lord Mansfield made it his chief ground ; but that ground was disapproved by Lord Thurlow, and is, I think, totally unfounded. I never will construe a covenant so. I never was more amazed ; and Mr. Justice Wilson, who argued it with me, was much astonished at it. When it came back, Lord Bathurst not having retained the Great Seal long enough for it to come again before him, it came before Lord Thurlow, who said, that, sitting as Chancellor, when he asked the opinion of a court of law, whatever his own opinion might be, he was bound by that of the court of law (o) ; there- fore he decreed a renewal, but said, he should be very glad if Mr. Booth would carry it to a superior tribunal. We had a consultation, and I wrote to Mr. Booth upon it ; but he being only tenant for life re- fused to appeal." (o) L. C. B. Richards, in the court of law. In a very recent late case of Maxwell v. Ward, 1 1 case, in which Lord Eldon called Price, 18; S. C. also 13 Price, in Mr. Justice Abbott and myself, 674. alluding to this observation of we reviewed the opinion of the Lord Thurlow, said, " Certainly Court of Common Pleas, and the that is not in the present day result was that we over-ruled it." considered to be the effect of the The case here alluded to by his opinion of courts of law on cases Lordship is that of Prebble and sent for their judgment. Lord others v. Boghurst and others, Chancellor Eldon certainly did reported in 7 Taunt. 538 ; and not consider himself bound by 1 Swanst. 309. 580. the certificate of the judges of a R 2 244 Of Covenants for Renewal. [Part III. Sir William Grant (p), Lord Eldon (y), and Lord Ellenborough (/•), have also avowed their disappro- bation of the doctrine ; and when Iggulden v. May came before the Exchequer Chamber, in error (s), Sir James Mansfield, C. J., in giving the judgment of the court, expressed their opinion in the following terms : " It is true that similar renewals were allowed to operate in Cooke v. Booth ; but we think that was the first time that the acts of the parties to a deed were ever made use of in a court of law to assist the construction of a deed. Suppose the original lessor to have declared in the presence of fifty witnesses, that he intended to bind himself by the lease to a perpetual renewal ; his declaration could not have been allowed to alter the construction of the lease it- self. If so, why should the subsequent renewals, which are not evidence either so strong or so un- equivocal as the declaration of the lessor, be allowed to alter the construction ? That case has been im- peached on all occasions, and in which the Court of King's Bench were misled by the renewals stated in the case sent from the Court of Chancery." The case of Cooke v. Booth, then, on the point in question, stands clearly overruled (t). It may be remarked, that a covenant for renewal in a lease is not inconsistent with a covenant to let and manage to the best advantage, with reference to (p) In Moore v. Foley, 6 Ves. (r) In S. C. 7 East, 244, 5. 237. (s) 2 New Rep. 449. (q) In Iggulden v. May, 9 Ves. (t) See also Balfour v. Welland, 333. 16 Ves. 156. ance. Chap. IX.] Of Covenants for Renewal. 245 the subject, a trust for creditors ; for trusts of this kind are generally short. Creditors hardly ever ex- pect that such a trust as this should endure for more than twenty-one years. It is their interest to get the highest rent for twenty-one years ; and at the grant- ing of the lease they look to the circumstance of present advantage, and are not to be supposed to look to a subsequent period ; they would reject a proposal to let the estate at a lower rent without a covenant for renewal ; and it cannot be considered a prejudicial covenant in consequence of the present increased value of the premises (u). Any act of a party by which he absolutely inca- n.of breach pacitates himself to perform his covenant is equiva- and perform- lent to an actual breach. Where, then, a lessor covenanted, that if the lessee for twenty-one years would surrender his lease at any time during the term, he would grant him a new lease, and the lessor afterwards levied a fine, and granted a lease of the same premises to the conuzee for eighty years, this was held to be a breach ; and, in an action of debt on a bond for the performance of the covenant, the lessee was released from the necessity of showing that he offered to surrender, the maxim being- Lex neminem cogit ad vana seu inutilia per agenda (v). Where a term of ninety-nine years, determinable on the deaths of three persons, was assigned to trus- ts Kirkham v. Chadwick, 13 452; 2 And. 18; Poph. 109; Ves. 547. Jenk. Cent. 256. Ford v. Tiley, (v) Main's case, 5 Co. 20, b. ; 6 Barn. & Cres. 325. S. C. Cro. Eliz, 450. 479 ; Mo. 24G Of Covenants for Renewal. [Part III. tees upon trust for J. S. for life ; and J. S. cove- nanted, as often as any of the persons on whose lives the premises were or should be held should die, to use his utmost endeavours to renew the same, by purchasing of the lords of the fee new lives or a new life therein, in the room of such lives or life as should die as aforesaid, &c. ; a renewal for his own life was resolved to be a good performance of the covenant ; there being fair ground for him to insert his own life, that he might avoid the burthen of again renewing, on the death of the person he should put in ; espe- cially as the parties had neglected to prevent his so doing by any restrictive provision (V). But where the covenant was, that the party would use his en- deavours to procure new leases to be granted by the lords of the fee to A. and B., the procuring them to be granted to himself, and offering an assignment to A. and B., did not amount to a performance (#). III. Of cove- Hospitals and other charitable bodies, restrained newal bv ^ ^Y their constitution from granting leases for a longer charitable period than twenty-one years, can no more, by the foundations, • , r r . . &c< circuitous mode of covenanting lor renewal, invest a lessee with an interest exceeding the prescribed limits, than originally grant a lease for the excessive term (j/). Where, therefore, the founder of a hospital directed that no leases should be made for any longer term than twenty-one years, and the hospital made (w) Scudamore v. Stratton, 1 Hemsworth Hospital, 14Ves. 324. Bos. & Pul. 455. See likewise Watson v. Hinsworth 0) Ibid. See Clarke v. Pep- Hospital, 2 Vern. 596 ; S. C. 1 pin, 2 Vent. 99. Eq. Ca. Ab. 100. pi. 8. (y) Watson v. Master, &c. of Chap. IX.] Of Covenants for Renewal. 247 a lease for twenty-one years, with a covenant by re- newal to make it up sixty years, the covenant, being deemed equally prejudicial to the hospital as a lease for sixty years, was decreed not to be binding in equity (z). A specific execution of such covenants cannot, in consequence, be enforced. Next, as to leases with covenants for renewal by ecclesiastical and collegiate persons. The restraining statute (a) is altered, so far as concerns leases made by spiritual, ecclesiastical, and collegiate persons of houses in cities, &c, by an act of the 14th of Elizabeth, c. ll.(#), which autho- rizes the making of leases, not exceeding the term of forty years, under certain restrictions, of any houses or grounds appertaining thereto, situate in any city, borough, town corporate, or market-town, or the suburbs thereof ; so that such house be not the capital or dwelling-house used for the habitation of such persons, nor have ground to the same belong- ing above the quantity often acres. By the 18th of Eliz. c. 11. (c), after reciting that sithence the making of the 13th of Eliz. c. 10., divers of the said ecclesiastical and spiritual persons, and others having spiritual or ecclesiastical livings, had from time to time made leases for twenty-one years or three lives, long before the expiration of the former (z) Lydiatt v. Foach, 2 Vern. ville v. Chapman, 1 Bro. C.C. 61. 410. Taylor v. Dulwich Hos- (a) 13 Eliz. c. 10. pital, 1 P. Wms. 655; S. C. 2 (6) 14 Eliz. c. 11. ss. 17. 19. Eq.Ca. Ab. 198. pl.2. Somer- (c) 18 Eliz. c. 1 1. s. 2. 248 Of Covenants fur Renewal. [Part III. years, contrary to the true meaning and intent of the said statute, it was enacted, that all leases thereafter to be made by any of the said spiritual, ecclesiastical, or collegiate persons, or others, of any their said ec- clesiastical, spiritual, or collegiate lands, tenements, or hereditaments, whereof any former lease for years should be in being, not to be expired, surrendered, or ended, within three years next after the making of any such new lease, should be void. And it was also enacted (//), that all and every bond and covenant whatsoever thereafter to be made for renewing or making of any lease or leases, contrary to the true intent of the act, or of the 13 Eliz. c. 10. should be utterly void. This act refers to the 13th of Eliz. c. 10. exclusively ; and defeats such covenants for renewing leases only as are contrary to its own, and the provi- sions of that statute. The 14th of Eliz. remains un- disturbed by its enactments. It has therefore been decided, that covenants by spiritual persons for re- newing leases of houses, &c. in cities or towns, &c, are not prohibited by the 18th of Eliz. c. 11. (e). IV.Ofspeci- No doubt is at the present day entertained, that, ance? r ° rm ' on sufficient evidence of intention, a specific perform- ance of a covenant for perpetual renewal will be de- creed. It is a covenant to make an estate in land, and binds the lands in a court of equity, and a suit in that court is most advantageous, because there the thing itself can be obtained, which is a more ade- quate remedy than mere damages, which alone a court of law can give (/). (d) Sect. 3. (/) Furnival v. Crew, 3 Atk. (e) Crane v. Taylor, Hob. 269. 87. Iggulden v. May, 9 Ves. Chap. IX.] Of Covenants for Renewal. 249 Lord Thurlow (£•) almost brought himself to a notion, that any man who entered into such a cove- nant, must be taken so little to understand the nature of a bargain, and of property, that the court ought not to execute it by a specific performance ; yet he never got so far in judgment (Ji). But from this po- sition Lord Eldon has expressed his dissent ; and it has now been so long held that such a covenant ought to be carried into execution, that, whether the judgment was originally right or wrong, it is so covered and sanctioned by decision, that it would be infinitely too dangerous to interpose a new rule in such cases (J). The defendant holding under a corporation, of which he was a member, and in the habit of obtain- ing renewals on favourable terms, demised to the plaintiff at a certain rent, with a covenant to renew at the same rent as often as the corporation should renew to him. The corporation raised the rent pay- able by the defendant, who refused to renew to the plaintiff at the old rent ; and on his refusing to ad- vance his rent, the defendant brought an ejectment : to restrain proceedings the plaintiff filed this bill for 334. Harnett v. Yeilding,2 Scho. but more fully set out in 3 Hargr. & Lef. 553, 5. Betesworth v. Jurisc. Exerc. 206, 7. 237 ; and Dean & Chapter of St. Paul's, 2 1 Hargr. Jur. Arg. 438, under Eq. Ca. Ab. 26 ; pi. 30 ; S. C. the name of Reece v. Lord Dacre. 3 Bro. P. C. 389; S. C. Toml. (h) Per Lord Eldon, 9 Ves. ed. vol. i. p. 240. 330. (g) Tritton v. Foote, 2 Bro. C. . (i) Willan v. Willan, 16 Ves. C. 636; S.C.2Cox, 174. Rees 84. v. Lord Dacre, cited 9 Ves. 332. 250 Of Covenants for Renewal. [Part III. an injunction. The Lord Chancellor granted the injunction, considering the defendant bound to re- new to the plaintiff' on the old terms, unless he chose to abandon the property, and allow the plaintiff to stand in his place for the renewal from the cor- poration ; but otherwise he was bound specifically to execute his covenant for renewal on the terms on which he had covenanted to renew (k). And in this place may be noticed, that where the covenant is to renew in general terms, without speci- fying the particular period for which the renewal is to be made (/) ; or, to grant such further lease as the lessee, his executors, &Ci shall desire (?«); a demand of a new lease for an excessive term, fifty years for instance, will not be complied with ; but the cove- nant will receive a reasonable construction, and, the usual term of leasing being twenty-one years, equity will decree a lease of that duration, or for such shorter term as the lessee shall elect. With respect to the persons who may insist on this right of renewal, it is to be observed, that if a cove- nant be to renew a lease on the request of the lessee (without mentioning his executors, &c.) within the term, and the lessee die, and his executors within (k) Evans v. Walshe, 2 Scho. it appears that the covenant was & Lef. 419. to renew " for such further term (I) Hydev. Skinner, 2 P. Wins, as the lessee should then desire." 196. According to Mr. Mel- (m) Bridges v. Hitchcock, 1 moth's report of this case, set Bro. P. C. 522 ; S. C. Toml. ed. forth in 1 Hargr. Jur. Arg. 426; vol. v. p. 6. and 3 Hargr. Juiisc. Exerc. 193, Chap. IX.] Of Covenants for Renewal. 2.31 the prescribed period request the renewal, and the lessor refuse ; as the executors of every person are implied in himself and bound without being named, they are entitled to the renewal., it being immaterial whether the demand be made by the testator or the executors (w). And as it is a covenant running with the land, the assignee of the term may avail himself of all benefit derivable under the contract (0), against the assignee of the reversion by virtue of the statute of 32 Hen 8. c. 34. (jp). A breach can also be as- signed at law against the executor or heir of the lessor (0). Assignees under a commission of bankruptcy are not entitled to a specific performance of a covenant for renewal (r), unless, it seems, they should choose to take the house and be tenants, and to enter into co- venants (s) ; but if the assignees assign over, as the covenant runs with the land, there is no just ground (n) Hyde v. Skinner, 2 P. Wins. 196. Chapman v. Dal- ton, 1 Plowd. 286. (0) Isteed v. Stonely, 1 And. 82. Anon. semb. Spencer's case, Mo. 159. pi. 300. Skerne'scase, Mo. 27. Furnival v. Crew, 3 Atk. 88. Roe dem. Bamford v. Hayley, 12 East, 469. Vernon v. Smith, 5 Barn. & Aid. 11. (p) Ibid. Tanner v. Florence, 1 Ch. Ca. 260. but qu. the correctness of this case as to the liability of the assignee of the reversion at common law. (q) Furnival v. Crew, 3 Atk. 87. (r) Drake v. Mayor of Exeter, 1 Ch. Ca. 71 ; S. C. 1 Eq. Ca. Ab. 53. pi. 1. 2 Freem. 183. Cited in Vandenanker v. Des- brough, 2 Vern. 97. See also Moyses v. Little, 2 Vern. 194 ; S. C. Eq. Ca. Ab. 53. pi. 4. Willingham v. Joyce, 3 Ves. 168. Brooke v. Hewitt, 3 Ves. 255. Weatherall v. Geering, 12 Ves. 504. (s) Willingham v. Joyce, 3 Ves. 169. 252 Of Covenants for Renewal. [Part III. for supposing that equity would refuse to assist such second assignee. The insolvency of the tenant also seems to be a sufficient cause for rejecting his claim to renewal. The precise question has never been determined ; but reasonable analogy would fairly support the position. Lord Eldon has declared that insolvency admitted, and not cleared away, is a weighty objection to a specific performance of an agreement for a lease ; the party seeking in equity an execution beyond the law. I shall therefore only say, (continued his lordship,) that at the hearing in general cases it would have considerable weight with me ; in some cases more than in others. If the tenant undertakes for nothing but the payment of rent, it must be appreciated accordingly. If beyond that he undertakes for con- siderable expenditure upon the premises, before he is to be placed in the relation of a lessee, that is di- rectly connected as a most important circumstance with the fact of solvency or insolvency. Therefore, where very considerable repairs are to be done by the lessee, his solvency is to be looked to to that extent. — And in the case before him, where between the treaty for renewal and the completion of the con- tract the lessee became insolvent, and paid a compo- sition of seven shillings in the pound to his creditors, and among them to the landlord for a debt due for goods sold, the Lord Chancellor dissolved an injunc- tion to restrain the landlord from proceeding in an ac- tion of ejectment (t). (t) Buckland v. Hall, 8 Ves. 92. See also Willingham v. Joyce, Chap. IX.] Of Covenants for Renewal. 253 A distinction, with regard to insolvency, exists between a purchase and a lease. In the former in- stance, the bill for specific performance tenders pay- ment of the purchase money, the latter is very much otherwise ; and the court does not forget the habit of dealing among mankind with regard to the relation of landlord and tenant. The question, however, as to the effect of insolvency on the specific performance of the contract, was considered of too much conse- quence to be decided on motion (u). In one case where a clause of re-entry was con- tained in the lease, and the value of the premises had been doubled by the improvements of the original lease, Lord Macclesfield was of opinion, that such clause of re-entry was a sufficient answer to an ob- jection, that the executors of the covenantee for re- newal might be insolvent tenants, and such as the covenantors would not care to trust (v). A man who has committed felony (w), or a tenant who has committed waste, treated the land in an unhusbandlike manner, and been guilty of various breaches of covenant, for which the lessor has a right of re-entry, cannot, it seems, obtain a decree for the specific performance of a covenant for renewal (^). sup. Boardman v. Mostyn, 6 (v) Hyde v. Skinner, 2 P. Wins- Ves. 467. Feathers tonhaugh v. 196. Fenwick, 17 Ves. 313. De (w) Willingham v. Joyce, 3 Minckwitz v. Udney, 16 Ves. Ves. 169. 466. (x) Hill v. Barclay, 18 Ves. (m) Buckland v. Hall, sup. 63. Gourlay v. The Duke of O'Herlihy v. Hedges, 1 Scho. & Somerset, 1 Ves. & B. 68. Lef. 123. 254 Of Covenants for Renewal. [Part III. But where there was an agreement for a lease, pro- vided the intended lessee, his executors, adminis- trators or assigns, should request the same for the special purpose only of carrying on his or their trade, or for the special purpose of residence of the lessee, his executors, administrators or assigns ; a mere con- ditional agreement by the intended lessee to grant, if he could, an underlease to a third party, was not deemed such a forfeiture as to take away his right to a specific performance (3/). In order to enforce a specific performance, it is essential that some consideration should spring from the lessee ; if the agreement for perpetual renewal be improvident, absurd, and unequal, or if inserted by mistake, equity will reject an application to carry it into specific execution. A bill was brought for this purpose, on a covenant for the renewal of a lease- hold estate of the yearly value of 130/., at a fine of 3/., by an addition of ten years ; but as there was no adequacy of price for this renewable perpe- tuity ; no onerous services on the part of the les- see ; no money advanced ; no improvement, either stipulated or actually made, the bargain was con- sidered so hard and injurious, that the bill was dis- missed; but without costs. But as no proof existed of the covenant having been improperly obtained, a cross bill to have it declared void was dismissed with costs (z). (y) Williams v. Cheney, 3 Ves. (z) Redshaw v. Bedford Level, 59. 1 Eden, 346. Chap. IX.] Of Covenants for Renewal. 255 So a voluntary agreement endorsed on a lease by one not a party to it, but only a remainder-man, will not bind him to a performance of a covenant for renewal contained in such lease (#). And equally void is a promise by letter to renew a lease in con- sequence of money already expended on the pre- mises ; it is nudum 'pactum, which equity will not perform in specie. Nor will the circumstance of lay- ing out money afterwards, as it is voluntary, vary the nature of the case ; but if the promise be founded on an expressed intention of doing so, a specific perfor- mance will be decreed (b). A purchaser with notice is bound in all respects as the vendor; therefore, where tenant for life granted leases for lives under a power, and bound himself, upon the dropping of a life, to grant a new lease, with the same provision for renewal on the death of any person to be named in any future lease, and af- terwards joined in a sale ; though the power was exceeded, yet a life having dropped in the lifetime of the lessor, the purchaser, having notice, was held to a specific performance, by granting a new lease with the same provision (c). Thus also, a purchaser from a tenant in tail, with notice of a covenant by him to renew a lease, which the father, tenant for life, had covenanted to renew, is bound to perform such cove- (a) Dowling v. Mill, 1 Madd. Compton, 2 Bro. C. C. 32. Pil- 541. ling v. Arnitage, 12 Ves. 78. (b) Robertson v. St. John, 2 (c) Taylor v. Stibbert, 2 Ves. Bro. C. C. 140. Richardson v. jun. 437. Tanner, alias Davis, Sydenham, 2 Vera. 447; S. C. v. Florence, 1 Ch. Ca. 259. 1 Eq. Ca. Ab. 47. See Ford v. 250 Of Covenants for Renewal. [Part III. riant (d). So where a lessee of a college made an underlease, and covenanted with his lessee that he would renew his lease, and add to it a further term of three years ; and he renewed the lease, but instead of adding the three years, he assigned it to J. S. ; the assignee, having notice of the covenant, was obliged to add the three years (e). So where A. made a lease for three years, and, in consideration of the lessee's laying out 100/. in improvements, cove- nanted to grant a new lease at the end of the term; and the defendant purchased the estate and refused to renew ; on application to Chancery the plaintiff had a decree in his favor (/"). A lease, however, not warranted by a power, hav- ing been granted by a tenant for life, containing a covenant for perpetual renewal, the reversioner, by accepting the rent reserved upon the lease, for many years after he came into possession, was not con- sidered to have so far confirmed it, as to make the covenant for renewal binding on him (g). v. Of relief A literal performance of these covenants is ex- covenantee. P ec ted, where it can be accomplished. Accordingly, where a lease for sixty-one years had been granted, containing a covenant " that at any time within one year after the expiration of twenty years of the said term of sixty-one years, upon the request of the lessee, and his paying 61. to the lessors, they would (d) Brook v. Bulkeley, 2 Ves. (/) Richardson v. Sydenham, 498. 2 Vern. 447 ; S. C. 1 Eq. Ca. (e) Finch v. Earl of Salisbury, Ab. 47. Finch, 212. (^)Higginsv.Rosse, 3Bli. 112. Chap. IX.] Of Covenants for Renewal. 257 execute another lease of the said premises unto the lessee for and during the further term of twenty years, to commence from and after the expiration of the said term of sixty-one years thereby granted, at and under the said yearly rent, and the usual and general covenants ; and so in like manner, at the end and expiration of every twenty years, during the said term of sixty-one years thereby granted, for the like consideration, and upon the like request, should and would grant and execute another lease of the pre- mises to the lessee, his executors, &c, for the further term of twenty years, to commence at and from the expiration of the term then last before granted, at and under the like rent and covenants, &c. : under this covenant the lessee was not allowed to claim a further term of twenty years, at the expiration of the last twenty years in the lease, he having omitted to claim a further term at the end of the first and second twenty years (/?). In another case, the defendant had covenanted to renew the plaintiff's lease, at the request of the plaintiff, within three months before the expiration of the then granted lease. The lease being within a month of expiring, and the plaintiff not having re- quested a renewal, the defendant agreed to lease the premises to other persons. The plaintiff, then being in possession, applied for a new lease, which the defen- dant refusing, he filed his bill. The Lord Chancellor was clearly of opinion, that the plaintiff, having omitted to apply at the time agreed on, was not en- (A) Rubery v. Jervoise, 1 Term Rep. '229. S 258 Of Covenants for Renewal. [Part III. titled to relief; observing*, that if a lessee were reliev- able in such a case, he knew not where the court would stop ; it would be saying, the lessee shall be loose, and the lessor bound. It may be observed, that the case referred to was a lease of a colliery, which from the nature of the property might have influenced the judgment of the court; and the Chancellor certainly does appear to have adverted to such circumstance; but his lordship seems to have rested his decision upon general principles, and not upon the particular circumstances of the case (i). If the tenant has been guilty of gross laches in demanding a renewal, or tendering a lease for the lessor's execution, equity will not aid such lessee (A*). That court will interpose and go beyond the stipula- tions of the covenant at law, only where a literal performance has been prevented by unavoidable ac- cident, fraud, surprise, or ignorance not wilful, and upon compensation being made, and no injury done to the lessor (/). Relief was therefore refused, where the plaintiffs, being lessees for three lives under a corporation, who had covenanted to renew on certain terms when one life should drop, suffered two lives to expire, and brought the bill for renewal upon the original terms. The demand was resisted by the corporation ; as the lease provided for renewal only (i) Allen v. Hilton, 1 Fonbl. 1 Ridg. P.C. 194. M' Alpine v. Tr. Eq. 432, note. Cited in City of Swift, 1 Ball & B. 285. London v. Mitford, 14 Ves. 58. (I) Eaton v. Lyon, 3 Ves. 690. (k) Eaton v. Lyon, 3 Ves. 690. 695. But see Maxwell v. Ward, Cityof London v. Mitford, 14 Ves. 11 Price, 16. 17; the opinion of 41. See also Vipon v. Rowley, Lord C. B. Richards. C h ap . I X . ] Of Covenants for Renewal. 259 when one life should drop and two remain, but not in the case of two gone and one remaining. The bill was dismissed with costs, although a compensation was offered (m). This disposition of the courts to force men to be diligent in the just pursuit of their rights, was further exemplified in a very recent case (n). A demise had been made to E. M. Brown for the term of 99 years, if he and two others named in the lease should so long live, with an agreement, " that if E. M. B. his executors, administrators, or assigns, should at any time thereafter, upon the death of any or either of the life or lives by which the said demised premises were then held, be desirous to renew his estate and interest, by adding a new life or lives in the room of the person or persons so dying, and should give notice in writing to or for the defendant, his heirs and assigns, within one year next after the death of any or either of the said person or persons for whose life or lives the said premises were then held, then and in such case, the defendant, his heirs and assigns, should and would, at the costs and charges of the said E. M. Brown, his executors, administrators, or assigns, at any time within the space of one year next after the death of any such life or lives, exe- cute to the said E. M. Brown, his executors, &c. a good, and sufficient, and effectual lease of the pre- (m) Bayly v. The Corporation P. C. 20. Toml. Edit, of Leominster, 1 Ves. Jun. 476 ; (n) Maxwell v. Ward, 1 1 Price, S. C. 3 Bro. C. C. 529. Bayn- 3 ; S. C. 13 Price, 674; S. C. ham v. Guy's Hospital, 3 Ves. M'Clel. 458. 295. Bateman v. Murray, 5 Bro. s 2 260 Of Covenants for Renewal. [Part III. mises for a new term of 99 years, to be determinable on the death or deaths of such of the said life or lives thereinbefore mentioned as should be then living, and the life or lives of any other person or persons as the said E. M. Brown, his executors, &c. should nominate in the room of the life or lives so dying', under the like yearly rents, covenants, provisoes, and agreements ; and so toties quoties any life or lives should drop, and E. M. B., his executors, &c. should be desirous to renew his or their interest therein, upon payment of a certain fine. One of the ces- tuisque vie died in 1803, but no application for re- newal was made till 1808. In August 1817, ano- ther of the two surviving lives determined ; and in February 18 18, before anyrenewed lease was granted, the last surviving life expired. In April 1818, a proposal was made by the representatives of the lessee for renewal for three new lives ; but rejected, on the ground that on the death of the last life the lease was at an end. Alexander C. B. was of opi- nion, that the application made on the dropping of the second life did not entitle the party to a renewal, by inserting a life for that which dropped first. His Lordship then, without considering whether they were entitled to a renewal on the termination of the third life, for the purpose of simplifying the matter, confined himself to the question, whether the parties claiming had a right to have a life substituted for the second life, on the dropping of which they ap- plied within the time and terms of the covenant, and under the circumstances which had taken place ; and he held, that the true construction of the cove- nant was, that notice should have been given on the Chap. IX.] Of Covenants for Renewal . 261 dropping of the first life ; and he said he could not decide otherwise without contradicting what Lord Alvanley said and did in the case of Eaton v. Lyon (o), by which he considered the decision in the princi- pal case must be governed. The result was, that the bill was retained for twelve months in order to en- able the plaintiffs to take the opinion of a court of law ; and if no action should be brought within that period, the bill was to stand dismissed. But a fair ground for relief is shown, if the lessee has lost his right by the fraud of the lessor, by which he was debarred the exercise of his right, or some accident or misfortune on his own part, which he could not prevent, by means whereof he was dis- abled from applying for a renewal at the stated times, according to the terms of his indenture. In this case a lease had been granted for twenty-one years at 1/. rent, with a covenant to renew from twenty-one years, to twenty-one years (to make up ninety-nine years). At the expiration of the first term, there being an arrear of rent due, and no application for renewal, the lessor brought an ejectment and obtained judgment and possession ; but the lessee, accounting for the delay, and paying the arrear and interest, was decreed to be entitled to a renewal (/>). Equity will also relieve against an objection taken, that notice of an intention to renew was not given (o) 3 Ves. 690. (p) Rawstome v. Bentlcy, 4 Bio. C. C. 41,3. 262 Of Covenants for Renewal. [Part III. according to the letter of the condition of the cove- nant, in writing () Horsefall v. Mather, Holt's - N. P.C. 590. N.P.C. 7. Chap. X.] Of Covenants to repair . 267 burnt down, or become ruinous by any other acci- dent (c) ; but an implied assumpsit to use the premises in a husbandlike manner arises out of the relation of landlord and tenant (d). The tenant's responsibility is now usually limited by an express covenant to repair. And this covenant extending to the thing in esse, parcel of the demise, and being quodammodo annexed and appurtenant to the property demised, will run with the land, and bind an assignee, although he be not named (e); even if he be assignee of part of the premises only (f). The landlord sometimes, though seldom, enters into this covenant ; but without a positive agreement he cannot be compelled to repair. Hence, if a lease be made of a house and a piece of land, except the land on which a pump stands, with the use of the pump, the lessee may repair the pump ; but no action of covenant lies against the lessor for not repairing it (g). So, if a house demised be burnt down, the (c) Ibid. which case, as to the liability of (d) Powleyv. Walker, 5 Term the assignee on the covenant Rep. 373. Cheetham v. Hamp- to build, seems to be bad law, son, 4 Term Rep. 318. See also being directly at variance with Godfrey v. Watson, 3 Atk. 518. Spencer's case. Parteriche v. Powlet, 2Atk. 383. (/) Congham v. King, Cro. (e) Spencer's case, 5 Co. 16, a.; Car. 221 ; S. C. W. Jones, 245, S.C. 2 Bulstr. 281. Dean and nom. Conan v. Kemise. Chapter of Windsor's case, 5 Co. (g) Pomfretv. Ricroft, 1 Saund. 24, a. Buckley v. Pirk, 1 Salk. 321; S.C. 1 Vent. 26. 44; 1 Sid. 317. Lougher v. Williams, 2 Lev. 429; 2 Keb. 505. 543. 569. 92. Keeling v. Morrice, 12 Mod. Rhodes v. Bullard, 7 East, 116. 37 1 . Smith v. Arnold, 3 Salk. 4 ; 268 Of Covenants to repair. [Part III. landlord is not bound to rebuild, although the tenant is obliged to pay the rent during the term ; and this, notwithstanding the lessor may have insured the premises, and received the money on his policy (h). II. What A general covenant to repair has been construed within ? co- to comprehend as well buildings erected by the te- venantto nant, as the buildings originally demised. A lessee repair. covenanted to pull down the three houses leased to him, and to build three others in the same place ; and also during the term well and sufficiently to re- pair all the houses so agreed to be built, and also all sewers, &c. made or to be made, and the said demised premises, and houses, and buildings, to be erected and built, and every of them, well and suffi- ciently repaired, to deliver up at the end or other sooner determination of the term : he built four in- stead of three houses ; and the court were of opinion, that the covenant extended to the other house, as well as to the three which were agreed to be built (/). So, where there was a covenant in a lease to repair prcedbjiissa, from the time of the lease to the deter- mination thereof, and so well kept in repair to give up at the end of the term, not saying " from time to time ;" and afterwards the lessee built a malt-house ; the court held, that the covenant should extend to the malt-house, for it was a continuing covenant, and though the house had no actual, yet it had a potential being at the time of the lease (J). (h) See ante, p. 198.202. Brown, 2 Stark. 403. (i) Dowse v.Cale, 2 Vent. 126; (j) Brown v. Blunden, Skin. S.C. nom. Douse v. Earl, 3 Lev. 121. 264. — Administratrix of Penrv v. Chap. X.] Of Covenants to repair. 2G9 But where (A), in consideration of 200/. to be laid out in, upon, or about, rebuilding upon the ground and piemises thereby demised, and other covenants, one Thomas Lant demised to Wilson (who assigned to the defendant) all that piece of ground, and all the messuages, tenements, houses, &c. thereon stand- ing, in Suffolk Place, &c. for forty-three years ; and the lessee covenanted to lay out the said sum of 200/. within fifteen years in electing and rebuilding of messuages or tenements or some other buildings upon the ground and premises ; and from time to time and at all times, all and singular the said mes- suages and tenements so to be erected, with all such other houses, edifices, &c. as should at any time or times thereafter be elected, 8$c. to repair, &c. ; and the said demised premises, with all such other houses, &c. so well repaired, &c. at the end or other sooner determination of the said term to deliver up, &c. ; the question was, to what buildings the covenant extended. Lord Mansfield said, we are extremely clear, that not only the words of the covenant, but also the intent of the parties, manifestly show, that it was not meant that any of the money should be laid out on the old buildings, but that they were to be pulled down, and that whatever the lessee should erect, with the 200/. or otherwise, for his own convenience, should be kept in repair. The words demised premises are put in opposition (/) to the build- ings that were to be erected thereupon with the 200/. And the covenant to deliver up is agreeable to this construction ; that covenant being to leave the de- (k) Lant v. Norris, 1 Burr. 287. of " opposition ." And see 3 Lev. (/) Lege " reference" instead 265. Skin. 121, Editor's note. 270 Of Covenants to repair. [Part III. mised premises, together with all such other houses, &c. as should be afterwards erected, &c. so well re- paired. And a covenant to repair a house, outhouses, and stables, will oblige the party to repair the racks in the stable ; nor need the plaintiff set forth that they were fixed in the stable, and part of the freehold ; for it would be very remote to give it any other con- struction than that they were fixed for use in the stable. Pollexfen C. J., however, entertained a con- trary opinion (/). So, if a lessee who has erected fixtures for the purposes of trade upon the demised premises, after- wards takes a new lease, to commence at the expi- ration of his former one, which new lease contains a covenant to repair, he will be bound to repair those fixtures, unless strong circumstances exist to shew that they were not intended to pass under the general words of the second demise ; but it is doubt- ful whether any circumstances dehors the deed can be alleged to shew that they were not intended to pass (m). Although no decision has reached the precise point, yet the cases lead to the opinion (ti), that a general covenant " to make all needful and necessary repa- (l) Anon. 2 Vent. 214. S.C. 4 Dow. and Ry. 62. (m) Thresher v. Company of (n) Moore v. Clark, 5 Taunt. Proprietors of East London Wa- 90. And see Robinson v. Lewis, ter-works, 2 Barn. andCres.608 ; 10 East, 227. 233. Chap. X.] Of Covenants to repair. 271 rations and amendments whatsoever," will not bind a tenant to contribute to the expense of erecting a party-wall, under the act, 14Geo. 3. c. 78. (o); unless he be also owner of the improved rent (p), that is, the man who on all the subsisting leases has the best rent (jj) ; which improved rent is not construed to signify the improved value, nor can the owner thereof be charged (r); the object of the legislature in enacting that statute (*•) being, to throw the bur- then of paying the expense of party-walls on persons to whom long leases had been granted with a view to an improvement of the estate, and who afterwards underlet at a considerable increase of rent. A lessee, therefore, at a peppercorn rent for the first half year, and a rack rent for the rest of the term, who by agreement was to put the premises in repair, and covenanted to pay the land-tax, and all other taxes, rates, and impositions, having assigned for a small sum in gross, was held not to be liable to pay the expense of a party-wall, either by the provisions of the act, or the covenant; the charge being in such case to be borne by the original landlord. But it seems from an observation which fell from Lord Kenyon, that if a large sum in gross were received by the lessee from his assignee, as a consideration for (o) Sangster v. Birkhead, 1 (q) Sangsterv.Birkhead, 1 Bos. Bos. and Pul. 303. Barret v. & Pul. 305. The Duke of Bedford, 8 Term (r) Beard more v. Fox, 8 Term Rep. 602. Rep. 214. Lambe v. Hemans, (p) Peck v. Wood, 5 Term 2 Barn. & Aid. 467. Rep. 130. Taylor v. Reed, 6 (s) See sec. 41. Taunt. 249. 272 Of Covenants to repair \ [Part III. the purchase, which would be equivalent to an im- proved rent, though no improved rent were reserved to the original lessee, he (the original lessee) would be liable to pay this expense within the act of par- liament (t). Should a tenant, under a covenant to repair, pull down a party-wall (being in a ruinous condition), and rebuild it at the joint expense of himself and the occupier of the adjoining house, to whom he had given the notice required by the statute, in his land- lord's name, but without his authority, he cannot maintain an action against his landlord for a moiety of the expense of rebuilding such party-wall (u). Where, however, the tenant of a house covenanted to pay all rates, &c, "it being the' true intent and meaning of the parties, that the said (lessor), his heirs and assigns, should have and receive the yearly rent or sum of 60/. hereby reserved, in net money, without any deduction, defalcation, or allowance out of the same, on any account whatever;" and the tenant also covenanted generally to repair ; and also during the term, as often as need should require, to bear, pay, and allow, a reasonable share and pro- portion of, or for, or towards, supporting, repairing, amending, and cleaning, all party-walls, party-gutters, common sewers, public sewers, and drains, belonging, or which at any time during the said term should (t) Southall v. Leadbetter, 3 (u) Pizey v. Rogers, 1 Ry. & Term Rep. 458. Stone v. Green- Moo. 357. well, Cited ibid. 461. Chap.X.] Of Covenants to repair. 273 belong to the premises, or any part thereof; the court were clearly of opinion, on two grounds, that the te- nant must bear the burthen of erecting the party- wall ; First, on account of the agreement that the landlord should receive the yearly sum of 60/. in net money, without any deduction or allowance out of the same ; and Secondly, on account of the covenant respecting the repairing of all party-walls, &c, which they considered sufficient evidence of intention that the expense should fall on the tenant (x). Here may be mentioned, that by the statute 14 Geo. 3. c. 78. (?/), it is enacted, " that no action, suit, or process whatever, shall be had, maintained, or prosecuted, against any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall accidentally begin, nor shall any recompense be made by such person for any damage suffered thereby ; any law, usage, or custom to the contrary notwithstanding. — Provided, that no contract or agreement made between landlord and tenant shall be hereby defeated or made void." So that a tenant is not under any necessity to reinstate (x) Barrett v. The Duke of meant to incumber itself with Bedford, 8 Term Rep. 602. But the covenant which parties might see Sangster v. Birkhead, 1 Bos. make with each other; &seeRo- & Pul. 304; where the court binson v. Lewis, 10 East, 233, 4. said, they could not meddle with Stuart v. Smith, 2 Marsh. 435 ; the question, whether a tenant S. C. 7 Taunt. 158. was exempted from his covenant (y) 14 Geo. 3. c. 78. s. 86. to repair by the provisions of the See ante, p. 188. note (&). act ; as the legislature never T 274 Of Covenants to repair. [Part III. premises destroyed by fire, unless the terms of his lease impose this obligation upon him, III. Of the Under a general covenant to repair, the lessee's law tore- naDmt y is not confined to cases of ordinary and pair, where gradual decay, but extends to injuries done to the are destroy- S property by fire, although accidental ; and even if ed by fire, the premises be entirely consumed, the covenantor is under an obligation to rebuild them (z). This liability of the tenant is founded on the old law : it it is so laid down in Brooke's Abridgment (a), re- ferring to 40 Edw. 3. 5. So, in Walton v. Water- house (b), it was taken to be law by Hale, C. J., and the whole court ; and though Saunders, who drew the plea, and argued the case on behalf of the defendant, was dissatisfied with the judgment; it was not because thp court held that under such a covenant the lessee was bound to rebuild, but merely because he thought they had not considered whether the plea were good, or not, in form, the defendant having pleaded that the house was rebuilt, without saying by whom, and the plaintiff himself having in fact rebuilt it. In like manner, if a party covenants to build a bridge in a workmanlike manner across a river, and (z) Compton v. Allen, Sty. Blackburn, 3 Ves. 38. Rook v. 162. Anon. Dy. 324, a. pi. 34. Worth, 1 Ves. 462. Poole v. Archer, 2 Show. 401 ; (a) Bro. Ab. Covenant, pi. 4. S. C. Skin. 210. Chesterfield (b) Walton v. Waterhouse, 2 v.Bolton, Com. 627. Bullock Saund. 420; S.C. 2 Keb. 535 ; v. Dommitt, 6 Term Rep. 650 ; 3 Keb. 40. Anon. 1 Vent. 38. S. C. 2 Chit. 608. Pym v. Chap. X.] Of Covenants to repair. 275 to uphold and keep it in complete repair for seven years, he will be held to the observance of his con- tract, although the bridge be, by the act of God, by a great, unusual, and extraordinary flood of water, washed and broken down(c). And the distinction taken in the books is this : when the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him ; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he can, notwithstanding any accident by inevitable necessity ; because he might have provided against it by his contract. And therefore, if a lessee covenants to repair a house, though it be destroyed by lightning, or thrown down by enemies, yet he ought to repair it (d). In consequence of this obligation, and in order to afford some protection to the tenant, it is cus- tomary to introduce into the covenant to repair, an exception against accident by fire, and sometimes, by lightning and tempest. But it does not appear that this exception will, at law, bind the landlord to repair damages occasioned by fire or storms (e). An action was brought for half a year's rent (/) : the de- fendant pleaded that he covenanted to repair, casu- (c) Brecknock Canal Com- S.C. 2 Chit. 608. pany v. Pritehard, 6 Term Rep. (e) Weigall v. Waters, 6 Term 750. Rep. 488. Monk v. Cooper, 2 (d) Ibid. Anon. Dy. 33, a. pi. Stra. 763 ; S. C. 2 Ld. Raym. 10. Paradine v. Jane, Al. 26; 1477. Steele v. Wright, Cited S. C. Sty. 47. Chesterfield v. 1 Term Rep. 708. Bolton, Com. 627. Bullock v. (/") Ibid, and see S.C. 2Anstr. Dommitt, 6 Term Rep. 650 ; 575. T 2 27G Of Covenants to repair. [Part III. alties by fire and tempest excepted ; that a violent tempest arose, and threw down a stack of chimneys belonging to the house, and damaged the house so much, that it would have become uninhabitable, if he had not repaired it ; that he had laid out 30/., which he was ready to set off against the rent claimed. The court, after objecting to the plea, because it did not set off any certain debt, but un- certain damages, said, that they did not see by what covenant the landlord was bound to repair damages occasioned by fire or tempest ; the exception having been introduced in the lessee's covenant for his be- nefit, and to exempt him from particular repairs ; but if the plaintiff has fairly laid out money on re- pairing what he was not bound to repair, perhaps a Court of Equity would give him relief. IV. Of the It will be seen, that the last dictum merely equity y tore- amoun ted to this, that if there were any remedy at pair, where all, it must be in equity : it negatived the remedy are destroy- sought at law, but did not affirm the existence of ed by fire, an equitable claim. Whether a tenant has any equity to compel his landlord to put the premises in their former condition, or to restrain him from suing: for rent until such rebuilding, has been the subject of some diversity of opinion. In the case of Brown v. Quilter(o), the plaintiff had taken a house and wharf belonging to the de- fendant, and covenanted to repair, &c, accidents by (g) Brown v. Quilter, Ambl. ham, 1 Term Rep. 708 ; and in 619 ; S. C. 2 Eden, 219 ; and Cutter v. Powell, 6 Term Rep. cited in Doe dem. Ellis v. Sand- 323. Chap. X.] Of Covenants to repair. 277 fire excepted ; and the defendant covenanted in the usual manner for quiet enjoyment. The house was afterwards burnt down. The defendant, having insured it at 500/., and having received the insu- rance money, neglected to rebuild, and the plaintiff refused to pay the rent which became due after the house was burnt. As soon as the defendant brought an action for the rent, the plaintiff filed a bill for an injunction, and to compel the defendant either to rebuild the house, or to pay the insurance money to the plaintiff, towards satisfaction of his loss. The defendant in his answer insisted upon his right to the insurance money, and to be paid the rent with- out rebuilding the house, but offered to discharge the plaintiff from the lease. Lord Northington thought, that such a case as this should be consi- dered as much an eviction, as if it had been an eviction of title ; for the destruction of the house was the destruction of the thing ; and though the covenant for quiet enjoyment would not extend to oblige the lessor to rebuild ; yet, when an action was brought for rent after the house was burnt down, there was a good ground of equity for an injunction, till the house was rebuilt. The defendant, he said, by his answer had offered an equity, which was, to take back the lease, and consent to its being can- celled. And his Lordship was going to give direc- tions for that purpose, but the plaintiff, being present in court, and choosing to continue tenant without having the house rebuilt, rather than give up the lease, his Lordship dismissed the bill, with costs. The learned judge remained of the same opinion in 278 Of Covenants to repair. [Part III. the subsequent case of Campden v. Moreton (h) : and Lord Northington's doctrine was corroborated by Lord Bathurst in Steele v. Wright (i). In the case of Brown v. Quilter, Lord Northing- ton proceeded upon an opinion, that, even at law, the right of the landlord to recover rent in a case where the property was destroyed by fire would be doubtful, and he considered it similar to an eviction ; but, as observed by Macdonald, C. B. (k), it may well be questioned whether there is any real resem- blance between the cases. The tenant can only be evicted where the title of the landlord was originally bad ; where he never had in truth any thing to de- mise, and the pretending to do so was a fraud upon the lessee. In the principal case, there was a full capacity to demise the thing leased, on any terms which the parties might agree upon. The authority, however, of these cases has been considerably shaken, if not entirely overruled, by subsequent decisions. The first case to the con- trary (/) was a solemn determination upon a hearing. A covenant was comprised in the lease, on the part of the tenant (the plaintiff), for the due payment of the rent, and for keeping and leaving the premises in repair, damage by fire only excepted. The house was consumed by fire : the stables and outbuildings were not damaged. The plaintiff soon afterwards applied to the defendant to rebuild the premises, (h) Campden v. Moreton, sup. (k) 3 Anstr. 693. p. 199. (1) Hare v. Groves, 3 Anstr. (i) Steele v. Wright, Ibid. 687. Chap.X.] Of Covenants to repair. 279 or to accept a surrender of the lease. The defend- ant refused to do so ; and commenced an action at law on the covenant, for non-payment of rent ac- cruing subsequently to the fire. A bill was filed for an injunction, and to compel the defendant either to accept a surrender of the lease, or to rebuild the premises. The court considered, that, at law, the landlord's right to recover his rent, notwithstanding the destruction of the property by fire, was fully es- tablished. And the bill was dismissed, not upon any evidence of the particular circumstances of the case, or of Jhe dangerous use to which the house had been applied ; but upon the general ground that the equity of the parties was equal, and that the rule of law must prevail. HoltzapfFel v. Baker (m) was the next case. The plaintiff was under an agreement to take a lease of the premises in question at a certain rent ; he also agreed to pay the rent thereby reserved on the days and times therein mentioned; and to repair, damage by fire excepted. During his occupation the house was burnt down ; and an action being brought for rent in arrear since the fire, the plaintiff filed his bill, praying that the defendant might rebuild the premises, and for an injunction against the proceed- ings at law in the meantime ; or that the defendant might accept a surrender of the premises. Lord Eldon said, that if the parties agreed, the tenant to repair in all cases except fire, and the landlord, that in case of fire he would be content, at the end of the (m) Holtzapffel v. Baker, 18 Ves. 115; S. C. 4 Taunt. 45. 280 Of Covenants to repair. [Part III. term, to take the land without the house, he saw no reason why they should not ; for if the meaning of the contract was, that, if a fire should happen, the rent should not be paid, there was no occasion to come into equity ; but if that was not the effect of the contract at law, he could not see any equity : the injunction was therefore dissolved. The main point of distinction between the cases first cited, viz. Brown v. Quilter, Campden v. More- ton, and Steele v. Wright, and the two last, Hare v. Groves, and Holtzapffel v. Baker, consists in the circumstance, that in the three former the landlord had insured the house, and on its being consumed had become entitled to the insurance, and, therefore, had in his pocket the value of the thing which was the subject of his contract with the lessee. As to him, therefore, no loss had happened. And Mac- donald, C. B. thought, in the case of Hare v. Groves, that there might be some equity to say, that he should not keep the house or its value, and receive the rent also; but should either put it down again for the use of the lessee, or remit the rent. But it has very recently been held, that there is no satisfactory principle to support that kind of equity which is alleged to arise from the defendant's receipt of the insurance money. The facts of the case (n) were these : The defendant demised to the plaintiff a cotton factory, together with the steam- boiler, steam engine, steam pipes, and gearing, there- («) Leeds v. Cheetham, 1 Sim. 146. Chap.X.] Of Covenants to repair. 281 unto belonging for twenty-one years, at the yearly rent of 103/. 3*. 6d. The plaintiff covenanted to pay the rent during the term, and to repair and keep repaired the inside of the cotton factory, and the outbuildings and offices thereto belonging, together with all fixtures, buildings, &c. : and the defendant covenanted to maintain the outside brickwork, plas- tering, slating, tiling, and all other outer parts of the premises in good repair, &c. There was no ex- ception in respect of accidents by fire, either in the covenant for payment of the rent, or in the covenant to repair. On the 22nd of June 1825, the factory, buildings, and premises, were destroyed by fire. After the lease was granted, the defendant insured the factory and buildings for 500/. ; the steam engine for 100/. ; the engine house for 60/. ; and the gear- ing for 40/. ; so that the total amount of the sums insured was 700/. ; and shortly after the fire he re- ceived that sum from the insurance office. The bill prayed, that it might be declared, that the defendant was bound to lay out and apply the 700/., or a com- petent part thereof, together with the old materials, in and towards the rebuilding and reinstating of the factory, buildings, and premises, &c. ; and that it might also be declared, that the plaintiff was not bound to pay the rent during such term as the fac- tory and premises, &c. should continue unbuilt and unrestored; and that he might be discharged there- from accordingly ; and that, in the meantime, the defendant might be restrained from further proceed- ing in the action. The Vice-Chancellor in deliver- ing his judgment said: — Clearly, at law, the plaintiff, having covenanted to pay his rent during the whole 282 Of Covenants to repair. [Part II J. continuance of the lease, is not entitled to any sus- pension of the rent during the time that will be occupied in the rebuilding and restoration of the premises. It appears to me that, in this respect, equity must follow the law. The plaintiff might have provided in the lease for a suspension of the rent in the case of accident by fire ; but, not having done so, a court of equity cannot supply that pro- vision which he has omitted to make for himself; and it must be intended, that the purpose of the parties was according to the legal effect of the con- tract. With respect to the equity which the plain- tiff alleges to arise from the defendant's receipt of the insurance money, there is no satisfactory prin- ciple to support it. The defendant, having so con- tracted with the plaintiff as to render himself liable to rebuild the outer work of the factory, in case of accident by fire, has very prudently protected him- self by insurance from the loss he would otherwise have sustained by such an accident. But upon what principle can it be, that the plaintiff's situation is to be changed by that precaution on the part of the defendant, with which the plaintiff had nothing what- ever to do ? The plaintiff has sought his protection in the contract by the covenants which he has re- quired from the defendant ; and to those covenants must he alone resort. It is now, therefore, settled, that a tenant has no equity to compel his landlord to expend money re- ceived from an insurance office, in rebuilding the demised premises, on their being burnt down ; or to restrain the landlord from suing for the rent until Chap.X.] Of Covenants to repair . 283 after the premises shall have been rebuilt (0). In the last case, it is true, there was no exception against accidents by fire ; but it appears that little importance is attached to these words ; the excep- tion being introduced merely for the benefit of the lessee, and to exonerate him from the necessity of repairing in certain events. It saves him from one of the duties to which he would otherwise be liable in case of fire, under the general covenant to re- pair O). It is to be observed, that a tenant holding over after the expiration of the term, impliedly holds subject to all the covenants in the lease which are applicable to his new situation ; and, therefore, if after the expi- ration of a written lease, containing a covenant by the lessee to keep the premises in repair, he verbally agrees to continue tenant, paying an additional rent, nothing more being expressed between the parties respecting the terms of the new tenancy, and the premises afterwards become ruinous by accidental fire, he is bound to rebuild them ; and the mere advance in the amount of rent to be paid makes no difference ; for the advanced rent incorporates the old terms with the new contract, the parties still being supposed, in other respects, to have had refer- ence to the old lease. The usage in such cases is, to declare in assumpsit on the implied promise raised (0) This subject, with respect discussed; Ante, Chap. VI. to the tenant's liability to pay (p) Hare v. Groves, 3 Anstr. rent after the destruction of the 696. property by fire, has been already 284 Of Covenants to repair . [Part III. by the continued holding (y). An action on the case would also lie, declaring specially on the implied agreement, with an averment that the plaintiff was always ready to perform his part ; but an action of covenant could not be supported (r). V. What a Where the covenant is to repair, and keep in repair, if the premises be at any time out of repair, the party will be guilty of a breach of covenant (s). But where the party covenants to repair, and leave the houses and buildings in as good a plight as he found them, he will be answerable for all damage, even if committed by the king's enemies, or occasioned by storms, flood, fire, or lightning (t). But where he covenants to leave trees, wood, and other natural productions, in the same plight as he found them, a distinction will be taken between the act of the party, and the act of God, by which he may be incapaci- tated to perform his agreement. Thus, where one covenants to leave a wood in the same plight as he found it ; by the act of cutting down trees himself, the covenant is immediately broken ; for his own act has rendered the performance impossible ; but it is otherwise, if some of the trees be blown down by (q) Digby v. Atkinson, 4 Camp, (s) Luxmorev. Robson, 1 Barn. 275. Bromefieldv. Williamson, & Aid. 584. Sty. 407, in debt on bond for (t) Paradine v. Jane, Al. 26 ; performanceof covenants. Kimp- S. C. Sty. 47. Anon. Dy. 33, a. ton v. Eve, 2 Ves. & B. 353. See pi. 10. Company of Proprietors also Brudnell v. Roberts, 2 Wils. of the Brecknock and Aberga- 143. venny Canal Navigation v. Prit- (r) Kimpton v. Eve, sup. chard, 6 Term. Rep. 750. Chap. X.] Of Covenants to repair . 285 the wind, or the like : as the damage in that case arises by the act of God, the covenantor is not bound to supply it (u) ; the maxims of law being, Lex non cog it ad impossibilia, and, Impotentia excusat legem (v). So, where one covenants to repair a house before such a day, and it happens that the plague is in the house before and until the day ; the omis- sion to repair is not a breach of the covenant, for the existence of the plague is a good excuse ; but, unless done in convenient time afterwards, the covenant will be broken (w). In a case in Dyer (x), the court took a distinction between a covenant to repair under a penalty, and a covenant for non-performance : their opinion was, that if the house be burnt by lightning, or over- turned by the wind, the lessee should be excused from the penalty ; because it was the act of God, which could not be resisted ; but they held, that he was bound to make and repair the thing in conve- nient time, because of his own covenant. The breaking up of a pavement ; carrying away the locks and keys of a cupboard ; breaking the glass in the windows ; and carrying away a shelf ; amount to a breach of a covenant to repair {y). So does the breaking a door-way through the wall of the (m) Shep. Touch. 73. Plowd. (w) Shep. Touch. 174. 29. 40 Ed. 3. 5, b. Main's Case, (x) Anon. Dy. 33, a. pi. 10. 5 Co. 21, a. Willams v. Hide, (y) Pyot v. Lady St. John, Palm. 549. Cro. Jac. 329; S. C. 2 Bulstr. (v) Ingolsby v. Wivell, Hardr. 102. 387. Shelley's Case, 1 Co. 98, a. 286 Of Covenants to repair. [Part III. messuage demised, into the adjoining house, and keeping it open for a long space of time (z). If a person, on a building lease, covenants to re- build several houses, the rebuilding some, and repair- ing others, at a considerable expense, by pulling down the fore and back fronts, and rebuilding them, is not a performance of the covenant (a). But where a lessee covenanted to repair the four messuages demised, and, within the first fifty years of the term, to take down the said demised messuages as occasion should require, and in the place thereof to erect, in a workmanlike manner, upon the premises, four other good and substantial brick messuages ; the Court of Common Pleas were of opinion, that, if within the fifty years the houses should be so repaired, as to make them completely and substantially as good as new houses, the lessor would have all he was entitled to; that the covenant would be satisfied without taking down the old houses ; and that the words as occasion should require would raise a ques- tion of fact for a jury whether such occasion did arise (b). A lessee gave a bond, with a condition that he would at all times during the term repair the two messuages leased ; and, to an action, pleaded, that he had per- formed the conditions in all repects, except as to one (z) Doe d. Vickery v. Jack- ported, 3 Atk. 512. son, 2 Stark. 293. {b) Evelynv.Raddish,7Taunt. (a) City of London v. Nash, 411; S.C. Holt's N. P. C. 543. 1 Ves. 12 ; S. C. more fully re- Chap.X.] Of Covenants to repair. 287 kitchen, which was so ruinous at the time of the de- mise, that he could not maintain or repair it, and therefore he took it down, and rebuilt it in as short a time as he possibly could, in the same place, as large, and as sufficient in length, breadth, and height, as the other kitchen was ; and that the said kitchen, at all times after the re-edifying it, he had sustained, and maintained, and well repaired: on demurrer, the court held, that the plea would have been available in an action of waste ; but here, where he had by his own act tied himself to an inconvenience, he was bound at his peril to provide for it (Jj). It is difficult to reconcile the decisions in this and the preceding case ; and it may be at least questionable, whether at the present day the condition would not meet with a different construction. It may be mentioned, that where a tenant under a lease containing a covenant to repair, underlets the premises to one who enters into a similar covenant with him, and the original lessor brings an action on the covenant and recovers against the first lessee ; the damages and costs recovered in that action, and also the costs of defending it, may be recovered as spe- cial damages in an action against the under-tenant for the breach of his covenant to repair (c). An argument was advanced in a case (d), al- ready qu oted, (in which a tenant had covenanted to (6) Wood v.Avery, 2 Leon. Cres.533;S.C.5Dow.&Ry.442. 189; S.C. Sav. 96. (rf)Luxmorev.Robson, IBarn. (c) Neale v. Wyllie, 3 Barn. & & Aid. 584. 288 Of Covenants to repair. [Part III. repair, and keep in proper repair, the buildings de- mised to him during the term,) that no right of action vested in the lessor or his assignees before the expi- ration of the term ; and that the covenant to keep in repair, would be satisfied by the lessee's putting the premises into repair at any time during the continu- ance of the term ; but it was resolved, that, as by the terms of the covenant the lessee was bound to keep the premises in repair, to keep them in repair, he must have them in repair at all times during the term ; and that, if they were at any time out of repair, he would be guilty of a breach of covenant, which would be the proper subject of an action. There is, indeed, a position to be found of a contrary tendency in an early case (e). It is there laid down, that if a man leases a manor for years, and the lessee cove- nants to keep the houses of the manor, and as much as was in the manor, in as good plight as he found them, and during the term the lessee commits waste in the houses, and in cutting of oaks ; an action will lie for the lessor, before the end of the term, for the oaks ; because for them it is impossible that the co- venant could be performed ; although it is otherwise with respect to the houses. But this doctrine has been frequently questioned. The reporter of the case of Luxmore v. Robson remarks, that the counsel who was to have argued in support of the declaration stated, that, on referring to the case in F.N. B. (/), cited as an authority for the position laid down in Main's case, it appeared that no judgment what- ever had been pronounced ; and, therefore, what was (e) Main's Case, 5 Co. 21, a. (/) F. N. B. 145, K. In some editions, 145, I. Chap. X.] Of Covenants to repair. 2S9 said by the court could be considered as no more than an obiter dictum; and that in 2Rol. Rep. 347, Dodridge, J. denied the case to be law. Moreover, in Luxmore v. Robson, the proposition was repudi- ated by the court as unsound; Lord Ellenborough, C. J. observing, that common sense, the practice, and the general convenience of mankind, required that a construction different from that in the case cited (Main's case) should be adopted ; to which Mr. Justice Bayley added, that neither common sense, nor any principle of law, would lead to the conclusion which the passage cited from 5 Rep. would seem to warrant. Although the lessee is liable to an action before the expiration of his term, on a covenant to keep the premises in good repair ; on a covenant to leave them in as good a state as he found them, no action will lie till the end of the term : if, therefore, the tenant pull them down, he will not be guilty of a breach of covenant, for he may rebuild them before the determination of his lease(,g'). And, consequently, it is usual in actions of covenant brought within the term for not repairing, to give only nominal damages, for the lessee may afterwards repair during the term ; but that is only a rule of discretion ; there may be circumstances where the whole value of the repairs shall be given for not repairing (/?). (g) Shep. Touch. 173. 45; & Holt, 178. Shortridge v. (h) Moore v. Clark, 5 Taunt. Lamplugh, 2 Lord Rayin. 798 ; 96. See further Vivian v. Cham- S. C. Holt, 621 ; 2 Salk. 678 ; pion, 1 Salk. 141 ; S.C. 2 Ld. 7 Mod. 71. Raym. 1225; Anon. 11 Mod. i 290 Of Covenants to repair. [Part III. In most leases a clause is to be found, empower- ing the lessor to enter into the property demised at specified times, to view the condition thereof, and to leave notice of the defects or want of reparation ; and the lessee, on his part, covenants to make the necessary repairs. On this clause cases have arisen, with regard to the time at which the landlord is enabled to sue ; and the questions are, 1st, Whether, under these stipulations, an action can be supported without giving any notice at all ; and 2dly, Where a notice has been served, whether an action can be maintained within the period prescribed by the notice for repairing. First, Where a lessee covenants to repair, and to yield up the premises so repaired at the end of the term ; and in the indenture is comprised another covenant, that it shall be lawful for the lessor, twice or oftener in every year, to enter and view the condition of the pre- mises, and of all defects found to leave notice in writ- ing to the lessee, to repair within six months; and the lessee covenants to repair within six months accord- ingly : it is not requisite to give six months' notice, prior to the commencement of an action for a breach in not repairing, as these are distinct and separate co- venants, the one not qualified by the other (/). So, where the lessee of a house covenanted that he would, from time to time during the term, after three months' notice, sufficiently repair, and at the end of the term leave it sufficiently repaired ; it was holden, that the latter was a distinct clause ; and that, (i) Wood v. Day, 1 J. B. Mo. 389; S.C. 7 Taunt. 646. Chap.X.] Of Covenants to repair. 291 by leaving the premises in a dilapidated state, the tenant had committed a breach of his covenant, although he had received no notice three months before (k). But where the covenant is clearly qualified, as if it be, that the tenant shall repair the messuages and premises demised, from time to time, and at all times, when, where, and as often as, need or occasion shall be during the term, and at furthest within three months after notice of any decay or want of repara- tion shall, by the lessor or his assigns, be given to, or left at, the demised premises, for the lessee or his assigns ; to entitle the lessor to an action, he must comply with the provision respecting the notice ; for the terms of stipulation must be joined to the for- mer part of the sentence to render it complete (/). So, a covenant by a tenant, that, from and after the reparation of the demised messuage by the landlord, he (the tenant) will sufficiently repair and maintain it, is conditional ; and although it be in a good state at the time of the lease, if it afterwards happen to decay, the landlord, until the first repairs be made by him, cannot charge the defendant on his cove- nant (w). Secondly, Where notice has been given. If the lease contains a general covenant to keep the pre- (k) Harflet v. Butcher, Cro. 113. Jac. 644. (m) Slater v. Stone, Cro. Jac. (1) Horsfall v. Testar, 1 J. B. 645. Bragg v. Nightingall, Sty. Mo. 89; S. C. 7 Taunt. 385. 140. See Schomberg v. Nash, Say. u 2 292 Of Covenants to repair. [Part III. mises in repair ; and also a clause, that the lessor may enter to view the defects, &c. ; and that the lessee shall, within three months after notice, re- pair all defects of which such notice shall be given ; with the usual proviso for re-entry ; a notice by the landlord, requiring the tenant forthwith to put the premises in repair according to his covenant, is no waiver of the right of re-entry occasioned by a breach of the general covenant to repair ; nor will it preclude the landlord from bringing an action of ejectment prior to the expiration of the three months («). The distinction between this case and one of later occurrence in the Court of King's Bench (0), con- sists in the different language used in the notices. In the former, the tenant was required to put the premises in repair forthwith ; which, it was held, did not prevent the landlord from bringing his ejectment at any time ; but in the latter, the notice was to re- pair and amend within the space of three calendar months from the delivery thereof; which notice, the court thought, amounted to a declaration, that the landlord would be satisfied if the premises were re- paired within three months ; and was equivalent to an admission that the tenancy would continue up to the expiration of the three months, and, therefore, de- feated him of his right to commence an action of (n) Roe d. Goatly v. Paine, 4 S. C. 7 Dow. & Ry. 98. 1 Carr. Campb. 520. & P. 346. See also Hill v. Bar- Co) Doe dem. Morecraft v. clay, 16 Ves. 402; 18 Ibid. 56. Meux, 4 Barn. & Cres. 606; 64. Chap. X.] Of Covenants to repair. 293 ejectment before the determination of that period : but they clearly held, that, after giving the notice to repair within three months, the lessor might have an action againstthe defendant upon the former covenant, for not keeping the premises in repair ; that remedy being very different from insisting on the forfeiture. There is another circumstance distinguishing this case from Roe v. Paine, which, of itself, and indepen- dently of the notice, operated as a waiver of the right of re-entry. The notice was dated the 6th day of August 1823. On the 24th of October 1823, the lessor of the plaintiff received of the defendant half a year's rent to the 29th of September 1823 ; and the declaration in ejectment was served on the 28th of October 1823, being prior to the effluxion of the said three months. As the landlord, therefore, by receiving the rent which became due on the 29th of September, had affirmed the subsistence of the lease up to that period, it was plain, that he did not mean to insist upon an immediate forfeiture at the time when the notice was given. The rule may now be taken to be established, that VII. Of spe- equity will not decree a specific performance of a JL^^ covenant to repair ; butwill leave the party to recover damages in an action at law. This was the opinion of Lord Apsley (p), Lord Hardwicke () Rayner v. Stone, 2 Eden, Hill v. Barclay, 16 Ves. 405, 6. 128. (s) Mosely v. Virgin, 3 Ves. (w) Flint v. Brandon, 8 Ves. 185. 159. (t) Bracebridge v. Buckley, 2 Chap. X.] Of Covenants to repair. '2'Jo was refused, the effect was obtained, by an order, to restrain impeding the plaintiff from navigating, using, and enjoying, by continuing to keep the canals, banks, or works, out of repair, by diverting the water, or preventing it by the use of locks from re- maining in the canals, or by continuing the removal of a stop-gate (x). Where the property in question was greatly out of repair, and the plaintiff's bill was to compel the defendant to discover whether the lease was not as- signed to him, and to compel him to perform the covenants on the lessee's part ; inasmuch as the de- fendant was only a mortgagee, who never was in possession, the court refused to assist the plaintiff to charge him, or decree him to perform the covenants in the lease ; but the plaintiff was left to recover at law (z/). Nor is an under-lessee, receiving the profits of an estate, liable at law, nor bound in equity, on a cove- nant to repair, unless the first lessee do not leave assets ; then, indeed, there might be some reason in equity to charge the defendant with the covenant ; but where the proper remedy, an action against the executors of the first lessee, does not fail, the plain- tiff will not be suffered to resort to this extraordi- nary method (z). (x) Lane v. Newdigate, 10 Ves. (z) Goddard v. Keate, 1 Vern. 192. 87; S.C. lEq.Ca.Ab.47.pl. 7. (y) Sparkes v. Smith, 2 Vern. Webber v. Smith, 2 Vern. 103 ; 275; S. C. 1 Eq. Ca. Ab. 47. S.C. 1 Eq. Ca. Ab. 115. pi. 14. pi. 6. 29G Of Covenants to repair. [Part III. A covenant in a lease to repair, and, at the end of the term, to surrender buildings in good condition, will not preclude the lessors from an injunction to restrain their lessees or under-tenants from pulling them down, and carrying away the materials, just before the end of the term (a). m A bill was filed for a specific performance of arti- cles for a lease of lands, with usual covenants, in the county of Norfolk, where by custom the landlords usually covenant to repair. The defendant pre- tended, that the rent reserved on the lease was un- der the value, it being intended, that the tenant should repair. But no such agreement or mutual intention was proved. It was held, that the words usual covenants should be construed usual all over England ; and that the lessee being plaintiff, to have a lease, should be obliged to repair, notwithstanding the contrary usage in Norfolk ; but that the case might have had a different construction if the de- fendant had been plaintiff, to enforce the tak- ing of a lease (Z»). Certain it is, that a covenant by a landlord to rebuild in case the premises should be blown down or burnt, otherwise the rent should cease, is not an usual covenant (c). While this subject is under observation, it will not be irrelevant to notice the cases respecting the spe- («) Mayor of London v. Hed- reported, ger, 18Ves. 355. (c) Doe dem. Ellis v. Sand- (b) Burrelv. Harrison, 2 Vern. ham, 1 Term Rep. 705; S. C. 231 ; S. C. Prec. Ch. 25, nom. 3 Swanst. 685 ; Cited 1 Swanst. Burwell v. Harrison, and better 353. n. Chap. X.] Of Covenants to repair. 297 cific performance of covenants to build. On this question, the practice of the court has at different periods undergone some variation. Lord Hardwicke's opinion was, that upon a covenant of this description a landlord might come into equity for a specific performance, as the not building took away his se- curity (d). And a prior case is to be met with, in which such a decree had been pronounced (e). Sir Lloyd Kenyon, M. R., however, thought otherwise ; and said (what was not exactly consistent with fact, as has been shown by the case of Allen v. Harding,) that there was no case of a specific performance decreed of a covenant to build a house ; giving as his reason: that if A. will not do it B. may(/). Lord Thurlow, likewise, thought that there could not be a decree to rebuild, as he could no more undertake the conduct of a rebuilding than of a repair (g). The proposition that a decree for specific perform- ance cannot be made upon a covenant to build, ac- cording to Lord Loughborough's opinion, admits this qualification : when the transaction and agreement are in their nature defined, perhaps there would not be much difficulty in decreeing a specific performance ; (d) City of London v. Nash, 1 Ch. Ca. 190 ; 1 Eq. Ca. Ab. 1 Ves. 12; S. C. 3 Atk. 512. 85.pl. 5; Ibid. 274. pi. 11. Rook Pembroke v. Thorpe, 3 Swanst. v. Worth, 1 Ves. 461. 437. 443, in note. (f) Errington v. Aynesly, 2 (e) Allen v. Harding, 2 Eq. Bro. C. C. 341 ; S. C. 2 Dick. Ca.Ab.17.pl. 6. See Lord Lough- 692. borough's comments on this case (g) Lucas v. Comerford, 3 Bro. inMoselyv.Virgin,3Ves.l85,6. C. C. 166; S. C. 1 Ves. jun. Holt v. Holt, 2 Vera. 322; S.C. 235 ; Cited 1 Meriv. 264. 298 Of Covenants to repa'u \ [ Part II I . but where it is loose and undefined, and it is not ex- pressed distinctly what the building is, so that the court could describe it as a subject for the report of the Master, the jurisdiction could not apply. A bill, therefore, for a decree for specific performance of a covenant " to lay out 1000/. in building" was dis- missed by him, as being too uncertain ; for the kind of building did not appear. I suppose (said the Lord Chancellor) a house was meant. It is not said whether a manufactory would have answered or not. I cannot tell (A). Thus, equity will execute a covenant, that a house to be built by a lessee shall correspond with the ad- joining houses already built in its elevation (i). But where a landlord has dispensed with a covenant, in favor of one tenant, entered into for the benefit of all ; such as, to build in uniformity, or, not to erect any building exceeding a certain height ; although the party may have a good case for damages at law ; he cannot have equitable relief by injunction to restrain others, to whom he has not given such license, from infringing the covenant ; for if he thinks it right to take away the benefit of his general plan from some of his tenants, he cannot with any justice come into equity for an injunction against those tenants; because they are deprived of the right which he had given them to have the general plan enforced for the be- nefit of all ; and every relaxation which the plaintiff (h) Mosely v. Virgin, 3 Ves. Brandon, 8 Ves. 164. 184. And see Gough v. Wor- (i) Franklynv.Tuton,5Madd. cester and Birmingham Canal 469. Company, 6 Ves. 353. Flint v. Chap. X.] Of Covenants to repair. 299 permits, in allowing houses to be built in violation of a covenant to build in uniformity, amounts pro tanto to a dispensation of the obligation intended to be contracted by it. These circumstances, together with the neglect of the plaintiff for four or five months to file his bill, prevented the court from in- terfering by injunction (/«:). An agreement was entered into by one to build a house, according to a plan furnished by the surveyor of the other party, the latter undertaking, on its completion, to accept a lease of the premises ; and the surveyor, after the commencement of the build- ing, got possession of the plan by stratagem, and re- fused to redeliver it : on an application to enforce the party to take the lease, it was held, that small deviations from the plan agreed on would not be material ; but that it would be otherwise if the de- viation were obstinate or corrupt (/). Whether a tenant, the defendant in an action of VIII. Of ejectment, under the clause conferring a right of entry *fj£ £* e re " on his landlord for breach of covenants, has any forfeiture on claim to be relieved by a court of equity against the breach, consequences of his neglect to repair, remains to be discussed. Respecting the jurisdiction of the court on this subject, which has been denominated a dan- gerous jurisdiction, very little information is to be collected from ancient cases, and scarcely any in (k) Roper v. Williams, Turn. (/) Craven v. Tickell, 1 Ves. 18. Jun. 60. 300 Of Covenants to repair. [Part III. modern times (w). The relief has in some instances been administered to the tenant ; but at the present day, except under very particular circumstances, such as those noticed hereafter, the court will not extend the relief sought for to the instance of for- feiture for not repairing. In one of the earliest cases (n), the plaintiff in ejectment had proved a breach of covenant, in not keeping a barn well thatched, had a verdict, and the tenant was turned out of possession ; upon which he applied to a court of equity for relief; and a refer- ence was directed to the Master, to see what damage was done (if any) by non-performance of the cove- nants, and at what time ; the Lord Chancellor observ- ing, that he could not apprehend what damage could be sustained, if the lessee suffered the buildings to be out of repair, so as he kept the main timber from being rotten, and left all in good repair before the end of the term. The ground of this decree has been the subject of Lord Eldon's repeated animad- version. If that is to be the principle, it might as well be said, that from the beginning to the end of the term there must be no (o) relief in equity, how- ever wilful or obstinate the non-performance may be. How does the court know that the lessee will repair at the end of the term ; or whether he or his assets will be then forthcoming, if the landlord cannot act (m) Hill v. Barclay, 16 Ves. 115. pi. 14. 406. (o) In both editions of Vesey (n) Hack v. Leonard, 9 Mod. the word ?io is omitted, but the 90. And see Webber v. Smith, sense of the context seems to de- 2 Vern. 103 ; S. C. 1 Eq. Ca. Ab. mand its insertion. Chap. X.] Of Covenants to repair. 301 upon it during the term? (/?). If this doctrine can be maintained in general cases, what is to be said of the case where, the court administering this species of equity, the tenant has become bankrupt before the end of the term, the assignees refuse to take to the lease, and the premises are thrown back to the lessor in a state of utter non-repair ? (y). Lord Erskine also granted this relief (r). The case was somewhat peculiar in its circumstances, which may perhaps be considered as warranting the judg- ment. The relief sought did not arise out of the for- feiture by breach of a general covenant to repair ; but on a covenant to lay out within a given time a specified sum, in substantially repairing and improv- ing the premises. It did not appear that there had been any dealing by request and refusal between the lessor and lessee, in the period during which, by the express covenant, the money ought to have been applied ; but the tenant, not having expended the sum of 200/. within the time prescribed by the cove- nant, after the commencement of the action of eject- ment, offered to lay out that sum, or otherwise make compensation for the breach. Lord Erskine's opi- nion, therefore, was, that, as the covenant specified a liquidated sum to be laid out in a given time, and as the landlord could not be injured by the expenditure (p) Reynolds v. Pitt, 19 Ves. 282. Referred to in Radcliffe v. 141, per Lord Eldon. Hill v. Bar- Warrington, 12 Ves. 334. See clay, 18 Ves. 61. also M' Alpine v. Swift, 1 Ball& (q) Hill v. Barclay, 18 Ves. B. 285. Davis v. West, 12 Ves. 62, per Lord Eldon. 475. (?•) Sanders v. Pope, 12 Ves. 302 Of Covenants to repair. [Part III. of that sum, and such ulterior sum as should, from the advance of price in materials and labour, be suf- ficient to put the premises in the state of repair in which they should have been placed at the appointed time, the lessee had a right to the indulgence of the court. It was evidently the opinion of Lord Alvanley, that, in relieving against the strict performance of covenants, a court of equity ought not to interfere, unless the party, by unavoidable accident, fraud, surprise, or ignorance not wilful, had been prevented from executing his covenant literally (s). A similar opinion was entertained by Sir Joseph Jekyll in a previous case (t). This doctrine was not acceded to by Lord Erskine, who, in Sanders v. Pope, held, that the relief need not be confined within the limits marked out by Lord Alvanley, but might be given, at the discretion of the court, even against a wilful breach, where full compensation could be made. It is necessary, however, to state, that the validity of Lord Erskine's judgment has been much ques- tioned, and the case may be looked upon as over- ruled (u). In a subsequent case, closely resembling Sanders v. Pope in its circumstances, in which an express decision on the point was called for, Lord Elclon refused the claim of the tenant to equitable relief, and dissolved an injunction to restrain the (s) Eaton v. Lyon, 3 Ves. 693. («) Bracebridge v. Buckley, 2 (t) Descarlett v. Dennett, 9 Pr. 200 ; Baron Wood, dissent. Mod. 22. And see Reynolds v. Rolfe v. Harris, 2 Pr. 210, n. Pitt, 19 Ves. 143. Chap.X.] Of Covenants to repair . 303 landlord from proceeding in an action of ejectment (w). But this decree, said his Lordship, is not intended to apply to cases of accident and surprise ; the effect of the weather, for instance ; or permissive want of re- pair, the landlord standing by and looking on (#). The result of the determinations on the point ap- pears to be, that although, in general, the court will not relieve against a breach of covenant to repair ; yet, in cases of accident and surprise, &c, and under certain other peculiar circumstances, the relief may be administered. And this assistance was granted by Lord Eldon, where the defendants had insisted that their tenant should repair some premises which had been consumed by fire, pending a treaty with a third party, in the result of which, if completed, those premises would immediately afterwards be pulled down (y). At all events, there is no ground for relieving a tenant whose conduct with reference to his covenant has been gross or ruinous, that the landlord may be placed in the same situation, by afterwards putting the premises in sufficient repair. So, if the premises having been suffered to fall much out of repair, and the landlord making the requisition to repair, the tenant refuses to comply, there is not any pretence for applying to a court of equity (z). (w) Hill v. Barclay, 16 Ves. Waterworks Company, 2 Meriv. 408; 18 Ves. 56. Wadman v. 61.66. Calcraft, 10 Ves. 69. 70. Lovat (z) Hill v. Barclay, 16 Ves. v. Lord Ranelagh, 3 Ves. & B. 24. 404. 406. Cox v. Higford, 1 Eq. (jc) Hill v. Barclay, 18 Ves. 62. Ca. Ab. 121 ; S. C. 2 Vern. 664, (y) Hannam v. South London but confusedly reported. 304 CHAPTER THE ELEVENTH. OF COVENANTS FOR TITLE. Anciently, on the conveyance of lands in fee, or grant of hereditaments incorporeal (a), it was cus- tomary to annex a warranty ; whereby the grantor did, for himself and his heirs, warrant and secure to the grantee the estate so granted. By the feu- dal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift ; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense (b). In later times, however, a dif- ferent system has obtained, by the introduction of, what are denominated, covenants for title ; the in- vention of which is ascribed to Sir Orlando Bridg- man (c). The simple means they presented of carrying into effect the various intentions of parties, and the facility with which they were accommodated to the circumstances connected with titles, soon occasioned their general use in practice. The con- sequence is, the old clause of warranty has totally disappeared. These covenants afford also a more (a) Co. Lit. 365, a ; 366, a. (r) 3 Pow. Con v. 205. (//) 2 Bla. Com. 300. Chap. XI .] Of Covenants for Title. 305 expeditious remedy in case of a defective title, than could be obtained in the case of a warranty. Under the latter, the warrantor was obliged to yield other lands in recompense for those from which the war- rantee was evicted (d) ; but by the former, the cove- nantee is invested with a right of action to recover pecuniary compensation in damages in case of a non- performance. Covenants for title are real covenants, and run with the land at common law ; and the assignee, although not named, may take advantage of them (e); and may sue the executors of the covenantor for a breach (/); or the heir at law, where he is named and has assets by descent ; but otherwise the heir is not liable for a non-performance of his ancestor's agreement (g). And the circumstance of the estate to which the covenant relates being an estate in fee, or for a term of years, can make no difference (^). The covenants for title usually entered into, on a conveyance in fee simple, are five in number. First, That the vendor is seised in fee ; Secondly, That he has good right to convey ; Thirdly, That the pur- chaser and his heirs and assigns shall quietly enjoy ; Fourthly, For indemnity against incumbrances ; and Fifthly, For further assurance. We will take each of (d) Co. Lit. 365, a. 585. 2 Bla. Com. 243. (e) Middlemore v. Goodale, (h) Campbell v. Lewis, in error, Cro. Car. 503 ; S. C. W. Jo. 3 Barn. & Aid. 392 ; S. C. in 406. 1 Rol.Ab.521,(K.)pl.6. C. P. 8 Taunt. 715 ; 3 J. B. Mo. (/) Cro. Eliz. 553. 35. (g) Dyke v. Sweeting, Willes, 306 Of Covenants for Title. [Part III. these covenants separately, noticing the various cases which have from time to time been decided on their general merits and construction, or on the particular language in which they were couched ; and adding, by way of explanation, such comments as the occa- sion may suggest. It is scarcely necessary to repeat (J), that under the acts (Ji) relating to the registration of deeds, &c. in the East and North Ridings of the county of York, the words grant, bargain, and sell, will amount to express covenants for title, unless the same shall be restrain- ed by express particular words. And the provision (/) is extended to deeds, &c. relating to lands within the West Riding, the mortgage or purchase money whereof shall exceed the sum of 50/. SECT. I. OF THE COVENANT FOR SEISIN. I.ForSeisin. First, The covenant for seisin is an assurance to the purchaser, that the grantor has the very estate, both in quantity and quality, which he purports to con- vey (i?i) ; and usually runs in these words : " That he the said (vendor) is now seised to him and his (t) The clauses will be found (7) 6 Anne, c. 35. s. 34. ante, p. 38, 9. (m) Howell v. Richards, 11 (k) 6 Anne, c. 35. s, 30. 8 East, 642. Geo. 2. c.6. s. 35. Chap. XL] For Seisin. 307 heirs, of a good, sure, sole, lawful, absolute, and indefeasible estate of inheritance, in fee simple, of and in the said messuages, &c. hereby released, or otherwise assured, or intended so to be, and every part and parcel of the same, with the appurtenances, without any condition, trust, power of revocation, or of limitation to use or uses, or any other power, restraint, cause, matter, or thing whatsoever, to alter, change, charge, defeat, revoke, make void, abridge, lessen, incumber, or determine the same estate, or any part or parcel thereof." The form here given is without any words of qualification attached to it. The same plan will be pursued with regard to the forms of the other covenants for title noticed in this chapter. If one, under an impression that he is seised of land in fee, or possessed of a term of years, aliens, and covenants that he is lawfully seised, or possessed, or that he hath a good estate, or that he is able to make such an alienation, &c, when in truth the estate is in some other at the time, the covenant is broken as soon as it is made(V). So, if one bargains and sells land by deed indented to B., and before the deed is enrolled grants the same land to C, and covenants that he is seised of a good estate in fee ; the subsequent enrolment of the deed will work a breach of the covenant (0). So, where one cove- nanted that he was seised of Blackacre in fee simple, when in fact it was copyhold land in fee, according (») Northcote v. Ward, Dy. Cro. Jac. 304 ; S. C. 9 Co. 60, b. 303, a. Salman v. Bradshaw, (o) Shep. Touch. 170. x 2 308 Of Covenants for Title. [Part III. to the custom ; the court held that the covenant was (p) broken ; and the jury were directed to give damages in their consciences, according to the rate at which the county valued fee simple more than copyhold land (a). Debt was brought on a bond for performance of covenants, in a conveyance of a house, &c, where there was a covenant, that the vendee should have liberty to draw water at a well adjoining the house, and another, that the vendor was seised in fee of the messuage, &c. ; and a breach was assigned, that the defendant was not seised in fee of the well, &c. Upon demurrer, it was held, that the covenant for seisin did not extend to the well, it being only, that the plaintiff should have liberty to draw water there (r). In assigning a breach of this covenant, the plain- tiff need not show of what estate the covenantor was seised, but it will be sufficient to allege in the direct negative, that the party was not seised in fee (s). This covenant, and the one next noticed, viz. that (p) In both editions of Noy's 321; S. C. 1 Vent. 26. 44; 1 Reports the word not is inserted Sid. 429 ; and 2 Keb. 505. 543. in this place, apparently by mis- 569. Rhodes v. Bullard, 7 East, take. 116; S. C. 3 Smith, 173. (g) Gray v. Briscoe, Noy, 142. (s) Glinister v. Audley, T. Ray. (r) Butterfield v. Marshall, ] 4 ; S. C. nom. Glimston v. Aud- Lutw. 192. Nels. fol. ed. And ly, 1 Keb. 58. Muscot v. Ballet, see Pomfret v. Ricroft, 1 Saund. Cro. Jac. 369. Chap. XL] For Seisin. 309 the party has good right to convey, although they are connected, generally of the same import and effect, and directed to one and the same object, are some- what improperly called synonymous covenants (t). They constitute two separate and independent covenants ; for although if the vendor be seised in fee, he has power to convey ; yet the converse of this proposition does not hold ; for a person may have power to convey, though not seised in fee (u). Where brevity or economy is an object, the covenant for seisin may be omitted. Indeed that covenant seems useless where the party covenants that he has good right to convey in fee. Where the sale is under a power, the covenant for seisin is invariably re- jected, and in its place is substituted a covenant, that the power is subsisting, and not exercised or revoked, &c. The like omission is made, where a tenant in tail conveys to a person to make him tenant to the praecipe, for suffering a common recovery, to the use of a purchaser in fee. In this place it is fitting to notice, that, where a conveyance is made to A., to uses, the vendor's covenants for title should be entered into with A. ; for as soon as the various uses come in esse, they are served out of his seisin, in favor of the cestuisque use ; who, by virtue of the statute of uses, 27 Hen. 8. c. 10., which annexes or transfers the seisin or estate (t) Nervin v. Munns, 3 Lev. (u) 4 Cru. Dig. 404. s. 46. 46. Howell v. Richards, 1 1 East, Trenchard v. Hoskins, Lit. Rep. 642. 63. 65. 205. 310 Of Covenants for Title. [Part III. to the use, become assignees to all intents, as if the conveyance had been originally made to them. And as they are then owners of the land, they may of course take advantage of all covenants running with the land. SECT. II. OF THE COVENANT THAT THE VENDOR HAS GOOD RIGHT TO CONVEY. II. For good Next comes the covenant that the party has good right to con. • J t t convey, in this form : " And also that the vey. ° J said (vendor) now hath in himself good right, or full power, and lawful and absolute authority, by these presents to grant, release, or confirm the said mes- suage, &c. hereby released, or otherwise assured, or intended so to be, and every part and parcel of the same, with the appurtenances, unto and to the use of the said (purchaser), his heirs, appointees, and as- signs, for ever, and according to the true intent and meaning of these presents." A covenant that a vendor has good right to convey, is not confined to his title to the lands, but relates as well to his capacity to grant. Where, therefore, a husband and wife, seised in right of the wife, con- veyed to a purchaser, with a covenant by the hus- band that they had good right to assure the lands ; the incapability of the wife to convey, in conse- Chap. XL] For good right to convey. 31 1 quence of her infancy, was holden to be a manifest breach (v). Immediately on the execution of the deed, if the covenantor has not good right to convey, his cove- nant is broken (w) ; and so long as the obstruction in the way of his right to grant remains, there is a continuance of the breach. An action may instant- ly be commenced by the covenantee, without waiting for a disturbance ; since an eviction does not consti- tute the breach, but is the consequential damage arising therefrom (a). It is not like a covenant to repair, for a breach of which, damages may be reco- vered now, and again hereafter, and so Mies quoties ; but after one breach has been assigned, and a reco- very had thereon, the party cannot again recover (j/). The breach may be assigned in terms as general as the covenant, as, that the party had not full power and lawful authority to convey ; and the declaration need not show what person had right or estate in the premises, by which it may appear to the court that the covenantor had not such authority to con- vey ; but it is incumbent on the defendant to show what estate he had in the land at the time of the conveyance, by which it may appear to the court that he had such full power (z). (v) Nash v. Aston, Skin. 42 ; (x) King v. Jones, 5Taunt.426. S. C. T. Jo. 195. Chamberlain (y) Kingdon v. Nottle, 1 Mau. v. Ewer, 2 Bulstr. 12. Goodman & Selw. 365 ; S. C. 4 Ibid. 53. v. Knight, 1 Rol. 84; S. C. Cro. (z) Bradshaw's case, 9 Co. Jac. 358. 60, b. ; S. C. nom. Salman v. (w) Raynolls v. Woolmer, Bradshaw, Cro. Jac. 304 ; Jenk Frecm. 41. Cent. 305, case 79. ;j 1 2 Of Covenants for Title. [Part III. SECT. 111. OF THE COVENANT FOR QUIET ENJOYMENT. 1. Where the The covenant for quiet enjoyment is of a mate- unqualified, rially different import, and directed to a distinct ob- ject. It is an assurance against the consequences of a defective title, and of any disturbances thereupon. For the purpose of this covenant and the indemnity it affords, it is immaterial, where framed in general terms, in what respects, and by what means, or by whose acts, the eviction of the grantee takes place, so that he be lawfully evicted : the grantor, by such his covenant, stipulates to indemnify him at all events (a). It runs thus : " And also that it shall and may be lawful to and for the said (purchaser), his heirs and assigns, immediately upon and after the execution of these presents, and from time to time and at all times for ever hereafter, to enter into and upon, have, hold, use, occupy, possess, and enjoy the said messuages, &c. hereby released, or otherwise assured, or intended so to be, and every part and parcel of the same, with the appurtenances, and to receive and take the rents, issues, and profits thereof, and of every part and parcel of the same, without any let, suit, trouble, eviction, ejection, expulsion, interruption, hindrance, or denial whatsoever, of, from, or by, him the said (vendor), or his heirs, or any other person or persons whomsoever." An implied (a) Howell v. Richards, 11 East, 642. Norman v. Foster, 1 Mod. 101. Chap. XL] For quiet Enjoyment. 313 covenant for quiet enjoyment of leaseholds arises on the words grant, demise, &c. The law relating to this subject will be found in a prior page (b). A general covenant for quiet enjoyment was in earlier times holden to extend to tortious evictions or interruptions (c) ; but this doctrine was never free- ly acquiesced in ; and a different rule is now esta- blished; so that at present, when we speak of a cove- nant providing against the acts of all men, it is to be understood, of all men claiming by title ; for the law will not adjudge that the wrongful acts of strangers are covenanted against. Hence, if one who has no right ousts or disseises a purchaser, he shall not have an action of covenant against the vendor ; the reason being, that the law has already furnished the means of redress, by giving the injured party an action of trespass against the wrong doer (d). As far back as the time of Hen. VI. we find a case involving this very point. It was said (e), that if a lease be made for a term of years by deed, so that the lessor is charge- able by writ of covenant, if a stranger who has no (6) Ante, p. 46, et seq. ] Brown!. & Gold. 23; S. C. (c)Mountfordv.Catesby,3Dy. Mo. 861 ; 3 Bulstr. 204 ; 1 Rol. 328, a. pi. 8 ; S. C. 3 Leon. 43. 397. Crosse v. Young, 2 Show. Anon. Sty. 67. Anon. Lofft, 460. 425. Hamond v. Dod, Cro. Car. Anon. 1 Freem. 450. pi. 612. 5. Nokes's case, 4 Co. 80, b. Shep. Touch. 166. 170. and the Baylie v. Hughes, W.Jo. 242. case cited in the margin of Dy. Cowper v. Pollard, W. Jo. 197. 328, a. 4 Jac. Nicholas v. Pullin, 1 Lev. 83 ; (d) Hayes v. Bickerstaffe, S. C. 1 Keb. 379. 380. 413. Vaugh. 118. Lucy v. Leviston, Holms v. Seller, 3 Lev. 305. Freem. 103 ; S. C. 3 Keb. 163. (e) 22 H. 6. 52. [B]. pi. 26. Tisdale v. Essex, Hob. 34; S. C. 314 Of Covenants for Title. [Part III. right ousts the termor, yet he shall not have a writ of covenant against his lessor. But if he to whom the right belongs ousts the termor, then he shall have covenant against his lessor. And this was followed by another decision, to the same end, in the reign of Hen. VIII. ; where it was contended, that a writ of covenant would not lie against a lessor on an eviction of the lessee by tort ; because no mischief arose to the lessee therefrom, inasmuch as trespass lay against the evictor; but when the ouster was by one having title paramount, against whom the lessee had no remedy, then covenant could be supported against the lessor ; quod fuit concessum per plu- sieurs (f). Nor will a collateral warranty entered into by a third person charge him to a greater ex- tent (g). And even if a party actually recovers without title, through the negligence of the cove- nantee, he cannot sue the covenantor for this dis- turbance. This happened in a case, where dower was recovered, after bar by fine and nonclaim, with- out any exception to it which might have been taken by the covenantee ; as Jhe eviction was clearly unlawful, the covenantor was not charged with a breach. It is apprehended, that the decision would have been the same, although the covenant had not been confined to lawful evictions (/?). Lord Chief Justice Vaughan (i), adverting to the (/) 26 H. 8. 3. [B]. 11. Fitz. (A) Allen v. Thorn, Cited 1 N. B. 145. K. Keb. 379. 1 Vent. 176. (). A covenant for quiet enjoyment, without any im- pediment from the defendant, his heirs or assigns, or any other person, and that clearly acquitted and exonerated of and from all former and other grants, &c. rents, rents-charge, arrears of rent, statutes, &c, charges, and incumbrances whatsoever, was in this case said to be broken by the premises being charge- able with an annual quit-rent, payable to the lord of that manor, and incident to the tenure of those lands; although the plaintiff experienced no molestation for any arrears of that rent payable before the making the conveyance to him ; for the vendor having under- taken that the purchaser should have the land dis- charged of all rents, the quit-rent, being a rent, was clearly within the terms of the covenant (?/). The circumstance of the premises being simply charge- able with a quit-rent, would not, according to Lord Cowper's opinion, entitle the purchaser to an action. The above case at first seems repugnant to that pro- position ; but as it appears that the defendant re- (x) Hamington v. Rydear, 1 (y) Hammond v. Hill, Com. Leon. 92. S. C. Mo. 249. pi. 180. See Mountford v. Catesby, 393; 1 And. 162. pi. 208 ; 10 3 Leon. 44, argo. Millway v. Co. 52, a.; Ow. 6, nom. Have- Medman, 2 Sid. 166. rington's case. 334 Of Covenants fur Title. [Part III. joined that there was no molestation for any arrears of the rent due prior to the conveyance, we may perhaps infer, that there was a molestation for an ar- rear accruing in the vendee's own time ; and by this construction reconcile the judgments. To an action on a covenant (in an assignment of a lease) for quiet enjoyment, free and clear of and from all arrears of rent, assigning as a breach that the rent was in arrear and unpaid, it is sufficient for the defendant to plead, that he left so much money in the hands of the plaintiff, ed intentione qudd solve- ret to the lessor in discharge of what rent was then in arrear (z). A qualified covenant of this description usually provides against all incumbrances whatsoever, " at any time or times heretofore, and to be at any time, and from time to time, hereafter, had, made, done, committed, occasioned, permitted, or suffered by the said (vendor), or his heirs, or any person or persons rightfully claiming or to claim by, from, through, under, or in trust for him, them, or any or either of them, or by his or their, or any or either of their acts, means, consent, default, privity, or procure- ment." The word acts signifies something done by the person against whose acts the covenant is made ; and the word means has a similar import ; something pro- (z) Griffith v. Harrison,. 4 Mod. 249.; S. C. 1 Salk. 196 ; Skin. 397, nom. Griffin v. Harrison. Chap. XI.] For Indemnity against Incumbrances. 335 eeeding from the person covenanting. Accordingly, where there was a covenant by a lessor, that the lessee should hold the premises without any lawful let, suit, interruption, &c. by the lessor, his execu- tors, &c, or by or through his or their acts, means, right, &c. ; and the under-lessee, in ignorance of a clause prohibiting the exercise of a business on the premises, (a right of re-entry on such event being reserved to the landlord,) underlet to a tenant who commenced the business of an auctioneer, thereby incurring a forfeiture, of which the original lessor took advantage ; as the eviction was not produced by any thing proceeding from the covenantor, but from the person in possession of the premises, it was not shown that a breach of the covenant contained in the lease had been committed, and judgment was given for the defendant («). And as to the word default : Where a seller cove- nanted for quiet enjoyment, without any action, &c, or interruption, by the seller or those claiming from him, or by, through, or with, his or their acts, means, default, privity, consent, or procurement ; an arrear of quit-rent, which the purchaser was obliged to dis- charge, although not accruing while the vendor was owner of the premises, was held to amount to a breach of the covenant ; for if it happened to be in arrear in his lifetime, it was a consequence of law, that it was by his default, in respect of the party with whom he covenanted to leave the estate unincumbered. It (a) Spencer v. Marriott, 1 Bam. & Cres. 457 ; S. C. 2 Dow. & Ry. 665. 33G Of Covenants for Title. [Part III. was his default that it was left unpaid (b). A dis- tinguished writer (c), before quoted, remarks, that the reader should be cautious how he applies this decision to cases arising in practice, as it may lead him to draw conclusions not authorized by prior decisions. It was argued by the counsel for the vendor, and apparently on very solid grounds, that to make the vendor liable to the arrear of this rent, under his covenant, would be tantamount to a deci- sion that the covenant, although limited, should ex- tend to the acts of all the world. The clear inten- tion of the parties was, that the vendor should cove- nant against his own acts only ; and yet it should seem that the argument of the court would apply as well to a mortgage, or any other incumbrance, created by a prior owner, as to an arrear of quit- rent, in payment of which a former occupier made default. We should be careful (continues he) to distinguish the foregoing case from that (d), where the lessor, reciting that he was seised of an estate of freehold and inheritance in the estate, covenanted for quiet enjoyment against himself, his heirs, &c, or any other person or persons lawfully claiming by, from, or under him, &c, or by or through his, their, or any of their acts, means, default, or procurement. The lessees were evicted by the remainder-man under a settlement, and it appeared that the lessor could have obtained the fee-simple by suffering a re- covery. Lord Rosslyn considered it to be clear, that (6) Howes v. Brushfield,3East, (d) Lady Cavan v. Pulteney, 491. 2 Ves. jun. 544; 3 Ves. 384. (c) Sugd. Vend, and Purch. Sugd. Vend, and Purch. 552, 3. 552. 6th ed. 6th ed. Chap. XI.] For indemnity against Incumbrances. 337 on eviction by any person claiming paramount to the lessor, they must, upon that eviction, have under the covenant in the leases satisfaction from his assets. l The ground of this opinion must have been, that the eviction was owing to the default of the lessor, in not suffering a recovery. He assumed to be te- nant in fee, and the nature of his title rested in his own breast ; whether the default arose from fraud or negligence was to the lessees immaterial. And with regard to the words means, title, or pro- curement : Where a husband purchased lands to him and his wife and the heirs of the husband, and afterwards made a lease, and covenanted for quiet enjoyment, without any impediment, expulsion, or interruption, by himself, his heirs, executors, or ad- ministrators, or by or through any other, by his means, title, or procurement ; the entry of the widow after his death was deemed to be within the covenant; be- cause, although in point of estate the widow was in by the vendor ; yet it was by means of the purchase and the procurement of the husband ; for if the hus- band had not procured the purchase, she would not have had any estate (e). So, a recovery in dower by the widow of a tenant in fee, who had made such a lease, would be a breach of the covenant ; because she would claim by his means, i. e. the marriage. Yet the recovery in dower by the mother of the tenant in fee would not support an action ; as she would not claim by his means, but by act of law, and his (e) Butler v. Swinerton, Palm. 333. Sec Twiford v. Warcup, 339 ; S.C.Cro. Jac. 657 ; Godb. Cited in Musgrave v. Dashwood, 338 Of Covenants for Title. [Part III. father. So, if one by whom an estate tail is pur- chased, leases, and covenants as above, the covenant will be broken by an ouster of the lessee by the issue in tail ; because, the estate tail being origi- nally created by the ancestor, the descent to his issue is by his means. But should the issue make such lease, and covenant, and the issue of the issue enter, no breach will thereby be occasioned ; the issue not being in by his means, but by descent, which is an act of law, and performam dotii (g). If a lessee subject to a condition for re-entry on nonpayment of rent underlets, and covenants for quiet enjoyment, without the impeachment of him or of any other occasioned by his impediment, inter- ruption, means, procurement, or consent ; his default in paying this rent, by means whereof the under- lessee is evicted, is clearly a breach (/*). The words permitting and suffering do not bear the same meaning as, knowing of and being privy to : the meaning of the former is, that the party shall not concur in any act over which he has a control. This we find in a case reported a short time since (i). A trustee to prevent dower, on a grant of a term of 500 years by the owner, joined in the instrument, and covenanted that he had not at any time or times 2 Vern.45. 63; S.C. 1 Eq.Ca. (h) Stevenson v. Powell, 1 Ab. 25. pi. 5 ; 120. pi. 11 ; no- Bulstr. 182. ticed by Lord Hardwicke, 2 Ves. (i) Hobson v. Middleton, 6 634. 638. Barn. & Cres. 295, See also (g) Butler v. Swinerton, tibi Anon. 3. Dy. 255, a. pi. 4. supra. Chap. XL] For indemnity against Incumbrances. 339 theretofore made, done, or committed, or executed, or knowingly or willingly permitted or suffered any act, &c. whereby the premises were, could, should, or might be, impeached, charged, incumbered, or affected in title, charge, estate, or otherwise how- soever. It appeared that the premises had been previously conveyed to one Scholes, and that the defendant was a party to the deed. Two breaches were assigned : First, that the defendant had com- mitted an act by this conveyance, whereby the pre- mises were impeachable, &c. : the second was, that he had made, done, &c. and knowingly and willingly permitted and suffered to be done, certain other acts whereby, &c, that is to say, that he did execute a certain deed, &c, and did suffer and permit W. T. H. (his cestui que trust and owner) to execute the said indenture, whereby the premises were impeachable, &c. The defendant, as to so much of the second breach as related to permitting and suffering W.T.H. to execute, protesting that he did not permit him, for plea said, that he could not prevent his executing it. As far as the execution of the deed by himself was concerned, he admitted the breach ; and the court determined, that the plaintiff was entitled to recover on that breach ; and were of opinion, that if permit- ting and suffering, according to the above meaning given to those words, applied only to that which the defendant could prevent, it was clear, that his con- sent in this case was not a breach of the covenant. It had been suggested, that, perhaps, the purchaser might have refused the conveyance, unless it were made with the consent of the defendant; but the court declined to raise that point; inasmuch as the z 2 340 Of Covenants for Title. [Part III. replication did not allege, that the consent of the de- fendant was an ingredient in the transaction neces- sary to the acceptance of the conveyance ; and Mr. Justice Holroyd observed, that if the deed conveying to Scholes would operate as effectually, if executed by W. T. H. without the defendant's permission, as with it ; then the permission really had nothing to do with the deed. The covenant extended to such per- missive acts only as had, through the permission, an operative effect in charging the estate. From a case in Douglas (Je), where an adminis- trator assigned, in a bona fide manner to the plaintiff, a supposed mortgage for 1200/., which was found among the intestate's papers, and covenanted that neither the said intestate nor the administrator had done any act to incumber the mortgaged estate, it would appear, that the fact of the mortgage being forged, of which circumstance the administrator was ignorant, would not be a breach of his covenant. SECT. V. OF THE COVENANT FOR FURTHER ASSURANCE. l. Object, The fifth covenant, for further assurance, is one of covenant. considerable value to the purchaser. It relates both to the title of the vendor, and to the instrument of conveyance to the vendee ; and operates as well to (k) Bree v. Holbech, 2 Dougl. 654, a. Chap. XL] For further Assurance. 341 secure the performance of all acts for supplying any defect in the former, as to remove all objections to the sufficiency and security of the latter. The follow- ing form may be safely adopted in practice : " And moreover, that he the said (vendor), and his heirs, and all persons whosoever lawfully or equitably and rightfully claiming, or to claim, any estate, right, title, trust, charge, or interest, at law or in equity, of, in, to, out of, or upon, the said messuages, &c. hereby released, or otherwise assured, or intended so to be, or any of them, or any part thereof, by, from, under, or in trust for, him or them, [exceptions, if any, to be here introduced,] shall and will from time to time, and at all times hereafter, upon every reasonable re- quest, and at the costs and charges in all things of the said (purchaser), his heirs, appointees, or assigns, make, do, acknowledge, levy, suffer, execute, and perfect, or cause or procure to be made, done, acknowledged, levied, suffered, executed, and per- fected, all such further and other lawful and reason- able acts, deeds, devices, conveyances, and assu- rances in the law whatsoever, either by fine or fines, with or without proclamations, common recovery or recoveries, deed or deeds, enrolled or not enrolled, release, confirmation, or other assurance whatsover, for further, better, more perfectly, lawfully, and ab- solutely, or satisfactorily, granting, releasing, con- firming, or otherwise assuring, the said messuages, &c. hereby released, or otherwise assured, or intended so to be, and every part and parcel of the same, with the appurtenances, unto and to the use of the said (purchaser), his heirs, appointees, and assigns for ever, according to the true intent and meaning of 342 Of Covenants for Title. [Part III. these presents, as by the said (purchaser), his heirs, appointees, or assigns, or his or their counsel in the law, shall be reasonably devised or advised and re- quired, and be tendered to be made, done, and exe- cuted." 2. What a The term reasonable act, means such an act as the law requires ; and if it be unnecessary, it is not a reasonable act, or one which would be required by law. A refusal, therefore, to do something, which, if executed, would be totally useless and nugatory, will not charge the covenantor with a breach of his covenant to do all lawful and reasonable acts, &c. for further assurance. For example : Certain lands had been demised to trustees, upon trust to raise 1100/. by sale of the same premises, to be paid to the intestate of the plaintiffs ; with a covenant for further assurance, as above. The breach assigned was, the defendant's refusal to direct the trustees to raise that sum, and pay the same to the plaintiffs ; but the court were strongly against the plaintiffs, holding,, that such direction was quite unnecessary on the defendant's part to authorize the trustees to raise the money, his direction for that purpose being irrelevant to the covenant on which the declaration was framed, and that even had the request been made, it would not have been obligatory (/). Where husband and wife conveyed, and covenanted to make further assurance within seven years, and the wife died within the seven years, and her right {I) Warn v. Bickford, 9 Price, 43. See Pudsey v. Newsam, Yelv. 44. Chap. XI.] Fur further Assurance. 343 right descended to an infant of such tender age as to render the performance of the covenant impossible ; the court were clearly of opinion, that the death of the wife in the infancy of her son, was the act of God; and that it was the plaintiff's fault that he did not demand the assurance in the lifetime of the wife(w). In assigning a breach much particularity is requi- site. Where the defendant covenanted, upon request of the testator, his heirs or assigns, to make further as- surance to the testator, his heirs and assigns ; and the breach assigned was, that the plaintiff, as executrix, requested the defendant to execute a release between the defendant, the plaintiff, and S.A., for further assuring the premises, to the uses mentioned in the deed, which the defendant refused ; without show- ing that the plaintiff claimed an interest, or to whose use the release was to enure, or why S. A. was a party to it : on special demurrer, the breach was con- sidered badly assigned (n). This may lead us to consider, what acts may be 3. What required under this covenant. The rule in equity re q U ired. is, that if a bad title be sold with a covenant for further assurance, the vendor will be decreed to con- vey to the purchaser such title as he (the vendor) shall afterwards obtain, even although he acquire it by purchase for a valuable consideration. Thus, where a purchaser of crown lands at the time of the then late wars, having sold part to the plaintiff, and cove- Cm) Nash v. Aston, T. Jo. (n) Kingdon v. Nottle, 1 M. 195 ; S. C. Skin. 42. & Selw. 355. 344 Of Covenants for Title. [Part III. nanted to make further assurance, on the king's restoration, for 300/., had a lease for years made to him under the king's title ; he was decreed to assign his term in the part he sold (a). The levying a fine is included under a covenant to do all lawful and reasonable acts for further as- surance (p). The removal of a judgment or other incumbrance may likewise be called for (f). It would seem also, that the purchaser may obtain a recovery from the vendor ; the right, however, not extending to bind his issue in tail or remainder-men ; nor to enforce the vendor to procure a recovery by a te- nant in tail from whom the title was derived (r). A mortgagor under his covenant for further as- surance is not compellable to release his equity of redemption; nor the mortgagee entitled to a war- ranty in such further assurance (i). If a purchaser, with a covenant for further assur- ance, on a sale by him of the greater part of the (o) Taylor v.- Debar, (27 & 28 ney v. Curteis. Pudsey v. New- Car. 2.) 1 Ch. Ca. 274 ; S. C. sam, Yelv. 44 ; S. C. 1 Brownl. 2 Ch. Ca. 212; 1 Eq. Ca. Ab. &Gold. 84; Mo. 682. Middle- 26, (F.) pi. 2. See Seabourne v. more v. Goodale, Cro. Car. 503. Powel, 2 Vern. 11. Langford v. 505 ; S. C. Sir W. Jo. 406. 16 Pitt, 2 P. Wms. 630. Ves. 366, 7. (p) King v. Jones, 5 Taunt. (q) King v. Jones, ubi sup. 427; S. C. 1 Marsh. 107; 4 (r) 1 Prest. Abst. 257. Maule & Selw. 188. Goldneyv. (s) Atkins v. Uton, 1 Ld.Raym. Curtise, 1 Bulstr. 90; S. C. Cro. 36 ; S. C. nom. Atkin v. Urton, Jac. 251, nom. Boulney v. Cur- Comb. 318. teys; S, C Mo. 810, nom. Bold- Chap. XL] For further Assurance. 345 estate, is constrained to give up the title deeds, without retaining any to make out his title to the part unsold ; it seems, he may require from the par- ties to the original sale, a duplicate of the convey- ance to be kept by him, with an indorsement that it is only a duplicate. An application of this kind was granted, where an estate was sold by decree of the Court of Chancery, for payment of the testator's debts and legacies ; but the matter being moved again by the other side, the order was discharged, on the ground that the decree being once executed, the court had no more to do in it (t). As the estate is bound by a specific covenant for further assurance, a purchaser from a vendor, before his (the vendor's) bankruptcy, becomes entitled to that interest, which, by the bankruptcy and operation of law, vests in the assignees. Accordingly, where a tenant in tail makes a mortgage in fee, with covenant for further assurance, and becomes bankrupt, the as- signees under his commission having, by virtue of the statute 21 Jac. 1. c. 19. s. 12., the fee-simple absolutely vested in them by the bargain and sale, are bound by this covenant, and will be decreed to redeem the mortgage, or stand foreclosed, and exe- cute proper conveyances of the mortgaged premises to the plaintiff and his heirs (»).. And, on the same principle, the heir of a mortgagor will be decreed (t) Napper v. Lord Allington, Dick. 759. Ex parte Wills, 2 1 Eq. Ca. Ab. 166. pi. 4. Cox, 233 ; S. C. 1 Ves. jun. 162. (u) Edwards v. Applebee, 2 Sec Beckdem. Hawkins v. Welsh, Bro. C. C. 652, n. Pyc v. Dau- 1 Wils. 276. buz, 3 Bro. C. C. 595 ; S. C. 2 346 Of Covenants for Title. [Part III. to perform his ancestor's covenant. The premises in question, which were in fact copyhold estate, had been mortgaged to the plaintiff's testator as free- holds ; and the indenture contained covenants by the mortgagor, that he was seised in fee, had good right to convey, and for further assurance. The bill was filed against the customary heir of the mort- gagor, an infant, praying, that he might be decreed to surrender the estate to the use of the plaintiff, and for an account, and for foreclosure in default of pay- ment. The Master of the Rolls was clearly of opi- nion, that the covenant was a contract for a valuable consideration affecting the land, and would affect the heir ; but he would not direct the infant heir to surrender while an infant (v). It was formerly holden, that, under an agreement to assure land by such reasonable assurance as by the plaintiff should be advised and required, the party was not bound to make the assurance with covenants, although they were ordinary and reason- able; for the agreement was to make reasonable assurance, and the covenants amounted to a colla- teral security only, without constituting part of the assurance (w). Since these decisions, the law has experienced a change ; and it now appears, that if a man engages to make any such reasonable as- surance as counsel shall advise, usual covenants (v) Spencer v. Boyes, 4 Ves. Yelv. 44 ; S.C.I Brownl. & 370. Gold. 84 ; Mo. 682. Coles v. (w) Stanyroydev.Locock,Cro. Kinder, Cro. Jac. 571. Wye v. Jae. 115. Pudsey v. Nevvsam, Throgmorton, 2 Leon. 130. Chap. XL] For further Assurance. 347 may be inserted; for the covenant, it is said, shall be so understood ; yet there must not be a warranty in it. Some, indeed, have held that there may be a warranty against the covenantor himself ; but it is questionable whether that proposition will hold (#). In qualified covenants for title, a provision is usually introduced, by which many of the difficulties for- merly existing on this subject are removed. The clause alluded to runs thus : "So as such further assurances, or any of them, shall not contain or im- ply any other or more general covenants or war- ranty, on the part of the person or persons who shall be requested to make or execute the same, than for the acts, deeds, and defaults, of himself, herself, and themselves, respectively, and his, her, and their heirs, executors, and administrators ; and so as the person or persons who shall be requested to do such acts, or make such further assurances, shall not be compelled or compellable, for the purpose of making or doing the same, to go or travel from his, her, or their then dwelling or place of abode, or respective dwellings or places of abode." Still it seems, that if one is bound to make a feoffment or any other specified assurance, a naked deed of feoff- ment, &c, without warranty or covenants, must be tendered ; otherwise the covenant will not be bro- ken by the party's refusal or neglect to execute it GO- Considerable doubt exists as to the right of a pur- (.t) Lassells v. Catterton, or Keb. 685. Chatterton, 1 Mod. 67; S. C. (y) Shep. Touch. 168. T. Raym. 190; 1 Sid. 467; 2 348 Of Covenants for Title. [Part III. chaser to a covenant for the production of title-deeds, under the vendor's covenant for further assurance. Two cases very recently came before the Court of Chancery, in which the point was canvassed, but left undecided, in consequenee of the judgment applying itself to the particular facts of each case, without regard to the general question. In one of these suits (z), before Lord Gifford at the Rolls, the docu- ments, with respect to which the interference of the court was prayed, viz. certain books of account, were held not to be connected with the title of the lands, but wanted merely to establish a collateral fact ; and inasmuch as they did not constitute part of the vendee's title ; and as the vendor could only produce them by calling on others, subsequently interested, to produce them; the covenant created no obligation, in respect of which the documents should either be delivered to the purchaser, or deposited in a place of security : It was, therefore, quite wild to say, that, the purchaser had a right, under the covenant for further assurance, to a covenant for the production of the books and accounts. The other case (a) appeared about the same time, before the Vice-Chancellor, Sir John Leach. The defendant had sold to the plaintiff a piece of land, and covenanted in the usual way for further assur- ance ; the land having formed part of a larger estate belonging to the defendant. No title-deeds relating to it were ever delivered to the plaintiff, nor was (2) Hallett v, Middleton, 1 Stu. 533. A note of this case Russ. 243. will also be found in 1 Russ. 259. (a) Fain v. Avers, 2 Sim. & Chap. XL] For further Assurance. 349 there any express covenant entered into for the pro- duction of them. The plaintiff sold his piece of land ; and the bill prayed, that the defendant might be compelled to produce, or execute a covenant to pro- duce, the title-deeds in question, to enable the plain- tiff to make a good title. On this form of the prayer judgment seems to have been given. The Vice- Chancellor said, that whatever doubt there might be, whether, under a covenant for further assurance, a new covenant for production might be required ; yet the bill stating the resale of the property, and pray- ing, in the alternative, either a new deed of covenant to produce, or the actual production of the deeds ; and the deeds being the root of the plaintiff's title, and in that sense a sort of common property (b) ; he was strongly inclined to think that the plaintiff had an equity to that extent. His Honor, however, still retained his doubt whether the covenant to produce could be required. On a covenant with J. S. to make such assurance as his counsel shall advise, it is required, that the counsel shall give his advice to J. S., and that J. S. shall give notice of the assurance ; for otherwise the covenantor cannot know the counsel or his advice (c). So, on a covenant to seal such a release as A. B.'s counsel shall advise, A. B. must procure his counsel to draw the release, and then tender it to the cove- (6) See Barclay v. Raine, 1 298 ; S. C. nora. Stafford's case, Sim. & Stu. 449. Mo. 595, in which a difference (c) Bennet's case, Cro. Eliz. 9. is taken between the words ad- Higginbottom's case, 5 Co. 19, b. vise and devise. Blicke v. Dy- Stafford v. Bottorne, Cro. Eliz. moke, 9 J. B. Mo. 215. 350 Of Covenants for Title. [Part III. nantor for execution (d) : and the counsel is the only person who can devise the assurance : the co- venantee himself, although learned in the law, can- not ; for if he might, then it would be no plea to say, consilium non dedit advisamentum (e). On the other hand, if one binds himself to make to another, such sufficient release and discharge as by J. S. shall be thought meet; inasmuch as J. S. is a stranger to the condition, and the condition is for the benefit of the obligor, and the performance thereof a saving of his bond, he takes upon himself to perform it at his peril ; and, therefore, he ought to procure J. S. to devise and direct the assurance (/). In like manner, if one covenants to execute such a deed as shall satisfy A. B.'s counsel, the duty of tendering the deed to the counsel of A. B. is imposed on the covenantor (g). And where the party is bound to make a sure, sufficient, and lawful estate in certain lands, by the advice of J. D.; if he make an estate according to the advice of J. D., be it sufficient or not, lawful or not lawful, it will amount to a good performance of the condition of his bond (h). On a covenant by A. with B. to make further (d) Baker v. Bulstrode, 2 Lev. Cro. Eliz. 716. Atkinson v. Rolfe, 95 ; S. C. 1 Vent. 255 ; 1 Mod. 1 Leon. 105. 1 04 ; 3 Keb. 273. T. Ray. 232. ( 9 ) Baker v. Bulstrode, 2 Lev. (e) Bennet's case, ubi sup. 95 ; S. C. 1 Vent. 255 ; 1 Mod. More v. Roswell, Cro. Eliz. 297; 104 ; T. Ray. 232 ; 3 Keb. 273. S.C. Rosewell'scase, 5 Co. 19, b. Cole's case, Cro. Eliz. 97. (/) Lamb's case, 5 Co. 23, b. ; (h) Lamb's case, sup. S. C. nom. Lamb v. Brownwent, Chap. XL] For further Assurance. 351 assurance at the costs of the latter, A. ought to give him notice what sort of assurance he will make ; and then B. ought to tender the costs; and then A. ought to make the assurance. But on a covenant that A. shall make a new demise to B., at the costs of B., or any particular assurance specified in the covenant, B. ought first to tender the costs, and then A. ought to make the assurance ; for in the former case, B. cannot know what costs will be sufficient to tender, before he knows what sort of assurance A. will make; but in the latter case, by the inspection of the cove- nant itself, he will know what sort of assurance will be made (i). In this respect, the report of Coke differs from the rest : It is there said, that it is all one, when the covenant is general, and when it is particular, as, to make a feoffment : the covenantor ought to do the first act, viz., shew what manner of feoffment he will make, either by deed-poll or by indenture, &c. A fine required under a covenant for further assurance, where there is no provision respecting the expenses, must be levied at the costs of him who is to have the benefit of it (k). A variation in words, but not in substance, be- tween the indenture presented for execution, and the covenant for assurance, (as if the party had cove- nanted to assure all his lands in D., and the deed (i) Heron v. Treyne, 2 Lord Hollins v. Connard ; S. C. nom. Raym. 750. Sleer v. Shalecroft, Halling's case, 5 Co. 22, b. ; Holt, 177; S. C. nom. Steer v. S. C. nom. Hailing v. Comand Shalecroft, 12 Mod. 400. Hal- Ow. 157. Anon. Mo. 22. pi. 76. lings v. Connard, Cro. Eliz. 517 ; (£)Goldney v. Curtise,l Bulstr. S. C. Mo. 457 ; Ibid. 454, nom. 90. 352 Of Covenants for Title. [Part III . tendered particularly specify by name all the lands in D.,) will not justify a refusal by the covenantor to execute such an instrument (/). An unlettered man, under a covenant to make a deed, is not obliged to seal and deliver any writing tendered to him, unless somebody be present, who can read the deed to him, should he require it ; and if the deed be in Latin, French, or other language, which he cannot understand, and he demand that some one should read and interpret the writing to him, and no one happen to be present that can read and expound the tenor of the same in an intelligible lan- guage, he may refuse to deliver the instrument. So it is, although the man can read ; yet if the deed be endited in Latin, French, or other such language as he cannot comprehend ; and if he demand that it be read or expounded to him in such language as he may understand ; and no one happen to be there to do it; he may withhold his delivery of it. And it is to be observed, that ignorance in reading, or ignorance of the language, quce stmt ignorantia facti, may excuse ; but ignorantia juris non excusat. If, therefore, the party can read, and understand the language also in which the writing is made, he will not be allowed time to obtain the opinion of his counsel learned in the law, although he may not be acquainted with the legal sense and operation of the words, and whether they agree with his covenant or not; but at his peril he must deliver the deed immediately on the covenantee's tendering it for execution (m). {I) Keble v. Brown, Cro. Eliz. (jn) Manser's case, 2 Co. 3, a. ; 660. S. C. 4 Leon. 62. overruling Ben- Chap. XI.] Fur further Assurance. 353 Resort is more frequently made to equity for a spe- cific performance of this covenant, than to a court of law to recover damages for a breach. A contract, however, which carries an equity to have it decreed in specie, ought to be free from all objection: the court will, therefore, refuse a specific performance of a covenant for further assurance in favor of a pur- chaser, where the estate, being a reversion, was bought of an expectant heir, in the lifetime of his father, and at an undervalue : the plaintiff in such case will be left to bring his action of covenant at law («). A specific performance of a covenant for further assurance will also be refused, where the ori- ginal conveyance itself is void ; as if a man covenants to stand seised to the use of a mere stranger, and to make further assurance : Here, the conveyance being- nugatory, and the covenant for further assurance only auxiliary, and going along with the estate, it follows, that if no estate passes, the nullity of the original conveyance will defeat the dependent covenant (0). net's case, Cro. Eliz. 9. Wotton (11) Johnson v. Nott, 1 Vern. v. Cooke, 3 Dy. 337, b. ; S. C. 271; S. C. Nott v. Hill, 1 Bendl. 228 ; 1 And. 53 ; Jenk. Vern. 167. Zouch v. Swaine, Cent. 6. Case, 24. lRol.Ab.424. 1 Vern. 320. pi. 1 1 . Symmes v. Smith, W. Jo. (0) Fursaker v. Robinson, Prec. 314; S. C. 1 Rol. Ab. 441, 2 ; Ch.475 ; S. C. nom.Tursakerv. Cro. Car. 299. Andrews v. Ed- Robinson, Gilb. Eq. Rep. 139. don, 1 And. 122. A A 354 Of Covenants for Title. [Part III SECT. VI. OF EQUITABLE RELIEF. Vl.Ofequit- Where any fraud or concealment is practised by ab c rehef. t j ie ven( j orj by w hich the party is evicted, though by a person not claiming under the vendor, or any of those against whose acts the covenants for the title extend, the purchaser may bring an action on the case, in the nature of an action of deceit against him ; but a bill in Chancery will, in most cases, be found a more effectual remedy ; as it will lead to a better dis- covery of the concealment, and all the circumstances attending it; and may, in some cases, enable the court to create a trust in favor of the injured purchaser. And where the court cannot satisfy itself of the fact, an issue will be directed to try whether the vendor did know of the incumbrance at the time of the sale (jp). So, on the other hand, where the bargain has been fraudulent and unrighteous on the part of the purchaser, equity will relieve the covenantor against an action brought on the covenants for title. In the case in question, the defendant had drawn in the plaintiff, a young man, and purchased an estate of him at a great undervalue ; and it happened that the title was defective, and the defendant was evicted ; and there being covenants for quiet enjoy- ment, and other securities entered into by the plain- tiff, he now came to be relieved against an action (p) Harding v. Nelthorpe, Nels. 118. 4 Cru. Dig. 421. 3d ed. Chap. XI.] Of Equitable Relief. 355 brought on these covenants : For the defendant Swaine it was insisted that he ought to have the value of the estate lost : But the vendor was re- lieved upon repayment only of the purchase money and interest, and not left liable at law to answer the value of the land upon the covenant ; the purchaser discounting mesne profits () demands repetition here. In an indenture of lease of a colliery, the two lessees covenanted jointly and severally with the lessor in manner following, that is to say, £$c. : — then followed a string of covenants respecting the working of the colliery, wherein the lessees cove- nanted jointly and severally ; and then came a co- venant, that the moneys appearing to be due should be accounted for and paid by the lessees, their exe- cutors, &c. (not saying and each of them) ; and it was holden, that this, like the former covenants, was several as well as joint, by reason of the introductory words. The case has been more fully noticed in a a former page (c), to which the reader is referred. But, in order to admit of the qualifying language of the one covenant being considered as virtually transferred to and included in the other, it appears, that they should be connected covenants, of the same import and effect, and directed to one and the same object. Thus, in the cases just cited, the questions were, Whether words of qualification an- nexed to a covenant that the party was lawfully seised or possessed, should extend to the following covenant, in general terms, that he had good right to convey ; and the decision in both cases was in the affirmative. Now, it will be perceived, that the cove- nant for title and the covenant for right to convey are (what is somewhat improperly called) synony- mous covenants (d) ; but the covenant for quiet en- (b) Duke of Northumberland (d) Nervin v. Munns, 3 Lev. v. Errington, 5 Terra Rep. 522. 46. Brdfcning v. Wright, 2 Bos. (c) Ante, p. 120. & Pul. 27. Chap. XL] Absolute or Qualified; 365 joyment is of a materially different import, and directed to a distinct object. The covenant for title is an assurance to the purchaser, that the grantor has the very estate, in quantity and quality, which he purports to convey. The covenant for quiet enjoy- ment is an assurance against the consequences of a defective title, and of any disturbances thereupon (e) : One covenant goes to the title, the other to the pos- session (/"). " Indeed," said Lord Ellenborough (g), " in looking at the case of Browning v. Wright (Ji), in which almost all the cases on the subject are col- lected and considered, I do not find any case in which it is held, that the covenant for quiet enjoy- ment is all one with the covenant for title, or parcel of that covenant, or in necessary construction to be governed by it, otherwise than as, according to the general rules for the construction of deeds, every deed is to be construed according to the intention of the parties." On the contrary, in an early case (J), where one covenanted that he had a lawful right to grant, and that the grantee should enjoy, notwith- standing any claiming under the covenantor, it was said, that these were two several covenants. So, where a man covenanted that he was seised of certain lands of a lawful estate in fee, notwithstanding any act done by him, &c. ; and that the said lands were of the annual value of 200/. ; the court resolved, that these words, (e) Per Lord Ellenborough, 11 (g) 1 1 East, 643. East, 642. (A) 2 Bos. & Pul. 19. (/) Norman v. Foster, 1 Mod. (i) Norman v. Foster, sup. 101 ; S. C. 3 Keb. 246. 3GC Of Covenants for Title. [Part III. for any act, <§c, did not refer to the second covenant, but only to the first part ; and that the second part was absolute, that the lands should be of such a value per annum (A). Partly on the circumstance of the exception of a chief rent to the lord of the fee, but principally for the above reasons, was Howell v. Richards (/) deter- mined. The case arose on a conveyance in fee, con- taining the following covenants on the part of the releasors : That they, for and notwithstanding any act, matter, or thing, by them, or any or either of them, done to the contrary, are, or some or one of them is or are, seised, &c. of an absolute and indefeasible estate of inheritance in fee simple, &c, without any manner of condition, trust, &c, or any other matter, restraint, cause, or thing whatsoever, to defeat, &c; or incum- ber the same estate. And also that they, some or one of them, for and notwithstanding any such matter or thing as aforesaid, now have, or some of them hath, at the time of the sealing, &c, in himself, herself, or themselves, good right, full power, and lawful and absolute right and authority, to grant, &c. the said premises unto and to the use of the said Richard Howell, his heirs, &c, in manner aforesaid, and ac- cording to the true intent and meaning of these pre- sents ; And likewisethat he the said Richard Howell, his heirs, &c, shall and may, from time to time and at all (k) Hughes v. Bennet, Cro. Lit. 80. See also Belcher v. Car. 495 ; S. C. Sir W. Jo. 403. Sikes, 8 Barn. & Cres. 185. Crayford v. Crayford, Cro. Car. (7) Howell v. Richards, 1 1 106; cites 27 H. 8. 29 ; S. C. East, 633. Chap. XI.] Absolute o) Qualified. 367 times for ever hereafter, peaceably and quietly enter into, hold, occupy, possess, and enjoy, the premises hereby granted, &c, without the lawful let, suit, &c, or disturbance whatsoever, of, or by the said (re- leasors), or any or either of them, their, any or either of their heirs or assigns, or for or by any other person or persons whatsoever ; And that freely, and clearly, and absolutely, acquitted, exonerated, released, and discharged, or otherwise by the said (releasors), and each of them, their and each of their heirs, &c, well and sufficiently saved, defended, and kept harmless and indemnified, of, from, and against, all former and other gifts, grants, &c, estates, titles, troubles, charges, and incumbrances whatsoever, save and except the chief rent issuing out of or payable for the said pre- mises to the lord of the fee of the same, if any should be due. And it was contended, that the general language of the covenant for quiet enjoyment, was in fair construction to be qualified and restrained by reference to the antecedent covenants for title, and for the right to convey, which were special and limited. But Lord Ellenborough, C. J., who deli- vered the opinion of the court, said, that the cove- nant to indemnify and save harmless, which followed the covenant for quiet enjoyment, was in the most comprehensive terms, and concluded thus : " Of, from, and against, all other estates, titles, troubles, charges, and incumbrances whatsoever," with this single saving, viz. " save and except the chief rent issuing out of, or payable for, the said premises, to the lord or lords of the fee of the same, if any such should be due :" That the covenant for quiet enjoyment 368 Of Covenants for Title. [Part III. was special and particular in its terms, as well as ge- neral : it was against the disturbance of the defendant and others, the releasors by name, their heirs, &c. ; and also against the disturbance of any other person whatsoever : That it was perfectly consistent with reason and good sense that a cautious purchaser should stipulate in a more restrained and limited manner for the particular description of title which he purported to convey, than for quiet enjoyment : He might have a moral certainty that any existing imperfections of title would be effectually removed by the lapse of a short period of time, or by the hap- pening of certain immediately then impending or expected events of death or the like ; but these im- perfections, though cured, so as to obviate any risk of disturbance to the grantee, could never be cured by any subsequent event, so as to save the breach of his covenant for an originally absolute and indefeasible title : That the person using the general words could not forget that he had immediately before used spe- cial words of a narrower extent. It appeared, there- fore, that the covenant for quiet enjoyment was not in point of necessary construction to be restrained in the manner contended for on the part of the defen- dant: and consistently with the case of Browning v. Wright, and every other case that they were aware of, the court were warranted in giving effect to the general words of the covenant for quiet enjoyment ; and which, his lordship said, were entitled to more weight in this case, inasmuch as they immediately followed and enlarged the special words of covenant against disturbance by the grantors themselves. C hap . X I . ] A bsolute or Qualified. 369 Secondly : In some instances, words of qualifica- 2 - In what J cases a sub- tion used only in the latter part of the instrument sequent will pervade and restrain an antecedent unlimited hmitedcove- covenant. qualify a preceding general cove- To satisfy the apparent intention, the court will nant. consider the two members as constituting but one covenant ; or, where they are several and distinct in terms, deem them otherwise in point of obligation (rti). Therefore, where the assignor of a term " covenanted and granted, that he had not made any former grant, or any thing, whereby the grant or assignment might be in any manner impaired, hindered, or frustrated, but that the said assignee and his executors, by virtue of that grant and assignment, might quietly have, hold, and enjoy, all and singular the premises, with their appurtenances, during the term to come, without any impediment or disturbance by him, or by any other person, &c. ;" it was settled (n), by three judges against Browne, e contra strongly, that the sequel of the sentence, viz. but that, was dilatory, and depended upon the precedent matter, and no new matter or sentence. So, where tenant pour autre vie leased for twenty-one years, and cove- nanted that he had not done any act but the lessees should or might enjoy it during the years, and after- wards, within the twenty-one years, the cestui que vie died ; it was adjudged that the action of covenant did (m) Trenchard v. Hoskins, (n) Broughton v. Conway, Dy. Winch, 93; S. C. Lit. 62. 65. 240, a. ; S. C. Dal. 58 ; and Mo. 203. 58. 370 Of Covenants for Title. [Part III. not lie, for but referred the words subsequent to the words preceding (0). In another case, the defendant covenanted, that certain lands conveyed to the plaintiff for her join- ture were of the value of one thousand pounds per annum, and so should continue, notwithstand- ing any act done or to be done by him ; and it was adjudged, that the viovdi& notwithstanding any act. extended as well to the time of the covenant made, as to the time future ; and though they were not then of that value, the covenant was not broken except some act done by him were the cause of it (p). Thus also, where a lessee covenanted to pay the reserved rent on the days and in manner in the lease mentioned ; and the defendant covenanted, that the lessee should, at all times during the term, pay the rent on the respective days mentioned in the inden- ture, and that in case the lessee should neglect to pay the rent for forty days, the defendant would pay on demand ; no doubt existed in the mind of the court, that the latter clause, as it regarded the surety, was a qualification of the former ; the mean- ing of the covenants being, that the defendant did not become chargeable eo instant i the rent became due, but only after forty days' non-payment, and after demand made. If this were not so, the conse- (0) Peles v. Jervies, Dy. 240. Wms. Saund. 59, n. (1). See in the margin. The cases insert- also Babington v. Sheldon, Dy. ed in the margin of Dyer are of 207, a. pi. 13. and Anon. Dy. great authority, being collected 255, a. pi. 4. by Lord Chief Justice Treby. 1 (p) Rich v. Rich, Cro. Eliz. 43 . Chap. XL] Absolute or Qualified. 371 quence would be, that he would be subject to two actions, one on the day after the rent became due, and another after forty days, and demand made (q). The like was resolved in Nind v. Marshall (r). There the defendant had assigned a messuage and premises to the plaintiff for the residue of a term of years, and covenanted as follows : " That for and notwithstanding any act, deed, matter, or thing what- soever, by him the defendant, at any time thereto- fore made, done, committed, permitted, or suffered, the said thereinbefore in part recited indenture of lease was a good and subsisting lease, valid in the law, whereby to hold the said premises for all the residue of the term thereby granted, and not forfeited, surrendered, or otherwise determined, or become void, or voidable ; And further, that it should and might be lawful to and for the plaintiff, his executors, ad- ministrators, and assigns, peaceably to enter into and enjoy the said messuage, &c, for and during all the rest, residue, and remainder of the said term of four- teen years, without any the lawful let, suit, &c. of the defendant, his executors, administrators, or as- signs, or any of them, or any other person or per- sons whomsoever having or lawfully claiming, or who should or might, at any time or times thereafter dur- ing the said term, have or lawfully claim any estate, right, title, trust, or interest, either at law or in equity, of, in, to, or out of the said premises, or any part or (q) Sicklemore v. Thistleton, 6 & Bing. 319 ; S. C. 3 J. B. Mo. Mau. & Selw. 9. 703. And see Noble v. King, 1 (r) Nind v. Marshall, 1 Brod. H. Blac. 34. B B 2 372 Of Covenants for Title. [Part III. parcel thereof, and that free and clear, and freely and clearly acquitted, exonerated, and discharged, or otherwise by the defendant, his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified, of, from, and against, all and all manner of former and other gifts, grants, charges, and incumbrances whatsoever, made, done, or committed, or wittingly or willingly permitted or suffered by the defendant, or by, through, or with, his, their, or either of their acts, means, default, pro- curement, consent, or privity, (subject only to the rents, covenants and agreements by the said inden- ture of lease reserved and contained) : Next came a covenant for further assurance in qualified terms : And it was holden, Park, J. dissentiente, that the covenant for quiet enjoyment extended only against the acts of the covenantor, and those claiming under him, and not against the acts of all the world ; for the court said, the words and that, following the co- venant for quiet enjoyment, over-rode the whole of the preceding part, so that the covenant stood in effect thus : that there should be a quiet enjoyment during the residue of the term, free from, or indem- nified against all interruption, not only on the part of the covenantor himself, his executors, adminis- trators, or assigns, but on the part of all other per- sons lawfully deriving any title or interest from the acts or defaults of the covenantor, his executors, ad- minstrators, or assigns ; and that it would be incon- sistent with the first covenant to construe this to be a covenant warranting the quiet enjoyment of the lease against all the world ; and it would be consis- tent with it to hold it a qualified covenant ; and that Chap. XL] Absolute or Qualified. 373 if the second covenant had the effect contended for by the plaintiff, the first covenant would be useless ; and that it was consistent with the third covenant (a qualified covenant for further assurance), to hold the second to be qualified and restricted ; because all persons whatsoever must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor, or persons claiming under them ; that they were in the nature of sweeping and comprehensive words, intro- duced to give the largest effect to the special words, reference being had to their special nature, and, as such, ranging under known rules of construction, and to be explained and applied as already stated : Judgment was given for the defendant accordingly. It will be remarked, that this case is distinguish- able from Howell v. Richards (s), which was much relied on by the plaintiff, because the clause respect- ing incumbrances, which forms the strength of the argument in favor of the defendant here, there formed the strength of the argument against him ; that clause contained words as general as the words which preceded, with one single exception, viz. the chief rent, which was not an act or de- fault of the party, or of any claiming under him ; this therefore confirmed the generality of all the other words. And it is distinguishable from Gains- ford v. Griffith, on the ground that the covenant for the validity of the lease, on which alone the court proceeded, holding it to be an independent cove- rs) Sup. p. 366. 374 Of Covenants for Title. [Part III. nant, and such as could not be connected in gram- mar or construction with the following covenant, was, by itself, clearly absolute, containing no words what- ever of qualification ; whereas here, the words of qualification, as Mr. Justice Richardson remarked, might and ought to be considered as part of the co- venant for quiet enjoyment. The case of Barton v. Fitzgerald is also to the same effect as Gainsford v. Griffith. If an express special agreement be inserted in a deed, that former covenants shall be confined to the acts of particular persons, these covenants will re- ceive a limited construction. Thus, the grantor, on the conveyance of a fee-farm rent, covenanted gener- ally that he was seised in fee, and had good right to sell, but the indenture contained a subsequent cove- nant between the parties, that none of the covenants in the deed should extend beyond the acts of the vendor and his heirs ; and, notwithstanding an objec- tion that it was a remote agreement at the end of the deed, and far distant from the other covenants, it was adjudged, that it qualified the first covenant, and restrained it to the acts of the covenantor and his heirs (t). Acting on the same principle, equity has, by grant- ing a perpetual injunction, relieved a party from legal proceedings grounded on the general words of a co- venant, which was contrary to the intention of the parties, and it so appeared in the conveyance, where (0 Brown v. Brown, 1 Lev, 51; S. C. 1 Keb. 234. 239. Chap. XI. J Absolute or Qualified. 'Mo the rest of the covenants were restrained to acts done by the plaintiff and all claiming under him (u). It is otherwise, however, where the import and object of the covenants are different; in which cases, the courts will not impose any restraint on anterior covenants couched in absolute language ; but will allow them the free and unshackled interpretation required by their unqualified and unlimited terms. Therefore, where the grantor covenanted that he had lawful right to grant, and that the grantee should enjoy notwithstanding any claiming under him (the grantor) ; as these were two several cove- nants, the one going to the title, and the other to the possession, the first was considered general and not affected by the second (V). So, where one assigned his term, and covenanted that the indenture of lease was a good, sure, perfect, and indefeasible lease in law of the said messuage, and so should remain to the plaintiff during the residue of the term ; and that the plaintiff, his executors, &c, should quietly and peace- ably enjoy the said messuage, during the residue of the term, without any disturbance of the defendant, or his executors, or assigns, and acquitted, or other- wise saved harmless from all incumbrances had, made, done, committed, suffered, or done by the de- fendant, the rent and covenants upon the original lease only excepted ; the judges agreed, that this was an express general covenant in fact, which was (u) Feilder v. Studley, Finch, ley, 3 Bos. & Pul. 575. 90. Cited by Lord Eldon, 2 Bos. (v) Norman v. Foster, 1 Mod. & Pul. 26 ; and by Lord Alvan- 101 ; S. C. 3 Keb. 246. 376 Of Covenants for Title. [Part III. not, nor could be restrained by any other subsequent covenant, if it could not be construed as part of the first general covenant; and that the words in the last covenant, without interruption, could not be applied in sense to the covenant that the lease was indefeasible ; for then the sentence would be insensible, namely, that the lease was indefeasible without the interrup- tion of the defendant, &c. ; and besides, if it were sensible, yet the words without interruption did not take away the force and signification of the word m- defeasible, but it remained an absolute general cove- nant as before (w). And in commenting on this case, in Browning v. Wright (V), Lord Eldon has observed, that the assignor seemed to have said, I not only covenant for the goodness of my title, but that you shall enjoy under that title, without any interruption from me. The nature of the assurance showed it to have been the intent of the parties, that the words in the last covenant should not attach upon the first. A like judgment was delivered in the case of Trenchard v. Hoskins (3/). The facts were : One (w) Gainsford v. Griffith, 1 sidered it a separate and general Saund. 58 ; S. C. 2 Keb. 76. covenant. The report concludes 201. 213 ; and 1 Sid. 328. nom. by stating, " that it was said by Gamsford v. Griffith. the court, that the case was not (x) 2 Bos. & Pul. 2.5. of weight to be brought into the (y) Trenchard v. Hoskins, Lit. Exchequer Chamber, and there- 62.65. 203; S. C. Winch, 91. fore the court, advised that the As this case is reported by Winch, parties would agree ; quaere, for it appears that Hobart, C. J. and the residue in the Exchequer Jones, J. held the covenant to be Chamber concerning that." And qualified : and Hutton, J. and Serjeant Williams, in a note to Winch, J., on the contrary, con- Gainsford v. Griffith, 1 Saund. 60. Chap. XL] Absolute or Qualified. 377 Henry Hoskins, to whom the land in question had been bargained and sold by one Fitzwilliams, died seised, and the land descended to John Hoskins, and he and Peter Hoskins by indenture enfeoffed the plaintiff. And John and Peter Hoskins covenanted in manner and form following : that John Hoskins is seised of a good, perfect, and indefeasible estate in fee simple ; and that he or Peter Hoskins has good and lawful authority to sell the same, and that there is not any reversion or remainder in the crown for any act done by John Hoskins, or Peter Hoskins, or William Proud, or any of them. The plaintiff as- signed as a breach, that John Hoskins was not seised of a good estate in fee simple (s). The case was argued at great length, in Mich. 3 Car. ; and the opinions of Richardson and Crooke at first seemed to be in favor of the defendant, and that all the covenants were restrained by the latter words ; Hutton and Yelverton, e contra. But afterwards, Mich. 4 Car., the judges expressed themselves seriatim, and concurred in thinking, that the words notwithstanding any act, 8$c. did not control the generality of the antecedent co- says, " That a writ of error was entof the other, and the judgment afterwards brought in the King's of the C. B. was reversed; " and Bench, where it was adjudged, he cites 2Rol. Ab. 250. pi. 4. and that the last clause, notwith- 1 Sid. 328. But it is said in standing any act done, &c. did Sid. " that no reversal was en- not restrain the first clause of the tered ; ideo quaere" See Nap- covenant, namely, that he had a per's case, Winch, 74. 87. 93. good and indefeasible estate in (z) At this part of the report fee ; but that such clause was in Lit. there is an evident omission absolute and general, because the of the commencement of the de- general usage of conveyances is fendant's plea in bar. to make one covenant independ- 378 Of Covenants for Title. [Part III. venant for seisin, on the following grounds : First, that the covenants differed in matter, person, and nature ; for the first extended to John alone, in regard to the estate ; the second, as to the power to sell, to John and Peter ; and the third was, that no remainder existed in the crown, notwithstanding any act done by John, Peter, or William. Secondly, that the co- venants differed in number ; the first being in the singular, the second in the plural. Thirdly, that the second covenant was in the affirmative, the third in the negative ; and that the words of qualification were annexed to the negative covenant only ; so that it was all one as if the deed had said, that neither John, nor Peter, nor William, had done any act by which any reversion should be in the crown. So also, where the assignor of certain shares of letters patent for making paper covenanted in these words : " That I the said J. S. have good right, and full power, and lawful and absolute authority, to as- sign and convey the said ten thousandth parts or shares of and in the said letters patent, and concern for making paper, &c; and that I have not by any means, directly or indirectly, forfeited any right or authority I ever had, or might have had, over the same ten thousandth parts or shares;" the court held, that as the warranty in question, instead of being framed in the usual and almost daily words, where parties intended to be bound by their own acts only, (viz. for and notwithstanding any act by him done to the con- trary,) omitted them altogether, the omission of these words was of itself decisive ; and that, as the attention of the purchaser was not called by any words to the Chap. XL] Absolute or Qualified. 379 intent of the vendor to confine his covenant to his own acts, the covenant for absolute right to convey was not restrained by the other parts of the deed (a). In Barton v. Fitzgerald (Z»), the defendant by in- denture, after reciting an original lease for the term of ten years, and that by divers mesne assignments the premises became vested in him for the residue of the said term of ten years, assigned the same to the plaintiff for the residue of the said term of ten years, and covenanted thus : " That he (the defend- ant) hath not at any time heretofore made, done, or committed, or willingly permitted or suffered to be done, any act, deed, matter, or thing whatsoever, whereby the said premises are, can, shall, or may be, charged, assigned, impeached, incumbered, or af- fected in title, estate, or otherwise howsoever, save and except an agreement with one W. Anderson for the occupation of part of the said premises for the term of three years from the 10th of October instant. And also that the said in part recited indenture of lease is a good and subsisting lease, valid in the law, of and for the said premises hereby as- signed, and not forfeited, surrendered, or otherwise determined, or become void, or voidable. And further that it shall be lawful for the plaintiff, from time to time, and at all times hereafter during the said term hereby granted, peaceably and quietly to enter into, have, hold, occupy, and enjoy the said premises assigned, &c, and take the rents, &c. for (o) Hesse v. Stevenson, 3 Bos. (/>) Barton v. Fitzgerald, 15 & Pul. 565. East, 530. 380 Of Covenants for Title. [Part III. his own use and benefit, for and during all the rest, residue, and remainder, now to come and unexpired of the said term of ten years, in and by the said in part recited indenture of lease granted, without any the lawful let, suit, hindrance, interruption, or de- nial of the defendant, his executors, &c, or any other person or persons lawfully claiming or to claim the same premises, by, from, under, or in trust for, him, them, or any of them. And lastly, That the defendant shall from time to time, and at all times hereafter, during the residue of the said term granted by the said in part recited indenture of lease, at the request and costs of the plaintiff, make, do, and execute, or cause and procure to be made, done, and executed, all and every, or any further act, deed, matter, or thing whatsoever, for the further, better, more perfect, and absolute, assigning and assuring the said indenture of lease, and the said messuage and premises thereby demised, and now assigned to the plaintiff for all the remainder of the said term of ten years which should be therein now to come and unexpired, according to the true intent and meaning of these presents, as by the plaintiff, &c. should be reasonably advised or required." The lease was in fact determinable by the death of one H. de la Touche, but no mention whatever was made of that circumstance in the lease ; but the term was treated throughout the deed as absolute, without any quali- fication ; and during the term cestui que vie died : Lord Ellenborough, C. J., concluded his opinion by saying : " When I find a recital in the beginning of the subject matter of the contract, being for the re- sidue of a term of ten years, without any contin- Chap. XL] Absolute or Qualified. 381 gency annexed, and afterwards find an absolute covenant in its terms for the validity of such a lease, together with other covenants against his own acts and those claiming from him ; I cannot say that we are not to give effect to the general words of the covenant ; and we cannot do otherwise, without re- jecting the word and (in the passage and not forfeited or voidable), and reading instead of it, that is to say: but looking at the whole deed, there is nothing whence we can collect such a meaning as would warrant so narrowed a construction." Much to the same effect is a case (c), where the defendant sold the plaintiff certain lands, which he had purchased of one Woolaston, and covenanted that he was seised of a good estate in fee according to the indenture made to him by Woolaston. Judg- ment was given for the plaintiff, on the ground that the covenant that he was seised of a good estate in fee was absolute, and the reference to the convey- ance by Woolaston, served only to denote the limit- ation and quantity of estate, and not the defeasible- ness or indefeasibleness of the title. Although the subject has been noticed before (d), this section cannot be closed without repeating, that an express particular covenant will qualify the generality of a covenant in law ; the rule of law being, ewprcssum facit taciturn cessare. As if one leases a house by the words demise, grant, 8$c., and the lessor (c) Cooke v. Founds, 1 Lev. Cookes v. Fowns. 40; S. C. 1 Keb. 95. nom. ). (to) Crusoe dem. Blencowe v. (o) Berry v. Taunton, Cro. Bugby, 3 Wils. 234; S. C. 2 Eliz. 331. W. Blac. 766. ( p ) Doe dem. Pitt v. Laming, (n) Greenaway v. Adams, 12 4 Campb. 73. Ves. 395. 400. Chap. XII.] underletting without License. 409 But where a lease contained a proviso for re-en- 3. Disposing , . . of part ot try, " in case the tenant, his executors or adminis- the premises. trators, should demise, lease, grant, or let, the said demised premises, or any part or parcel thereof, or convey, alien, assign, or set over, the indenture, or his or their interest therein, or any part thereof, to any person or persons whomsoever, for all or any part of the said term, without the special license and consent of the lessor, his heirs or assigns, in writing ;" and the defendant, without such license, let a person of the name of Pincheon into the oc- cupation of part of the premises exclusively, and of other parts jointly with the defendant, which pre- mises Pincheon was to deliver up on being required so to do, on having three months' notice from the defendant; and it was agreed, that the parties should enter into partnership, and should equally divide the profits of the goods sold therein, as well as the pro- duce of the garden ; It was held, that it was a part- ing with the exclusive possession of some part of the demised premises ; and conferred on the lessor the right of re-entry ; and that the circumstance of Pin- cheon's occupation being gratuitous was immaterial to the landlord, who meant to guard against having any other than the person in whom he confided as tenant, let into possession without his consent (). (u) Gourlay v. The Duke of (v) Anon. Dy. 45, a. Somerset, 1 Ves. & B. 68. See (w) Co. Lit. 223, b. also Turner v. Richardson, 7 East, (x) Doe dem. Cheere v. Smith, 335; S. C. 3 Smith, 330. 1 Marsh. 359 ; S.C. 5 Taunt. 79 r , 412 Of Covenants in restraint of assig?iing or [Part III. 7. Bequest. Whether a bequest, or, as the books denominate it, the devise of a term, without the landlord's assent, is a breach of a covenant not to assign without li- cense, is now to be considered. The law on this point appears to have undergone a total alteration ; most of the early cases unequivocally deciding, that such a bequest did occasion a breach ; and one case, in the time of James the First, and two recent judi- cial dicta, as explicitly advancing a contrary doc- trine. Nearly all the cases have arisen on conditions, but this circumstance, it is apprehended, may be re- garded as unimportant. One of the first cases on the subject is to be found in Dyer(j/). There a lease was made for a term of years, upon condition that the lessee should not assign his term without the assent of his lessor. The lessee devised his term to his son and wife, and made them his executors ; and it was said, that if they had not been executors, the condition would have been broken. This was followed by Knight v. Mory (s), in which it was also held, that a general devise was a breach of the condition. In another case {a), where there was a lease for years, on con- dition that the lessee should not devise (b) the land, or assign over his term ; and by will he bequeathed it; Gawdy, Fenner, and Clench, held, clearly, that the condition was broken, for by this bequest the {y) Lord Windsor v. Burry, (a) Barry v. Stanton, Cro. Dy. 45, b. in marg. Eliz. 330. (z) Knight v. Mory, Cro. Eliz. (b) This word, it seems, is a 60. typographical mistake for demise. Chap. XII.] underletting without License. 413 term was disposed of by his gift, which was an alien- ation, and was as strong as any other alienation : but Popham delivered no opinion. The point soon again came before the court ; and all the Justices held, that a devise was a breach of a condition not to demise the premises (c). Anterior to that period, in the reign of Henry the Eighth, the court, indeed, had proceeded a step further. A lease for years was made, upon condition, that if the lessee during his life should assign the term without consent, the les- sor might re-enter ; and even here, although the restraint on alienation was expressly confined to the lessee's life, R. Brook, and Hales, the Master of the Rolls, thought that this was a forfeiture ; for the devisee, when he was in, should be said to be in by the assignment which the lessee (d) made during his life (e). And a diversity was said to exist between an assignment, which the law made, and an assign- ment made by the lessee himself; for had the lega- tee been also executor, the covenant or condition would not have been broken (/). That the law on the subject continued uniform to the time of James the First, is apparent from the judgment in Horton v. Horton (g) ; viz. that a devise was a breach of the condition ; for the lessee thereby made an alien- ation. The books are silent on this point, as far as the (c) Berry v. Taunton, Cro.Eliz. (/) Ibid. Lord Windsor v. 331; semb. S. C. Ow. 14, nom. Burry, Dy.45,b.inmarg. Dum- Taunton's case. per v. Syms, Cro. Eliz. 817. (d) Lessor in the report. (g) Horton v. Horton, Cro. (e) Parry v. Harbert, Dy. 45, b. Jac. 74. 414 Of Covenants in restraint of assigning or [Part II I. author has been able to learn, until the eighth of Charles the Second, when first a contrary doctrine was broached. A case then occurred, in which it was said, that if a lessee for years do covenant with the lessor not to assign over his term without the lessor's consent in writing, and do afterwards with- out such consent devise the term to J. S., this is not a breach of the covenant, for a devise is not a lease (h). This case, it is remarkable, makes no al- lusion to the antecedent decisions ; yet its authority has been recognised and confirmed by judges of more recent times. It was quoted by counsel in Crusoe v. Bugby(i); and the court, in delivering their judgment, said, that the devising a term was a doing or putting it away, but that it did not amount to an assignment, or to a breach of the covenant or condi- tion. Of this opinion also was Bay ley, J. (k), who admitted, that a devise of a term by the lessee was not a breach of the covenant not to assign ; and he observed, that such had been the general impression in the minds of the profession for a long series of years. Under these circumstances, where no difficulty exists in obtaining the lessor's assent to a bequest, prudence would suggest the expediency of procuring his concurrence, in preference to the risk of an action, or a forfeiture of the estate, for assigning with- out license. (h) Fox v. Swann, Sty. 482, 3. point is not judicially noticed. (i) Crusoe dem. Blencovve v. (k) Doe dem. Goodbehere v. Bugby, 3 Wils. 237 ; S. C. 2 W. Bevan, 3 Mau. & Selw. 361 . Blac. 766 ; in which report the Chap. XII.] underletting without License. 415 At various times, the question has been agitated, 8. Execution . on a warrant Whether a warrant of attorney to confess judgment, of attorney. on which the lease was taken in execution and sold, created a forfeiture, when a proviso was contained in the lease determining it on assigning over. The early cases on the subject are contradictory ; and until lately the precise point was not settled. There is this note in the margin of Dyer's Reports (7) : " A man leased for years, upon condition that the lessee should not assign it over : the lessee acknowledged a statute : the term is extended ; Walters cited this ; Resolved to be a breach of the condition, although they come in in the post, and by act of law." In the case in Anderson (m), there was a difference of opi- nion among the judges ; it was said by one of them, that if land be leased on condition not to assign, and the lease be taken in execution by reason of a judg- ment or recognizance, it is not a forfeiture ; but this was denied by another of the judges, who said, that the execution was itself a forfeiture, to which the reporter adds, " which is hard, as it seems." The case is also reported by Leonard (V), according to which book, Periam, J. and Meade, J. held, that it was not an alienation against the condition. In another case in Leonard (o), where a man devised lands to his wife, until his son William should attain the age of twenty- two years, and then the remainder of part of the lands to his two sons, A. and John ; the remainder of other part of his lands to two others of his said sons, upon condition, that if any of his (Z) Dy. 6, a. (») 1 Leon. 3. (m) 1 And. 124. (o) Large's case, 2 Leon. 83. 41 C Of Covenants in restraint of assigning or [Part II 1^ said sons should, before William should come to the age of twenty-two, go about to make sale of any part, &c., he should lose the lands, and the same should remain over ; it was said, that if the devisee had entered into a statute to the value of the land leased, by the intent of the will, the same had been a sale ; and such was the opinion of the whole court. These are the earliest cases on this subject. At length came a case (p), by which the point was set at rest. The lease on which the action arose contained a covenant, that the lessee, his executors, administrators, or assigns, should not let, set, as- sign, transfer, make over, barter, exchange, or otherwise part with, the indenture, or the said messuage, lands, &c. thereby demised, or any part thereof, to any person or persons whomsoever, for all or any part of the said term, without the special license of the lessor, his heirs or assigns, in writing : with a proviso for re-entry on non-performance of the covenants. A creditor of the lessee, for a just debt, took from him a warrant of attorney to confess judgment, upon which, judgment was accordingly entered up, and execution issued ; and under this execution the lease was sold by the sheriff to the de- fendant. At the time of his purchase the defendant knew that the lease contained the said covenant and proviso. The distinction between voluntary acts on (p) Doe dem. Mitchinson v. Doe dem. Duke of Norfolk v. Carter, 8 Term Rep. 57. And Hawke, 2 East, 481. Goring v. see Elliot v. Edwards, 3 Bos. & Warner, 2 Eq. Ca. Ab. 100 ; Pul. 181. Crusoe dem. Blen- S. C. 7 Vin. Ab. 85. pi. 9. cowe v. Bugby, 3 Wils. 237. Chap. XII.] underletting without License. 417 the part of the lessee, and those that passed in invitum t was adopted by the court, and formed the ground of their decision : they determined, that judgments in contemplation of law always passed in invitum ; and that there was no difference between a judgment ob- tained in consequence of an action resisted, and a judg- ment that was signed under a warrant of attorney ; since the latter was merely to shorten the process, and to lessen the expense of the proceedings ; that if the warrant of attorney had been a specific lien on the estate, that, perhaps, would have come within the words of this covenant ; but it only gave the creditor power to enter up judgment against the tenant ; and it did not follow, that the term must necessarily be taken in execution under that judgment ; it might, they said, as well be argued, that the giving a bond, which might lead to a judgment and execution, on which the term might be taken, was a forfeiture. If, however, the warrant of attorney be given for the express purpose of having the lease taken in exe- cution, and the tenant consent to it, the court will not be deceived by such a flimsy pretext ; the maxim being, that that which cannot be done 'per directum shall not be accomplished per obliquum : and, as the tenant could not by any assignment, under-lease, or mortgage, convey his interest to a creditor, he should not be able to convey it by any attempt of this kind ; for that would be an allowance to the party to avail himself of his own fraud to avoid the ordinances of the law (q). (9) Ibid. E E 418 Of Covenants in restraint of assigning or [Part 111. 9. Extent. A very recent case (r) connected with this subject must not be omitted. A clause was inserted in a lease, providing for the re-entry of the lessor, in case the term of years thereby granted should be extended or taken in execution. Before the end of the term the sheriff entered on the premises under a writ of extent against the lessees, at the suit of the crown, held an inquisition, and seised the lessees' interest into the King's hands ; and the Judges held, that this proceeding was a taking in execution within the latter clause of the conditions, and that the term was deter- mined, and forfeited to the lessor (r). 10. Bank- On the distinction which governed the judgment ru P c y- m rj oe v Carter, it has been holden, that the bank- ruptcy of the lessee, and consequent vesting of his term in the assignees under the commission, are not a breach of a covenant restraining assignment ; the word assigns being construed by the court to mean, voluntary assigns. The decisions have even gone further than that ; and it is now settled, that the immediate vendee from the assignee is not within the proviso ; the reason of which is, that the assignee in law cannot be incumbered with the engagement belonging to the property which he takes ; such as, in this case, the carrying on the bankrupt's trade in a public house (V). And no difference exists be- (r) Rex v. Topping, 1 M'Clel. Goring v. Warner, 2 Eq. Ca. Ab. & Y. 544. 100. pi. 3 ; S. C. 7 Vin. Ab. 85. (s) Doe dem. Goodbehere v. pi. 9. But see Sir William More's Bevan, 3 Mau. & Selw. 353. case, Cro. Eliz. 26 ; where the Doe dem. Cheere v. Smith, 5 administrator was bound, because, Taunt. 795; S. C. 1 Marsh. 359. if. was said, he was an assignee in Onslow v. Corrie, 2 Madd. 341. law. Chap. XII.] underletting 'without License. 419 tween the compulsory course under which the sale is made, whether it be in the case of an execution on a warrant of attorney, or in the case of a bankruptcy ; for the commission of bankruptcy is a statutable execution. It has also lately been decided, where a tenant held some leasehold property, subject to a proviso for re- entry on aliening without license, that an assign- ment by him of all his property for the benefit of his creditors, which was void in law, and was afterwards avoided in fact, as an act of bankruptcy, by the issu- ing of a commission against the lessee, prior to any act or proceeding done or instituted by or on the part of the lessor, either by re-entry or otherwise, did not operate as a breach of the condition in the lease (t). And on the above distinction between voluntary n. Taking and involuntary acts, it appears, that an assignment j ene , t0 by an insolvent debtor, who is not in a situation to Act. be compelled to part with his property, would be comprehended within the meaning of a covenant or condition " not to contract or agree to sell, or other- wise part with the premises, or any part thereof, or in any way charge the same, or any part thereof, as a security for any sum or sums of money" (u). Sir William Grant, M. R., considered, that bank- ruptcy superseded an agreement not to assign without (0 Doe dem. Lloyd v. Powell, («) Shee v. Hale, 13 Ves. 404. 5 Barn. & Cres. 308; S. C. 8 See also Wilkinson v. Wilkinson, Dow. & Ry. 35. 3 Swanst. 515. E E 2 4*20 Of Covenants in restraint of assigning or [Part III. license, only in favor of general creditors (v). This, however, appears to have been in effect overruled ; for, in a later case, in which a petition had been pre- sented for the sale of some leasehold property, the lease of which had been deposited with the petitioner for securing a debt ; as the lease contained no clause making an act of bankruptcy a determination of the lease, an order was made, that the premises should be sold under the lessee's commission (w). Where assignments are made by the assignees of a bankrupt, they must be fair and bond fide ; or equity will interpose and annul the transaction. A lessee for eleven years, at 140/. rent, who had cove- nanted for himself, his executors, and administrators, that he would not, without the lessor's consent, assign over the lease, became bankrupt; the defendant Hoare, the assignee under the commission, entered on the farm, sold off the crop and stock, paid the Michaelmas rent, 1739, and on the day before the next rent-day, assigned over to one Robinson, of whose insolvency there was strong proof: The bill was brought to oblige Hoare to keep the lease during the term. It appearing in evidence, that Robinson never ploughed or sowed the land, nor resided on the farm, but occupied it rather as an agent, Lord Hardwicke held it to be a fraudulent transaction be- tween Hoare and Robinson, and decreed Hoare to (v) Weatherall v. Geering, 12 462. Ex parte Baglehole, 1 Rose, Ves. 504. 432. Doe dem. Goodbehere v. (w) Ex parte Sherman, 1 Buck, Bevan, 3 Mau. & Selw. 354. Chap. XII. j underletting without License. 421 answer the rent to the time, and the assignment to be set aside (.r). In consequence of these resolutions, it is now the frequent practice of conveyancers to stipulate, in the lease, for its determination, in case the lessee should become bankrupt. Some doubts were formerly en- tertained, whether provisions of this kind were con- trary to law ; but their legality has been fully esta- blished ; and it has been adjudged, that they are •neither in opposition to any express law, nor unlaw- ful as against reason or public policy (j/). But cove- nants of this kind do not fall within the range of what are termed usual covenants (z). Executors and administrators stand, in this respect, 12. Assign- in a situation different from that of assignees of a ^tors^&c" bankrupt. Although it is true, that executors or ad- ministrators are not comprehended within the clause restraining assignment, so as to occasion a breach by the term vesting in them (a) ; yet, where they are named in the covenant, they are bound thereby, and can only convey the estate in the same manner as their testator or intestate could have conveyed it (b). (x) Philpot v. Hoare, 2 Atk. 482. Doe dem. Mitchinson v. 219 ; S. C. Ambl. 480. Carter, 8 Term Rep. 61. (y) Roe dem. Hunter v. Gal- (z) Ibid, liers, 2 Term Rep. 133. Doe (a) Parry v. Harbert, Dy. 45, b. dem. Lockwood v. Clarke, 8 East, Ld. Windsor v. Barry, Ibid.marg. 18.5. Church v. Brown, 15Ves. (b) Roe dem. Gregson v. Har- 268. Dommett v. Bedford, 3 rison, 2 Term Rep. 425. Stan- Ves. 148; S. C. 6 Term Rep. hope v. Skeggs, Cited 2 Term 684. Cooper v.Wyatt, 5 Madd. Rep. 138. 422 Of Covenants in restraint of assigning or [Part III. If the covenant or proviso does not contain the word executors, but is confined to an assignment by the lessee himself, it may be doubted whether the re- striction would extend to prevent a conveyance by the executor (c). But, it is observable, that a cove- nant by a lessee for himself and his assigns will bind his administrator (7/). If the covenant not to assign contains an exception in favor of an assignment by will, it appears, that executors, claiming under the will, are not within the exception, so as to be at liberty to sell for payment of the testator's debts without leave of the lessor (e). Where, however, a forfeiture had been incurred by the executor selling the lease for payment of debts, and the assignee was turned out of possession ; the Court of Chancery, on the ground that the lease was sold for payment of debts, to which it was liable, decreed the plaintiff to be relieved against the forfeiture (/"). The case of Seers v. Hind (g), in which one of the questions was, whether executors were warranted in disposing of a lease, as assets of the testator, where there was a proviso against alienation by the lessee, apparently takes a different view of the law. It was there said by Lord Chancellor Thurlow: " If A. lets (c) 2 Term Rep. 429. Anon. Cro. Eliz. 757. Dy. 65, 6. pi. 8. Seers v. Hind, (e) Lloyd v. Crispe, 5 Taunt. 1 Ves. Jun. 295. Lord Stan- 249. hopev.Skeggs, Cited 2TermRep. (/) Cox v. Brown, 1 Rep. in 138. Ch. 170. (d) Mo. 44. pi. 136. Sir W. (g) Seers v. Hind, 1 Ves. Jun. More'scase, Cro. Eliz. 26; S.C. 295. And. 123. Thornhil v. Kins:. Chap. XII.] underletting without License. 423 a farm to B., with covenant not to alien, and B. dies, may not his executors dispose of it ? I think it has always been determined that they may ; and I have always taken it as clear law. It is an alienation by the act of God. I remember, Lord Camden entered into the question much in the same way ; he took it to be clear law, that an alienation by death could not be a forfeiture. In case of a lease for years to A., it goes to his executor, not by way of limitation, as in the case of a remainder over, &c; but as coming in the place of a lessee. I understood it to be well settled as I have stated." One way, perhaps, of re- conciling this note (for it can scarcely be called a report) with the preceding cases, is, by taking for granted, that the restriction was confined to the lessee himself; and this supposition is warranted by the report, which makes no mention of executors (h). The result of the authorities seems to be, that un- der such circumstances a forfeiture would be created at law, relievable however in equity; though, gene- rally speaking, that court will not afford any relief against a forfeiture occasioned by assigning without license (i). The case of a party taking an estate as executor, is like that of an heir taking a freehold ; and he ought to have notice of the condition, in order to affect his (h) See Anon. Dy. 66, a. pi. 8. Lovat v. Lord Ranelagh, 3 Ves. (i) Wafer v. Mocato, 9 Mod. & B. 31. Rolfe v. Harris, 2 112; S. C. 2 Eq. Ca. Ab. 58. Price, 211, note. Wadman v. Reynolds v. Pitt, 19 Ves. 142. Calcraft, 10 Ves. 67. Sanders Hill v. Barclay, 18 Ves. 63. v. Pope, 12 Ves. 292. 424 Of Covenants in restraint of assigning or [Part III. interest, by way of forfeiture for breach of the con- dition. Thus, where there was a proviso in a lease for three lives, that if the lessee, his executors or assigns, should lease the premises for more than seven years, (except it should be by his or their last will, and for the use of any wife or child,) without the license of the landlord in writing, it should be lawful for the land- lord to re-enter; and the lessee's executor leased for fourteen years, without license, and without know- ing the particular circumstances relative to the lease ; Lord Chancellor Northington's opinion was, that as the executor was a stranger to the condition, the lease itself, at the time, being in the hands of another person ; and as the underlease could not be for four- teen years absolutely, but must determine on the death of the executor (the last surviving life), the demise by him was not a breach of the condition (k). III. Conse- By way of preliminary remark, it may be stated, license once that, in addition to the covenant denying the privi- granted. i e g- e f alienation without the lessor's leave, it is the almost invariable practice to reserve to the landlord a power of re-entry, in case the tenant should not observe the covenants contained in the lease. This provision will enable the landlord to re-enter, or bring an ejectment, and by these means defeat the lessee's estate, and determine the tenancy, leaving both parties in the same situation as if the lease had never been granted. But the lessor, in the absence of a proviso for re-entry, would possess no such power, the mere covenant not to assign enabling him (k) Northcotev. Duke, Ambl. 511 ; S. G. 2 Eden, 319. Chap. XII.] underletting without License. 425 to sue for damages only (/). The mere covenant, therefore, would afford a very indifferent security to the lessor, from the difficulty of ascertaining the actual extent of damage done by assignment, and the proportionate pecuniary recompense to be recovered. It has long been clearly settled as law, that a pro- viso or condition for re-entry on assigning without li- cense, was dispensed with by a license once granted, even in favour of a particular person ; so that no subsequent alienation could break the proviso, or give cause of re-entry to the lessor ; for the lessor could not admit an alienation at one time, and yet continue the estate subject to the proviso after ; and inasmuch as, by force of the lessor's license, and of the lessee's assignment, the estate and interest of the assignee were absolute, it was not possible that his assignee, who had his estate and interest, should be subject to the first condition. Dumpor's case (m) has been universally referred to as justifying this position : and Lord Eldon, notwithstanding his re- mark, that the case always struck him as being ex- traordinary (w), and that he should not have thought it a very good decision originally (0), has admitted that it is now the law of the land, (I) See Doe dem. Willson v. Thornhil v. King, Cro. Eliz. 757. Phillips, 2 Bing. 13; S. C. 9 (n) Brummell v. Macpherson, J. B. Mo. 46. 14 Ves. 175. (m) Dumpor's case, 4 Co. 119, b. (0) Macher v. The Foundling Whitchcot v. Fox, Cro.Jac. 398; Hospital, 1 Ves.&B. 191. See S. C. 1 Rol. 68. 389 ; 2 Bulstr. also Doe dem. Boscawen v. Bliss, 290. Cont. Anon. Dy.l52,a.pl.7. 4 Taunt. 735. 42G Of Covenants in restraint of assigning or [Part III. The ground of the resolution in Dumpor's case, and of those determinations which have succeeded and confirmed that decision, was, that the proviso or con- dition could not be divided or apportioned by the act of the parties. The same principle has also been extended to a mere covenant, whether properly or not is questionable, as covenants, unlike conditions, do not possess in their nature the property of indivisi- bility (jo). In some of the cases (a), it is laid down, that such a covenant is at an end by a license once granted. Dumpor's case is, indeed, the authority cited in support of the statement ; but the above dis- tinction between covenants alone, and covenants coupled with provisoes or conditions for re-entry, is not adverted to. IV. Whe- Now, if it be law, that the grant of a license will with the operate as a discharge of the covenant, which is very land. doubtful ; it follows, that the covenant, if once de- stroyed by dispensation, cannot possibly run with the land (r) ; since it cannot be revived to be rendered binding on an assignee. Nor, then, would the ex- press mention of the assignee, as if the covenant were entered into by the lessee for himself, his exe- cutors, administrators, and assigns, make a diffe- rence in this respect (s). Some of the cases, how- (p) Congham v. King, Cro. Lloyd v. Crispe, 5 Taunt. 257. Car. 221 ; S. C. Sir W. Jo. 245, (r) Collins v. Sillye, Sty. 265. nom. Conanv.Kemise. Stevenson See also Lucas v. How, T. Raym. v. Lambard, 2 East, 575. Twy- 250. Pennant's case, 3 Co. 64, a. namv.Pickard,2Barn.&Ald.l05. Anon. Dy. 152, a. pi. 7. (q) Jones v. Jones, 12 Ves. (s) Dumpor's case, 4 Co. 119, 191. Macher v. The Foundling b. ; S. C. Cro. Eliz. 815, nora. Hospital, 1 Ves. & B. 191. Dumper v. Syms. Chap. XII.] underletting without License. 427 ever, lead to a different conclusion (t). To ob- viate the difficulty, a new covenant by the as- signee with the lessor not to assign without license should be inserted in the assignment ; with a fresh proviso for the landlord's re-entry on non-perform- ance of any of the covenants contained therein. A license once given is not defeated by a subse- quent grant of the lessor's reversion : the assign- ment by the lessee will be supported against the new reversioner (u). Under a proviso in a lease not to assign or demise V. Of the the premises without the consent of the lessor in C e" se ° re ^ writing, a parol license to underlet is not sufficient quired. in equity, any more than at law ; unless such parol license be used as a snare, and under circumstances which amount to a fraud ; in which case equity will give relief (v). Where a forfeiture of the lease has been incurred VI. Waiver by the lessee's non-observance of a proviso restrain- ° or ei ure ' ing alienation, the landlord may, at his election, avail himself of it to determine his tenant's interest. Many acts, however, may be committed on the les- sor's part, which the courts will construe to be a (0 Anon. Dy. 152, a. Thorn- Barn. & Cres. 486. hil v. King, Cro. Eliz. 757. (u) Walker v. Bailamie, Cro. Lloyd v. Crispe, 5 Taunt. 249. Jac. 102. Doe dem. Cheere v. Smith, 5 (v) Richardson v. Evans, 3 Taunt.795; S. C. 1 Marsh. 359. Madd.218. See Roe dem. Greg- Bally v. Wells, 3 Wils. 33 . Phil- son v. Harrison, 2 Term Rep. 425. pot v. Hoare, 2 Atk. 219; S. C. Littler v. Holland, 3 Term Rep. Ambl. 480. Paid v. Nurse, 8 590. 428 Of Covenants in restraint of assigning or [Part III. waiver of such forfeiture ; and as cases of forfeiture are not favoured in law (w), where once waived, the court will not render any assistance. Thus, if the lessor has full notice of the breach of the con- dition which gave him a right to re-enter, and does not take advantage of it, but accepts rent subse- quently accrued ; this will amount to a waiver ; for these acts evidence his intention that the lease shall continue (V) ; even though the rent be paid by the assignee (j/). But an acceptance of the rent after the day appointed, does not dispense with a forfeiture occasioned by the non-payment of that same rent at the stipulated time ; to oper- ate as a waiver, the rent received must grow due after the lessor's right of entry (z). It is also ne- cessary that the party, at the time of taking such rent, be acquainted with the fact of forfeiture ; a receipt given by a landlord for rent, subsequent to the time of forfeiture, shall be deemed to be an ac- knowledgment of the tenancy, in those cases only in which he is aware of the act of forfeiture, at the time (a). A lessor who has a right of re-entry reserved on a (w) Moody v. Garnon, Mo. (z) Greene's case, 1 Leon. 262. 848. Sanders v. Pope, 12 Ves. Anon. 3 Salk. 3. Co. Lit. 211, b. 290. (a) Roe dem. Gregson v. Har- (x) Goodright dem. Walter v. rison, 2 Term Rep. 425. Whitch- Davids, Cowp. 803. Arnsby v. cot v. Fox, Cro. Jac. 398 ; S. C. Woodward, 6 Barn. & Cres. 519. 1 Rol. 68. 389; 2 Bulstr. 290. {y) Whitchcot v. Fox, Cro. Pennant's case, 3 Co. 64, a. Jac. 398 ; S. C. 1 Rol. 68. 389; Marsh v. Curteis, Mo. 425; S. C. 2 Bulstr. 290. 2 And. 42. 90. Chap. XII.] underletting without License. 429 breach of covenant in restraint of assignment or un- derletting, is not, by waiving his re-entry on one under-letting, precluded from re-entering on the grant of a future under-lease (U). Before a court of equity will enforce a discovery whether the lessee has assigned his term without li- cense, the lessor must expressly waive any forfeiture occasioned by such assignment ; and although the bill admits the defendant to be assignee and tenant ; yet there is a difference between an implied affirming him to be tenant, and an express waiver of the for- feiture ; for if the defendant, in the former case, should make the discovery, the plaintiff might im- mediately bring an action thereon ; nor could the de- fendant come into equity for an injunction, which would be otherwise on the express waiver (c). Equity will not relieve against a breach of a cove- vil. Of nant not to assign without license : for the lessee eo i ultab j e re ~ ° net against cannot show, that by the assignment the lessor sus- forfeiture for tains no damage; that, on the contrary, he, the )reaci - lessee, is a beggar, who could not pay the rent, and that the assignee is a solvent tenant ; that the lessor is, therefore, in a better condition, having two per- sons answerable to him instead of one. The answer is, that the court cannot estimate the damage : the fact, as it is alleged, may be true ; but the con- (b) Roe dem. Boscawen v. Ab. 77. pi. 15. Lord Uxbridge Bliss, 4 Taunt. 735. v. Staveland, 1 Ves. 56. (c) Fane v. Atlee, 1 Eq. Ca. 430 Of Covenants in restraint of assigning or [Part III. sideration, whether the lessor is to gain or lose by having a tenant put upon him, must run through the whole continuance of the lease : it is sufficient that the lessor insists upon his covenant ; and no one has a right to put him in a different situation. In these cases, the law having ascertained the contract, and the rights of the contracting parties, a court of equity ought not to interfere (d). viii. Whe- On grants of leases much discussion has arisen, as ther it is an to t j ie mser ti on as a matter of right, of a covenant usual cove- . nant. prohibiting the lessee from disposing of the lease without his landlord's license. Agreements for leases seldom contain in detail all the clauses which are to be introduced into the lease itself; but commonly refer to them in general terms, as matters to be set- tled by the ordinary course and acknowledged prac- tice of common law. Where the agreement is totally silent as to the covenants to be contained in the lease, and expresses only that it is to contain the usual covenants, a fair question arises, What those usual covenants are. For a considerable period the point remained unsettled, the cases, by contrary decisions, warranting an opinion on either side : but whatever doubts may have formerly existed on the subject, they are now put an end to by a recent adjudication. Usual covenants have been defined to be, such as may be exacted independently of positive stipulation ; such as are incident to the nature of the contract, i (d) Hill v. Barclay, 18 Ves. 63. Chap. XI I. J underletting without License. 431 and presumably, therefore, in the contemplation of both the parties to that contract (e) ; and such as are calculated to secure the full effect of the agree- ment (f). It remains, therefore, to ascertain, whe- ther a covenant restraining alienation without leave, falls within the range of this definition. The first express declaration in judgment upon the very point, occurred in the case of Henderson v. Hay (g) ; where the agreement was for a lease of a public-house, upon " common and usual covenants," and the bill was filed for a specific performance. Lord Thurlow said, that common and usual covenants must mean covenants incidental to the lease ; that though the covenant not to assign without license might be a very usual one, as he believed it was, where a brewer or vintner let a public-house, that would not make it a common covenant. And a re- ference was directed to the Master generally to settle a proper lease, without any direction to omit the clause ; but with a declaration, that the defendant had no right to have a clause inserted restraining alienation without license. About a twelvemonth after, a case came before (e) Wilkins v. Fry, 1 Meriv. 189. See Bennett v. Womack, 263, 4. per Sir William Grant. 7 Barn. & Cres. 627. And see Bozon v. Farlow, 1 Meriv. (g) Henderson v. Hay, 3 Bro. 473. Harnett v.Yeilding, 2 Scho. C. C. 632. See Lord Eldon's &Lef. 556. Garrard v. Grinling, observations on this case, 15 Ves. 2Swanst. 249. 271. (f) Jones v. Jones, 12 Ves. 432 Of Covenants in restraint of assigning or [Part III. the court, at Nisi Prius (//), in which an opposite judgment was pronounced. The agreement de- clared, that the lease should contain " none but fair and usual covenants ;" and with the knowledge of the decision in Henderson v. Hay, which was cited to the court, Lord Kenyon held, that a covenant not to assign or underlet without the lessor's leave, was a fair covenant, as it provided properly for the interest of the party demising, and it sufficiently appeared to have been a usual one, so long since as Dumpor's case (J) ; and he said he had never seen a lease pro- perly drawn without it. The same point came before the Court of Exchequer three years afterwards (A), on a bill for a specific per- formance of an agreement for the lease of a public- house at Leeds, " with all usual and reasonable co- venants commonly inserted in leases of the same na- ture." By the evidence it appeared, that there was no regular local practice upon the subject, it being equally common in such leases to insert or omit the cove- nant in dispute. The court took time to consider ; and in the next term, Macdonald, C. B., after no- ticing the above contradictory cases, stated the opi- nion of the court to be, that the covenant, being so established in common practice, might fairly be considered as a common and usual covenant to be inserted in leases. The bill was dismissed ; but as the opposite decisions raised a case of fair doubt for (h) Morgan v. Slaughter, 1 (k) Folkingham v. Croft, 3 Esp. N. P. C. 8. Anstr. 700. (i) 9 Co. 119, b. Chap. XII.] underletting without License. 433 the plaintiff to bring into court, he was not to pay costs. Notwithstanding the last case was adjudged after mature deliberation, it appears that the decision was far from being satisfactory to the minds of the profession ; and the existence of four cases in controversy, three at the Rolls, and one before the Lord Chancellor, is decisive evidence that the point was not set at rest by the case in the Court of Ex- chequer. In two of the cases alluded to (/), the question came before the court, but did not form the ground of the determination in either. In Jones v. Jones, the bill prayed for a specific performance of an agree- ment to grant a lease " containing all proper cove- nants." With respect to the term proper covenants, Sir William Grant, M. R. observed : " The word proper admits different senses. There is no covenant almost, which a landlord can propose, that, generally speaking, could be called an improper covenant ; for he has a right to let his land upon any terms he may think fit to propose, and there are many covenants, not usual or common, that could not be objected to. But there are many covenants, though proper, that do not naturally flow out of the contract. The con- tract, locatio et conductio, does not naturally lead to many covenants that have now found their way into most leases, and cannot be said to be improper in many of them. But that cannot be the sense, with (I) Jones v. Jones, 12 Ves. 186. Vere v. Loveden, 12 Ves. 179. F F 434 Of Covenants in restraint of assigning or [Part III. reference to the insertion of this covenant upon the expression in this agreement. It cannot mean those covenants which would not be unreasonable. It must mean such as are calculated to secure the full effect of the contract." The circumstances of this case did not require an express judgment on the very point by the Master of the Rolls, but he most clearly declared his opinion to be, that if the question had arisen before any deci- sion hadbeenmade subsequent to that of Henderson v. Hay, he should have been much inclined to think with Lord Thurlow, that the meaning was, incidental cove- nants, not collateral covenants, which it might be very wise to impose, and to which many tenants would not object, but which ought to be the subject of treaty and separate agreement, not necessarily flowing from the agreement to let and to take. The other case, before Sir William Grant (m), was not a mere agreement for a lease with proper and usual covenants ; but it was an agreement which con- tained in great detail the terms which the lease was to contain, and it seemed to be drawn with much method and apparent skill (w). It was stipulated, that covenants should be contained, by and on the part of the tenant, his heirs, executors, administra- tors, and assigns, for payment of the rents, taxes, &c, for keeping the premises, and all the walls, gates, &c. in good repair, during the lease, and so leaving them (m) Vere v. Loveden, 12 Ves. (») Per M. R. Ibid. 183. 170. Chap. XII.] underletting without License. 435 at the determination thereof; also, in the usual man- ner, for the landlord to enter and see the state of the premises as to repairs. The agreement then con- cluded thus : " And lastly, it is agreed, that the lease shall take effect in possession from making thereof, and determinable on the lives aforesaid ; and therein shall be contained a clause of re-entry by the land- lord for non-payment of the rents, duties, and ser- vices, to be therein reserved, or for breach of any of the covenants on the tenant's part therein to be contained, and such other clauses as are usual in such cases. The defendant insisting that the lease to be granted should contain a covenant by the tenant against assigning and underletting without license, and refusing to grant a lease without that covenant, the bill was hied praying a specific performance. Here too, the case was determined on its own merits, without any reference to the general question which was the subject of the conflicting authorities before cited ; for it was holden, that the connexion of the last words in the agreement was with the clause of re-entry, mentioned immediately before ; and therefore, that the construction ought unques- tionably to be, clauses of the same kind as that with which those words were connected. But on the question of the clause against assignment being- usual, the Master of the Rolls declared himself to continue of the opinion he expressed in Jones v. Jones. The last case before Sir Wm. Grant on this subject, F F 2 43G Of Covenants in restraint of assigning or [Part III. was Browne v. Raban (o), in which the plaintiff had agreed to execute a counterpart of a lease " with usual covenants." If this question, said the learned judge, were to be decided for the first time, I should be disposed to agree with the opinion of Lord Thur- low in the case of Henderson v. Hay, that the con- struction ought to be, such covenants as are inciden- tal to the lease ; but Lord Kenyon having expressed his dissent from that opinion, and the Court of Ex- chequer having upon full consideration overruled it, I rather think the understanding of the profession now is, that this is a usual covenant, and is to be inserted, where there is an agreement for common and usual covenants. Subsequently to the delivery of this opinion, the case of Church v. Brown (/?), then depending before the Lord Chancellor, was decided, after a commu- nication between his Lordship and the Master of ,the Rolls ; upon which it was agreed, that the plain- tiff in Browne v. Raban, should take a lease without the covenant. This case of Church v. Brown, contains a review of all the preceding decisions, and is the leading authority on the subject. It was an agreement in general terms to grant a lease, without any stipula- tion respecting usual or common covenants. Lord Eldon, by whom the case was decided, considered, that independently of authorities, the meaning of the (o) Browne v. Raban, 15Ves. (p) Church v. Brown, 15 Ves. 528. 258. Chap. XII.] underletting without License. 437 parties to a contract for a lease was, that there should be proper covenants ; and that the law implied what they were, as connected with the title and character of the lessor: covenants in this sense incidental, as regulating the obligations expressed and implied ; not in contradiction to the quantity of interest, which the demise itself without special words was by the agreement to give to the lessee. And he deemed the right to assign, unless restrained, incident to the estate. And that the safest rule of property was, that a person should be taken to grant the interest in an estate which he proposed to convey, or the lease he proposed to make ; and that nothing which flowed out of that interest, as an incident, was to be done away by loose expressions, to be construed by facts more loose ; that it was upon the party, who had forborne to insert a covenant for his own benefit, to show his title to it ; and that it was safer to re- quire the lessor to protect himself by express stipu- lation, than for courts of equity to hold, that con- tracting parties should insert, not restraints expressed by the contract, or implied by law, but such, more or less in number, as individual conveyancers should from day to day prescribe as proper to be imposed upon the lessee ; and that all those restraints so im- posed from time to time, should be introduced as the aggregate of the agreement. He thought that Lord Thurlow's authority, in 1791, was not treated with all the respect that was due to it in the subse- quent period ; and acting upon his own clear opinion of what the law was, he decreed that the lessor was not entitled to such a covenant. 438 Of Covenants in restraint of assigning or [Part III. The cases of Morgan v. Slaughter, and Folkingham v. Croft, are therefore overruled; and Henderson v. Hay re-established ; and the opinion of the Master of the Rolls in Jones v. Jones, and Vere v. Loveden, fully confirmed by this decree. We may here also remark, that prior to the case of Henderson v. Hay, there is no one instance that such a covenant as this was conceived to fall within the description of usual co- venants. Dumpor's case (q) proves no more than the fact, that there was in that instance such a pro- viso ; not that it is a usual covenant, and on that account to be inserted in all leases. Whether the words with usual covenants, or other words of that kind, be introduced into the contract or not is evidently quite immaterial ; for in every agreement relating either to freehold or leasehold estates, it is implied that there shall be usual and proper covenants. Before the case of Henderson v. Hay, an agreement for a lease would have been executed precisely in the same mode, as to covenants to be inserted, whether that clause had been con- tained in it or not : so would an agreement for the conveyance of a real estate. And with great anxiety to be right upon this point, Lord Eldon said, he never would consent that his opinion should be sup- posed to stand upon such a distinction (r). Still less can any stress be laid on the insertion or omission of the words assigns in the agreement. (q) Dumpor's case, 4 Co. 119, b. (r) 1.5 Ves. 272, 3. Chap. XII.] under letting without License. 439 If the agreement be to grant a lease to a man, his executors, administrators, and assigns, with a pro- viso that the intended lessee, his executors, or ad- ministrators, shall not assign without license, there is no more repugnancy in this proviso, than in an estate to a man and his heirs, with a subsequent re- striction to heirs of a particular description. The assigns must be understood to be such as upon the whole, taken together, the lessee may lawfully have : viz. assigns with license ; and upon reference to books of conveyancing, that will appear to be .the form in which these leases are made, viz. to assigns, with a proviso that neither the lessee, nor his assigns, shall as- sign without license (s). And the same opinion was en- tertained by Lord Eldon, in Church v. Brown (f) ; he said, his judgment was formed upon grounds that made him lay out of consideration the small reason- ing, as he termed it, upon the word assigns ; since if the lease were to be made to the lessee, his exe- cutors, or administrators, his assigns would be in- cluded in himself. In the course of argument by counsel, attempts have been made to draw a distinction between the different kinds of property which were the subject of demise ; and to extend to some the protection of this particular clause, and at the same time to deny it to others. A public-house has been endeavoured to be placed on this favourable footing, on the supposition (s) Weatherall v. Geering, 12 Browne v. Raban, Ibid. 530. And Ves. 511. see Verev. Loveden, 12 Ves. 183. (0 15 Ves. 268. Ibid. 264. 440 Of Covenants in restraint of assigning or [Part III. that an assignee without the landlord's consent might, by negligent or improper conduct, occasion a for- feiture of the publican's license ; and it has been urged, that, with reference to this peculiar species of property, the decisions in Morgan v. Slaughter and Folkingham v. Croft were made (11). The distinction, however, is untenable : it has been designated as a most dangerous proceeding (y). And it appears, that an agreement for the lease of a public-house, where nothing more is expressed, cannot be carried into execution in a different manner from an agreement as to property of another species, with regard to which, though there may not be the same reason, the landlord may have reasons operating upon him just as powerfully for requiring the restraint (w). This doctrine is, moreover, uniform with the deter- mination in Henderson v. Hay, where Lord Thurlow rejected a covenant of this sort, notwithstanding the subject of agreement was a public-house. It must be observed, that if the agreement be, in general terms, to make a lease " with usual cove- nants," without allusion to special local custom, these covenants shall be intended usual all over England, and not those usually entered into in that particular county in which the lands may lie. Thus, on an agreement for lands in Norfolk and the Isle of Ely, where the landlord usually covenanted to repair, the plaintiff, seeking a lease, was decreed liable to the re- (m) See 12 Ves. 180. 181. And 267. 15 Ves. 261. (w) Ibid. 269. (v) Per Lord Eldon, 15 Ves. Chap. XII. J underletting without License. 441 pairs, notwithstanding the contrary usage of Norfolk ; but the court held, that the case might have had a dif- ferent construction, if the defendant had been plaintiff, to enforce the other party to take a lease (a?). Should, however, the agreement refer to any particular local usage, as was the case in Boardman v. Mostyn (3/), where the words were, " with the usual and custom- ary covenants of the neighbourhood ;" or to usage with respect to the peculiar subject of the demise, as in Folkingham v. Croft (s), the words being, " with all usual and reasonable covenants commonly inserted in leases of the same nature;" the court would insti- tute an inquiry whether a covenant in prohibition of assignment were a customary covenant of the neigh- bourhood or not ; and if it had the means of disco- vering such regular local practice, it would impose a check on the power of alienation without license accordingly. Where premises, taken under a demise, containing a proviso, that the lessees should not assign without the license of the landlord in writing, were sold un- der a decree to a purchaser, who paid his pur- chase money into court, and was let into possession ; to a bill filed against the landlord, who refused to concur in the assignment, praying that he might, un- der the circumstances, be decreed to give his license in writing, the purchasers were holden to be necessary parties ; as they might, at a future period, file another (x) Burwell, or Burrel, v. Har- Ves. 467. Church v. Brown, rison, Prec. Ch. 25; S. C. 2 15 Ves. 267. Vern. 231. (z) 3 Anstr. 700. (y) Boaidrmtn v. Mostyn, 6 442 Of Covenants in restraint of assigning, &?c. [Part III. bill, insistingon the same equity ; so that the defendant might be harassed with two suits relating to the very same matter, and praying the very same relief (a). In conclusion ; the vendor of a lease containing such a covenant, and not the vendee, is bound to obtain the lessor's license (b). (a) Maule v. The Duke of 249. Mason v. Corder, 7 Taunt. Beaufort, 1 Russ. 349. 9 ; S. C. 2 Marsh. 33. (6) Lloyd v. Crispe, 5 Taunt. CHAPTER THE THIRTEENTH. OF COVENANTS RESTRAINING THE EXERCISE OF PARTICULAR TRADES. Leases very generally contain a covenant restrain- ing the exercise of certain specified trades on the premises ; and sometimes they go further, and totally prohibit the carrying on of all trades and businesses whatever. Covenants of this kind, as they affect the mode of occupation or enjoyment (a), will run with the land ; and consequently, an assignee will be liable to an action for damages, or to forfeiture on the condition for re-entry, if he use the property demised in contravention of such an agreement. Ac- cordingly, where a lessee of a house and garden for a term of years covenanted with the lessor, that he would not use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business whatsoever, without the license of the lessor; and afterwards, without his license, he assigned the lease to a schoolmaster, who carried on his business in the house and premises ; the court entertained no doubt that this was a busi- ness within the meaning of the covenant, and one which was likely to create as much annoyance as could be predicated of almost any business ; and (a) Mayor oi' Congleton v. Pattison, 10 East, 136. 444 Of Covenants restraining the [Part 111. particularly as the exhibition of the boys might be said somewhat to resemble a shew of business within the terms of the covenant (b). So, if one covenants that he will not let the shop, yard, or other thing belonging to the house, to any one who shall sell coals, and will not himself sell coals there, and then he lets the whole house to one who sells coals, this is a breach of the cove- nant (c). In another case (d), the lease contained a covenant that the lessee, his executors, &c, would not permit or suffer any person or persons to inhabit or dwell in, use, or occupy, the said demised premises, or any part thereof, who should use or exercise therein or thereupon the trades or businesses of a brewer, baker, butcher, poulterer, fishmonger, fruiterer, &c, without the consent in writing of the said lessor, his executors, administrators, or assigns. The defend- ant took the house, and fitted it up as a chandler's shop, in which various articles of provisions, &c. were sold : he was also in the habit of selling meat in a raw state to all his customers. There was no ex- posure of it at the shop window, but it was in the interior shop, visible, however, to those who passed by the house, if they chose to look in ; but he did not kill any animals there. The court said, that the real object in all these cases was, to prevent the (b) Doe dem. Bish v. Keeling, (d) Doe dem. Gaskell v. Spry, 1 Mau. & Selw. 95. 1 Barn. & Aid. 617. See also (c) Chinsley v. Langley, I Rol. Doe dem. Davis v. Elsam, 1 Ab. 427. pi. 7. Mood. & Malk. 189. Chap. XIII.] R.i'crcisc of particular Trades. 445 lowering of the tenement in the scale of houses, by the exercise, whether wholly or partially, of those trades, which, in the judgment of the lessor, were likely to prevent tenants from afterwards taking the premises, and which, by so doing, might depreciate their value at a future period ; that it was not neces- sary for a man to carry on every branch of a trade, in order to come within the proviso of the lease ; but it would be quite sufficient if he partially car- ried it on there : and they held, that he did in this case exercise a material part of it, for he exposed the meat for sale, which had, either by him or his as- sistants, been slaughtered elsewhere. But where a lessee covenanted that he would not do, or suffer to be done, any act, matter, or thing, upon the demised premises, which might be, grow, or lead to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to any part of the neighbourhood ; and the lease contained a pro- viso for re-entry, in case the lessee should permit any person to inhabit the premises, who should carry on certain specified trades or businesses, (that of a licensed victualler not being one of those enume- rated,) or any other business that might be, or grow, or lead to be offensive, or any annoyance, or dis- turbance to any of the lessor's tenants ; it was de- termined, that the opening of a public house upon the premises was not a breach of the covenant or proviso (e). (e) Jones v. Thorne, 1 Barn. Ry. 152. See Gorton v. Smart, & Cres. 71.5 ; S. C. 3 Dow. & 1 Sim. & Stu. 68. 44 G Of Covenants restraining particular Trades. [Part III. If the covenant be, not to carry on certain trades without the lessor's previous consent in writing, his mere silent acquiescence in the exercise of one of the forbidden trades, does not raise an inference in the lessee's favor, that, commencing with that trade, he may afterwards carry on any other without the requisite license (/*). (/) Macher v. The Foundling Hospital, 1 Ves. & B. 188. PART THE FOURTH. OF THE LIABILITIES AND RIGHTS ARISING FROM COVENANTS, AT COMMON LAW, AND BY VIRTUE OF THE STATUTE 32 HEN. VIII. c. 34. We now proceed to consider the consequences of the contract, with reference to the several liabilities and rights thereby created. They shall be noticed in the following order : — Chapter the First. Of the liabilities at Common Law of. I. The Covenantor. II. The Heir. III. The Devisee. IV. The Executor or Administrator. V. The Assignee. Chapter the Second. Of the rights at Common Law of, I. The Covenantee. II. The Heir. III. The Devisee. IV. The Executor or Administrator. V. The Assignee. Chapter the Third. Of these liabilities and rights, as they are imposed by, or acquired under, the statute 32 Hen. 8. c. 34, relating to grantees of reversions, &c. CHAPTER THE FIRST. OF THE LIABILITIES AT COMMON LAW. SECT. I. OF THE LIABILITY OF THE COVENANTOR. I. Of the Immediately on the execution of the deed, the the cove- covenantor is charged with the performance of a cer- nantor. tain specified duty ; the covenantee, at the same time, deriving a title to the observance and benefit of the contract. A neglect of performance or breach of the agreement invests the latter with a right of action for redress at law ; and subjects the former to the liability of rendering pecuniary compensation in damages, as the price of his default, in proportion to the injury sustained by the covenantee. It will not be necessary to dwell on the liability of the co- venantor further than to remark, that the duty of per- formance accrues instantly on the creation of the covenant. SECT. II. OF THE LIABILITY OF THE HEIR. II. Of the The cases in which an heir is chargeable on his an- thehefr. cest or's covenant may be stated in a few words. Two circumstances must concur to create his lia- Chap. 1 .] Of the Liability of the liar. ■14!) bility : First, it is requisite, that the terms of the covenant specially provide for its performance by the heir : And, Secondly, that the heir have assets by descent from the covenantor to answer the claim (a) ; for though the covenant descends to the heir, whether he inherits any estate or no; it lies dormant, and is not compulsory, until he has assets by descent (//). Where the covenant arises by implication of law, the heir, as, of course, he cannot be named therein, will not in general be bound. Therefore, where a lease is granted to his ancestor, with a reservation of rent on the words yielding and paying, which, we have seen (c), create an implied covenant, an action for non-payment will not lie against the heir (d). But where a man seised in fee simple makes a lease by the words, demise, grant, and to farm let, without any warranty in the deed, or any express covenant that the lessee shall enjoy the term, and dies, and his heir in by descent ousts the termor, he shall, it seems, (a) 2 Bla. Com. 243. 304. Anon. Dy. 14, a. pi. 69. 1 Dy. 23, a. (142). 3 Dy. 257, b. cites 4 E. 3. 57. pi. 71. 7 E. 3. 65. pi. 67. Br. Ab. Garranties, pl.89. Vin. Ab. Covenant, (D.) pi. 2. Shep. Touch. 178. 363. Co. Lit. 374, b. Cook v. The Earl of Arundel, Hardr. 87. Dyke v. Sweeting, Willes, 585. See also Barber v. Fox, 2 Saund. 136; G S. C. 1 Vent. 159; 2 Keb. 811. 836. Woodward v. The Earl of Lincoln, Finch, 86. Derisley v. distance, 4 Term Rep. 75. Pool v. Pool, 1 Ch. Rep. 18; S. C. Toth. 170. (b) 2 Bla. Com. 243. (c) Ante, p. 50. (d) Newton v. Osbom, Sty. 387. 450 Of the Liabilities at Common Law. [Part IV. have an action of covenant against the heir for the privity, &c. (e). Secondly, with regard to the assets : It is to be understood, that in order to constitute funds for satisfying the covenant, they must have descended from the covenantor : lands taken by descent aliunde, are not available to the covenantee. If, therefore, a father covenants for himself and his heirs to pay rent, or a gross sum of money, or to repair, or per- form any other duty, and dies, having neglected to observe his agreement ; an estate derived by his heir, by collateral inheritance from a brother, or other relation, not being an estate inherited from the father, will no more be subject to the demands of the covenantee, than lands originally purchased by the heir at law. But should assets by descent vest in the heir, it ap- pears, that the charge will continue to run against his heir taking the same assets. A man seised in fee hath issue two sons, and binds himself and his heirs in a bond, and dies seised of assets ; and the eldest son enters, and dies without issue ; the youngest son enters ; he shall be charged by these assets as son and heir to his father, although there was an inter- mediate descent to the eldest ; by the opinion of Wray, Chief Justice, Manwood, Chief Baron, Dyer, Chief Justice of the Bench, and Meade. And the same is the law of grandfather, father, and son. So, also, is the law of a grandfather and two daughters, who have two sons, the grandfather is bound for (c) Swan v. Stransham, Dy. 2.57, b. Andrew's case, 2 Leon. 104. Chap. I.] Of the Liability of 'the Heir. 451 himself and his heirs, and dies seised of assets ; the daughters enter, and die without partition made ; the sons enter : they shall be charged (/). Without entering more largely into the inquiry of what shall be considered assets (g), we may notice, that before the statute of frauds (A), descended trust estates were not assets in the hands of the heir ; but by that statute it is enacted (/'), that " if any cestui que trust hereafter shall die, leaving a trust in fee-simple to descend to his heir, there and in every such case, such trust shall be deemed and taken, and is hereby declared to be, assets by descent, and the heir shall be liable to, and chargeable with the obligation of his ancestors for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession in like manner as the trust descended.' 1 And by this act estates pur autre vie are subject to the same de- mands ; the 12th section providing, that any estate pur autre vie shall be deviseable in manner thereby directed ; "and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occu- pancy, as assets by descent, as in cases of lands in fee simple." (/) Anon. Dy. 368, a. pi. 46. liams on the case of JetfVeson v. Jenks v. , Cro. Car. 151. Morton, 2 Saund. 8, d. 5th edit. Holleyv. Weeden, 2Ch. Ca. 175. (h) 29 Car. II. c, 3 Davy v. Pepys, Plowd. 441. (i) Sec. 10. King v. Ballett, (g) For this learning- the stu- 2 Vein. 248 ; S. C 1 Eq. Ca. dent may refer to a most elaborate Ab. 241. pi. 4. and learned note by Serjeant Wil- G G 2 452 Of the Liabilities at Common Law. [Part IV. A right of action against the heir, in respect of such assets by descent, cannot, it is apprehended, be defeated by his alienation of the estates prior to the commencement of, or pending, legal proceed- ings : the charge once attaching will, it is supposed, continue in operation against him and his personal representatives, for the benefit of the covenantee, or his representatives, until compensation be made for any breach of the covenant committed during the lifetime, or even after the decease of the ancestor (k). In an action against the heir, the plaintiff need not allege in the declaration, that the heir had lands by descent; for, as the want of such assets forms a good ground of defence, it is left to the defendant to plead that he had none(/). SECT. 111. OF THE LIABILITY OF THE DEVISEE. III \ P f ll ! e A devisee is not liable, in respect of the lands de- the devisee, vised, to an action of covenant for a breach of the testator's agreements. At common law, neither debt nor covenant lay against the devisee ; but the legis- lature have given a remedy against him by the sta- tute, entitled, " An act for the relief of creditors (k) See 3 W. & M. c. 14. s.5. Wms. 777 ; S. C. Prec. Ch. 51 1 ; (I) Dyke v. Sweeting, Willes, 2 Eq. Ca. Ab. 498. pi. 19. 585. Coleman v. Winch, 1 P. Chap. I.] Of the Liability of the Devisee, 8$c. 453 against fraudulent devises " (in) : that remedy, how- ever, is express, and is confined to the action of debt. And though the word specialties is used as well as bonds, yet, construing the whole together, it must be confined to those specialties on which the action of debt lies : And whoever looks at the statute attentively will see that such must have been the intention of the legislature, for it speaks all through of debts ; but a mere breach of covenant cannot be considered as a debt (n). Hence, the advantage of taking a bond for performance of covenants. A sum of money, however, secured by covenant, will consti- tute a debt (o) ; and the testator's lands in the hands of a devisee will, consequently, be liable, in an action of debt, to the liquidation of the claim (p). SECT. IV. OF THE LIABILITY OF THE EXECUTOR OR ADMINISTRATOR. The executors or administrators of every person are iv. Of the implied in himself, and liable, in respect of assets, Jf y °J for covenants broken in the testator's lifetime ((f), and or adminis- for the performance, after his death, of such cove- ra or ' O) 3 W. & M. c. 14. (p) March v. Freeman, 3 Lev. (n) Wilson v. Knubley, 7 East, 383. 128 ; S. C. 3 Smith, 123. (q) Hyde v. Skinner, 2 P. Wms. (0) Plumer v. Marchant, 3 197. Anon. Dy. pi. 69. Hyde Burr. 1380. Earl of Bath v. v. The Dean, &c. of Windsor, Earl of Bradford, 2 Ves. 587, 9. Cro. Eliz. 553. F. N. B. 145. H. 454 Of the Liabilities at Common Law. [Part IV. mints as relate to the personalty, as to pay a sum of money, &c. (r); and this, notwithstanding- the party covenants for himself and his assigns, without nam- ing executors ; for an executor or administrator is an assignee in law (s). It is said, if one covenants that his executors shall pay ten pounds to B., an action cannot be supported against the executors ; and the reason given is, because it cannot be a debt in the executor where it was no debt in the tes- tator (f) ; but the law of this case is rather doubtful ; as the testator was himself bound, the lien, it is ap- prehended, would fall on his executors, although he himself never became liable to be sued (u). If lessee for years covenants for himself, that he will within the first three years build a new house, and dies after the expiration of the term, without performing his covenant, his executors will be charge- able^). Or if he covenants to repair the demised premises within six years, and dies within the six years, the executors are bound to make the repara- tion ; for it may be made by them within the six years as well as by the testator (w). And so long as (r) Shep. Touch. 78.482. Dy. 232. Co. Lit. 386, a. 1 Bulstr. 23, a. Ru-shden's case, Dy.4,b. 23. Brice v. Carre, 1 Lev. 47 ; S. C. (u) Plumer v. Marchant, 3 1 Keb. 155. Fountain v. Gnales, Burr. 1383. Comb. 59 ; S. C. nom. Fountain (v) Anon. Dy. 14, a. pi. 69. v. Guavers, 2 Show. 333 ; Skin. Latch, 261 . 146. (w) 6 Vin. Ab. 383,4. 10 (s) Anon. Mo. 44. pi. 136. H. 7. 18. pi. 4. Bro. Ab. Cove- 1 Bulstr. 23. nant, pi. 50. 4 Leon. 171. (t) Perrotv. Austin, Cro. Eliz, Chap. [.] Of the Liability of t lie Executor, fyc. 455 the executor has assets, he must perform the cove- nants contained in a lease granted to his testator; nor will an assignment ('#), even with an acceptance of the rent by the lessor of the assignee, relieve the executor from the charge (?/). In one case, an assignee of a lease, being evicted, received from the assignor 40/. in satisfaction for his being ejected, and afterwards brought covenant against the lessor's executor on the covenant for quiet enjoyment : he pleaded the acceptance of the 40/. in satisfaction of the wrong done, in bar of the action : and the court held, that the plaintiff might have two actions, and therefore was not barred of the action against the executor, by the payment of the 40/. ; but it would have been otherwise, if he had pleaded that the sum was given in satisfaction of both the covenants (z). A sale was to be made of a parcel of land, and it was agreed, between the plaintiffs and the defend- ant's testator, that if it should not produce a certain sum, then they should repay each other proportion- ably to the abatement ; and the defendant's testator covenanted for himself and his executors, to pay his proportion to the plaintiffs, so that the plaintiffs should give him notice in writing of the said sale, by the space (:c) Pitcher v. Tovey, 1 Salk. (?/) Brett v. Cumberland, Cro. 81 ; S. C. 1 Show. 340 ; 4 Mod. Jac. 522 ; S. C. 1 Rol. 359. 71; 2 Vent. 234; Carth. 177; Bachelourv.Gage,Cro.Car.l88; 3 Lev. 295 ; Holt, 73; 12 Mod. S. C. Sir W. Jo. 223. 23 ; 1 Freem. 326. Wilkins v. (z) Whilway v. Pinscnl, Sty. Fry, 1 Meriv. 265. 300. 456 Of the Liabilities at Common Law. [Part IV. of ten days ; but it was not said, that such notice was to be given to his executors or administrators. The whole court agreed, that, as the covenant ran in interest and charge, the executor was bound to pay the testator's proportion, although the notice was given to the executor and not to the testator (a). Some covenants there are which require personal performance by the covenantor, and do not extend to his executors or administrators, except in the case of a breach committed by the testator during his life (b). Thus, one William Cooke, the plaintiff's intestate, being a newsman, and entitled to receive every morning thirty copies of the Daily Advertiser, assigned his right to the same, and all other his bu- siness of a newsman to the defendant, and cove- nanted, " that he the said William Cooke should not thereafter exercise the business of a newsman, but should use his utmost endeavours to procure for the said defendant, his customers in the said busi- ness." And in consideration of the premises, the defendant covenanted to pay eight shillings a week to the said William Cooke, his executors, adminis- trators, and assigns, during the lives of the said Wil- liam Cooke and Ann his wife, and the survivor of them. Cooke died, and his wife took out adminis- tration, and commenced the business of a newspaper vender on her own account. The court held, that the administratrix was not bound by the covenant, and grounded their judgment on the difference of (a) Harwoodv. Hilliard,2 Mod. (b) Hyde v. The Dean of Wind- '268. See also Thurseden v. War- sor, Cro. Eliz. 553. Hyde v. then's executors, 2 Bulstr. 158. Skinner, 2 P. Wms. 196. Chap. 1.] Of the Liability of the Executor, fyc. 457 expression in the two clauses, viz. that Cooke him- self, without naming his executors, &c, should ab- stain from the business of a newsman, but that the payment was to be made to him, his executors, &c. ; that this was now payable to the plaintiff, not as wife, but as administratrix of William Cooke, and was assets for the payment of his debts ; besides, it would be very hard, they said, to bar her from exer- cising a lawful occupation for her own livelihood, in consequence of this personal covenant of her hus- band (c). So, if a lessee for years covenants for him- self to repair the houses demised, omitting other words, it seems, he is bound to repair only during his life, and the executors or administrators are not bound (7/). And if a lessor covenants for himself only to discharge the lessee of all quit-rents out of the land, it seems, this covenant is only personal, and will bind the covenantor only during his life (e). But if in these cases the words during the term be added in the covenant, as on a covenant by a lessee for himself to repair the houses during the term, or on a covenant by a lessor for himself to discharge the lessee of all quit-rents during the term : in these cases, it appears, the executors and administrators also will be charged (/). For breaches of covenant by the testator himself, the executor is chargeable de bonis testatoris only (g). And unless he enter on the property demised, he is (t) Cooke v. Colcraft, 2 Wm. executors, Dy. 1 14, a. Blac. 856 ; S. C. 3 Wife. 380. (/) Shep. Touch. 178. 482. (d) Shep. Touch. 178. (g) Jevensv.Harridge, 1 Saund. (c) Ibid, Ingery v. Hyde'? l.note. 4.58 Of the Liabilities at Common Law. [Part IV. not chargeable upon the covenant of his testator de bonis propriis, although it be broken in the time of the executor ; for it is the testator's covenant which binds the executor in his representative capacity ; and by that name, and in that capacity, must he be sued. If, therefore, the executor before entry omits to repair the demised premises (K) ; or assigns over the lease without giving notice thereof agreed to be given to the lessor (i) ; he is only liable de bonis testatoris. But after an entry by the executor on the premises, the lessor has the option of suing him for breaches in his own time, either as executor, or as assignee (k) ; and if he be sued in the latter character, stating generally in the declaration, that the estate of the lessee in the premises lawfully came to the defendant, without naming him executor, the judgment will be de bonis propriis (/). After his assignment over, he is not liable de bonis pro- priis (m). On an implied covenant, an action may, it seems, (h) Anon. Dy. 324, b. pi. 34. (0 Tilney v. Norris, Carth. Collins v. Thoroughgoocl, Hob. 519; S. C. 1 Salk. 309; 1 Lord 188. Bull v. Wheeler, Cro. Jac. Raym. 553. Keeling v. Morrice, 647 ; S. C. nom. Bull v. Winter, 12 Mod. 371. Wilson v. Wigg, Palm. 314. Dean and Chapter 10 East, 313. See likewise Lord of Bristol v. Guyse, 1 Saund.l 41. Rich v. Frank, 1 Bulstr. 22; Castilion v. Smith's executors, S. C. Cro. Jac. 23S. Bailiffs, Hob. 283. &c. of Ipswich v. Martin, Cro. (i) Bridgmanv.Lightfoot, Cro. Jac. 411; S. C. 1 Rol. 404. Jac. 671. Sackvill v. Evans, Freem. 171. (k) Buckley v. Pirk, 1 Salk. (m) Boulton v. Canon, Freem. 317; S. C. 10 Mod. 12. Lyd- 336.393. Jenkins v. Hermitage, dall v. Dunlapp, 1 Wils. 4. Freem. 377 ; S. C. 3 Keb. 367. Chap. I.] Of the Liability of the Executor, <§r. 459 be maintained against the executor or administrator of a lessor, if the lessee be lawfully evicted during the lifetime of the lessor («) ; but unless the cove- nant be broken before the testator's death, the exe- cutor is not responsible (o) ; for on this kind of covenant, the liability of the executor ceases with the determination of the estate in respect of which the law created the covenant. Hence, where te- nant for life, with remainder over in fee, demised to another for fifteen years, and died before the ex- piration of the term, upon which an entry was made by the remainder-man on the lessee ; it was held by the court, that an action could not be supported by the lessee against the executor of the tenant for life upon the covenant in law, because by his death the estate and covenant determined ; though it was agreed, that it would have been otherwise on an ex- press covenant for quiet enjoyment (p). So if tenant in tail makes a lease for years and dies without issue, the covenant terminates with the estate (g). A debt, we may mention, arising by a covenant, is a demand by specialty, and is of an equal nature (n) Swan v. Stransham, Dy. Netherton v. Jessop, Holt, 412. 257, a. ; S. C. nom. Swann v. Bragg v. Wiseman, 1 Brownl. & Scarles and Stranson, Mo. 74 ; Gold. 22. Brudnell v. Roberts, S. C. And. 12 ; Benl. 150. 2 Wils. 143. Andrew v. Pearce, (o) Procter v. Johnson, 2 1 New Rep. 158. Gervisv. Peade, Brownl. 214. Newton v. Osborn, Cro. Eliz. 615. Sty. 387. Porter v. Swetnam, (q) Landydale v. Cheney, Cro. Sty. 407. Eliz. 157 ; S. C. 1 Leon. 179. (p) Swan v. Stransham, supra. 400 Qf the Liabilities at Common Law. [Part IV. with other specialty debts (r). Therefore, a cove- nant by a settlor in a marriage settlement, that the premises are free from incumbrances, will rank equally with debts on bond (s). And where one before marriage covenanted with two trustees, that he would by will, or that his executors or adminis- trators should within six months after his death, pay out of his personal estate the sum of 700/. unto the said trustees or the survivor, &c. ; the interest to be paid to his wife for life, and after her decease, the principal to be divided among his children, and in default of issue, as he should by will appoint ; and he bound himself in the penalty of 1400/. ; and after his death, in his wife's lifetime, one of the trustees took out administration ; the court held, that the ad- ministrator might retain assets to the amount of 700/. against a bond creditor, who had commenced an action before the expiration of the six months (/). SECT. V. OF THE LIABILITY OF THE ASSIGNEE; WITH PRELIMINARY REMARKS ON COVENANTS RUN- NING WITH THE LAND. Preliminary Perhaps no branch of the law of covenants is less remarks. understood than that which forms the subject of the (r) Plumer v. Marchant, 3 Ab. 292. pi. 39 ; 3 Bac. Ab. 81. Burr. 1380. Earl of Bath v. Earl (t) Plumer v. Marchant, sup. of Bradford, 2 Ves. 587, 9. See Simmons v. Bolland, 3 Me- (s) Parker v. Harvey, 11 Vin. riv. 547. Chap. I.J Of the Liability of the Assignee. 4G1 present division. The expression of " covenants run- ning with the land," is, indeed, familiar to all per- sons engaged in professional pursuits ; but much useful information concerning them, yet remains. to be imparted. An attempt will be made in this place to examine the nature of these covenants, and to elucidate the principles on which they are made to run with the land. In order to make a covenant run with the land, whether the estate be granted for an estate of in- heritance, or for a term of years, the performance or non-performance of it must affect the nature, quality, or value of the property conveyed, independently of collateral circumstances, or must affect the mode of enjoying it (u). It is not sufficient that a covenant is concerning the land ; but to make it run with the land, there must be a privity of estate between the contracting parties. Therefore, where a mortgagor and mortgagee made a lease for years, and the les- see covenanted with the mortgagor and his assigns, to pay the rent and keep the demised premises in repair ; the court held, that, as the mortgagor had no interest in the land of which a court of law could take notice, an equity of redemption being an in- terest recognized in equity only, the covenants were merely collateral, and could not run with the land, so as to enable the assignee of the mortgagee to take advantage of them (w). And though a party may covenant with a stranger to pay a certain rent, (w) Mayor of Congletonv, Pat- (w) Webb v. Russell, 3 Term tison, 10 East, 130. Rep. 393. 4G2 Of the Liabilities tit Common Law. [Part IV. in consideration of a benefit to be derived under a third person ; yet such a covenant cannot run with the land (ai). And in the case above put, notwith- standing the mortgagor himself, being the cove- nantee, or his executors or administrators, could maintain an action on the covenant (3/), yet no such right could be transmitted to an assignee on a pur- chase of the equity of redemption, the covenant being merely personal and collateral to any estate in the mortgagor (z). Upon the same principle, if a lease be made by a trustee and his cestui que trust, and the covenants be entered into with the cestui que trust, an action cannot be maintained on these covenants by a purchaser of the reversion, in consequence of their being collateral to the reversion. So it seems, on a conveyance in fee to a trustee, if the covenants for title be entered into with the cestui que trust, these covenants cannot run with the land. It is essential, therefore, that they be made with the person having the legal estate. The learned author of the Treatise on Vendors and Purchasers observes (a) : " The proposition be- fore stated, that it is not sufficient that a covenant is concerning the land, but in order to make it run with the land there must be a privity of estate be- tween the covenanting parties, seems to apply as (x) Ibid. 402. 562. (y) Stokes v. Russell, 3 Term (z) Ibid. 1 H. Blac. 566. Rep.678; S.C. Russell v. Stokes, (a)Sugd. Vend.&Purch. 544. affirmed in error, 1 Hen. Blac. 6th edit. Chap. I.] Of the Liability of the Assignee. 4G3 well to covenants entered into by a vendor, as to covenants entered into by a purchaser. But the consequences of this doctrine are truly alarming. In a great proportion of cases, the vendor has either mortgaged the estate in fee, or is a mere cestui que trust ; and if his covenants were to be deemed cove- nants in gross, the assignees of the land could only compel performance of the covenants by the cir- cuitous mode of using the name of the first purchaser or his representatives, whom at the distance of some years it might be very difficult to trace. It seems impossible to get over the objection, by the form of the covenant ; for although the vendor covenant with the purchaser, his heirs and assigns, yet the assignee of the lands will not be entitled to the benefit of the covenant, unless it run with the land under the gene- ral rule of law. The only mode by which the diffi- culty can be avoided is, to require the vendor to take a conveyance to himself in fee, or to the usual uses to bar dower, previously to executing a convey- ance to the purchaser ; and this I believe, has been sometimes done since it was first suggested in this work. If, indeed, the objection should be thought to exist, it might also be thought, that where the ven- dor conveys the estate to the purchaser under the usual power of appointment, the covenants will not run with the land, but this, it is conceived, would be carrying the rule much too far ; and there seems to be some ground to contend, that even in Roach v. Wadham, as the power was coupled with an interest, the second purchaser might have been held to have come in under, and to stand in the place of the first purchaser, so as to satisfy the rule of law, although 404 Of the Liabilities at Common Laic. [Part IV. he did not actually, as it was determined, take the estate of the first purchaser. The point, however, was considered as clear, and was not discussed either at the bar or upon the bench." And if a privity of estate exists at the time of the making the covenant, yet if a subsequent purchaser does not take the estate of his immediate vendor, he will not be liable to the performance of a covenant entered into by such vendor with the preceding ven- dor. To render this proposition more intelligible, the case from which it is deduced must be set forth. An estate was conveyed to a trustee, habendum to him and his heirs, to the use of such person, and for such estate, as one W. should by deed, &c. appoint ; and for want of such limitation, to the use of W. and his heirs ; and the same conveyance reserved a certain fee-farm rent to the chief lord ; and contained a covenant by W. his heirs and assigns for the pay- ment of it : Afterwards, by indentures of lease and release, to which W. and his trustee were parties, after reciting the former conveyance, the trustee, by direction of W., did grant, bargain, sell, and release, and W. did grant, bargain, sell, alien, release, ratify, and confirm, and also direct, limit, and appoint, to the purchaser and his heirs, all their estate, title, interest, use, trust, &c, in law and equity, subject to the reserved rent, and to the performance of covenants on the part of W. to be performed ; and the pur- chaser also covenanted with W. to pay the said rent, and to indemnify and save him harmless. The court held, that the purchaser took the estate by the ap- pointment of, and not by conveyance from W. ; and in Chap. I.] Of the Liability of the Assignee. 405 consequence, that the defendant (the heir, devisee, and executor of the purchaser,) was not liable in covenant for rent in arrear, either as executor, or assignee of the land, which was not bound in the hands of W.'s appointee by W.'s covenant (b). Mr. Sugden observes (c), that this decision leads to the observation, that wherever a purchaser is to enter into a covenant, which it is intended shall run with the land, the vendor ought to insist upon the pur- chaser taking a conveyance in fee, and should not permit the estate to be limited to the usual uses to bar dower. By far the greatest number of cases, regarding the liabilities of assignees, has arisen on demises of leaseholds : the following observations will, there- fore, be particularly applicable to assignees of inte- rests of that description. In some instances we find, that the assignee is bound even where assigns are not mentioned. In others, his liability accrues solely in consequence of assigns being included in the cove- nant. And in the third class, the covenants are held not to extend to assigns, although particularly named. First : Where a covenant extends to a thing in esse, } • Where the parcel of the demise, the thing to be done by force bound with- of the covenant is quodammodo annexed, and appur- out beln g tenant to the thing demised, and will go with the land, (b) Roach v.Wadham, 6 East, 631. 289; S. C. 2 Smith, 376. See (c) Sugd. Vend.&Purch. 543. also Cox v. Chamberlain, 4 Ves. 6th edit. H H 4GC Of the Liabilities at Common Law. [Part IV. and will bind the assignee, although he be not bound by express words (d). As if the lessee covenants to repair the houses demised to him during the term ; that is parcel of the contract, and extends to the support of the thing demised, and therefore is quo- dammodo annexed and appurtenant to houses, and will bind the assignee, although he be not bound ex- pressly by the covenant (e): it runs with the land, be- cause it affects the estate of the term, and the rever- sion in the hands of any person that has it : if the covenant to repair be on the part of the lessor, the rent is the greater ; if the lessee be to repair, he pays the less rent ; and as an assignee has the benefit, it is but reasonable that an assignee should be subject to the charge (/), according to the maxim, qui sent it commodum sent ire debet et onus (g). So, a covenant to lay out a given sum of money in rebuilding or repair- ing the premises in case of damage by fire, is clearly a covenant running with the land, and is such a co- venant as will be binding on the assignee of the les- see (h). So is a covenant to insure premises situate within the weekly bills of mortality, mentioned in the 14 Geo. III. c. 78 ; the 83rd section of that sta- tute entitling the owner of the premises to have the (d) Spencer's case, 5Co. 16, a. Cro. Car. 221. Tilney v. Norris, (e) Spencer's case, sup. The 1 Lord Raym. 553 ; S.C. 1 Salk. Dean and Chapter of Windsor's 309; Carth. 519. case, 5 Co. 24, a.; S. C.nom. (/) Buckley v. Pirk, 1 Salk. Hyde v. The Dean, &c. of Wind- 317. sor, Cro. Eliz. 552 ; Mo. 399. (g) 5 Co. 24, b. Conan v. Keraise, W. Jo. 245 ; (h) Vernon v. Smith, 5 Barn. S.C. nom. Congham v. King, & Aid. 1. Chap. I.] Of the Liability of the Assignee. 4G7 money insured expended, in case of damage by fire, in re-instating the property ; and therefore, it affects the thing demised, as much as a covenant to repair or rebuild in case of fire (/). Covenants also relating to the cultivation of the premises demised, will be sufficient to charge the assignee unnamed ; as, to lime and dung the land during the term (J) ; or to spend all the muck there- on (A) ; or to leave fifteen acres every year for pas- ture absque cultura, being for the benefit of the estate, according to nature of the soil, &c. (/). And on the authority of the first and sixth resolu- tions in Spencer's case, it is determined, that a covenant by a lessee constantly during the lease, with his and their family, to inhabit and dwell in and upon the demised farm and lands, is of the same character, and will bind an assignee, although the executors and administrators of the lessee were only named (in). And if a man grants to a lessee for years, that he shall have so many estovers as will serve to repair his house, or as he shall burn in his house, or the like, during the term, it is as appurte- nant to the land, and shall, go with it as a thing ap- purtenant, into whose hands soever it shall come (a). (i) Ibid. And see " Covenant 125. to insure," ante, p. 183. et seq. (tn) Tatem v. Chaplin, 2 Hen. 0) Sail v. Kitchingham, 10 Blac. 133. Mod. 158. (n) Spencer's case, 5 Co. 17, (k) Bally v. Wells, 3 Wils. 32 ; a. b. 5th res. The Dean and S. C. Wilmot, 341. Chapter of Windsor's case, 5 Co. (I) Cocksonv.Cock,Cro. Jac. 24, b. F.N B. 181. N. II II 2 4t>8 Of the Liabilities at Common Law. [Part IV. Within this class also are comprised covenants for payment of rent (o), and to discharge the lessor of all charges ordinary and extraordinary (p). So, a cove- nant to do suit at the lessor's mill, by grinding all such corn there as should grow upon the demised premises during the term ; or to carry coals to the lessor's mansion, and perform other similar services ; will, so long as the ownership of the mill, or the mansion, and the reversion of the demised premises, continue in the same person, run with the land against the lessee or his assigns, and for the benefit of the reversioner or his grantee (q). Where a restraint is imposed on the exercise of particular trades by covenant, the land itself is affected during the term with regard to the mode of occupation ; the assignee unnamed will therefore be bound (r). So, where A. leased a house, excepting two rooms, and free passage to them, and the lessee assigned, and the assignee disturbed the lessor in the passage thereto, the court decided, that an action of cove- nant lay against the assignee ; and this diversity was taken : if the disturbance had been in the chamber, no action would have lain, because it was excepted, and so not demised ; but it was otherwise where the (o) Stevenson v. Lam bard, 2 (q) Vyvyan v. Arthur, 1 Barn. East, 575. Porter v. Swetnam, & Cres. 410. 414; S.C. 2 Dow. Sty. 406. Parker v. Webb, 3 & Ry. 670. Salk. 5. (r) Mayor of Congleton v. Pat- (p) Dean and Chapter of Wind- tison, 10 East, 130. 136. sor's case, 5 Co. 24, b. Chap. 1.] Of the Liability of the Assignee. 469 lessee agreed to let the lessor have a thing out of the demised premises, as a way, common, or other pro- fit apprendre. for there the covenant went with the tenement and bound the assignee ($). Incorporeal hereditaments may likewise be the subject of covenants possessing this quality. Hence, where a lessee of the great and small tithes, cove- nanted for himself, his executors, administrators, and assigns, with his lessor, the rector of the parish of M., not to let any of the farmers occupying seve- ral of the estates at M. have any part of the tithes aforesaid, without the consent in writing of the les- sor ; the court were clearly of opinion, that an ac- tion of covenant might well be supported against the assignee of the lessee, the intention of the parties obviously being, to keep the tithes continually in per- nancy ; for the covenant was in effect, that the les- see and his assigns should take them in kind, that they might continue in the same state as when the lease thereof was made ; and that by temporary compositions and unity of possession of the land and tithe thereof, moduses might not be let in, nor the manner of tithing be thereby obliterated ; but that the existence of taking tithes might be preserved ; and the court assimilated the case to a covenant to spend all the muck upon the land, and said, that it fell exactly within the rules laid down by Lord Coke, in Spencer's case, as to land : it concerned the thing demised, and tended to preserve and support the (s) Cole's case, 1 Salk. 196; Mod. 24 ; Carth.232 ; S.C.nom. S. C. nom. Bush v. Coles, 12 Bush v. Calls, 1 Show. 388. *'® Of the Liabilities at Common Law. [Part IV. estate of tithes in kind : and there was a reversion in the lessor, and a privity between him and the les- see (7). Whether the judges considered it as a cove- nant which would bind the assignee without being named, is not perfectly apparent ; for, towards the conclusion of their judgment, they said : " In Pur- frey's case (V), there is something looks against us ; the opinion there is, that the covenant would not run along with the land ; but it must be observed, that it did not concern the thing demised, nor is the word assigns there ; so it does not apply to, nor clash with the case at bar." But where a lessee of tithes cove- nanted with the owner of lands, for certain collate- ral considerations, not to take tithes in kind from the tenants of the lands for twelve years, but to accept a reasonable composition, not exceeding 3^. 6d. per acre, it was held, that this was a covenant clearly collateral to the interest of the lessee of the lands, and could not be taken advantage of by him on a suit being instituted for the payment of tithes in kind (v). Covenants for title (w) ; for quiet enjoyment (&) ; for further assurance (jy) ; for renewal (z) ; to supply (0 Ball) v. Wells, 3 Wils. 25 ; (x) Noke v. Awder, Cro. Eliz. S.C. Wilmot, 341. 10 East, 373.436 ; S.C. Mo. 419. Carap- 136. bell v. Lewis, 3 Barn. & Aid. 392. (u) Purfrey's case, Mo. 243. (y) Middlemorev.Goodale,sup. O) Brewerv.Hill,2Anstr.413. King v. Jones, 5 Taunt. 418; (u>) Middlemore v. Goodale, S.C. 1 Marsh. 107; S.C. in Cro. Car. 503 ; S.C. W. Jo. 406. error, 4 Mau. & Selw. 188. 1 Rol. Ab. 521, (K.) pi. 6. King- (z) Isteed v. Stoneley, 1 And. don v. Nottle, 1 Maule & Selw. 82. Anon. semb. Spencer's case, 355 ; 4 Ibid. 53. Mo. 159. pi. 300. Skerne's case, Chap. I.] Of the Liability of t lie Assignee. 471 the demised premises with water (a) ; are also cove- nants running with the land, and will be binding on the assignee of the lessor, and are such as the assig- nee of the lessee may enforce. And it is observa- ble, that an assignee of a personal contract for the liberty of bringing water to the city of London, is chargeable in equity with the covenants in the origi- nal lease or contract, as an equitable assignee upon an equitable privity of estate, like the assignee of a bond (£). The second resolution in Spencer's case (c) takes 2. Where the , . . , . /• i • i • assignee is a distinction, the good sense ol which is not very bound by be- easily discoverable. It was resolved, that if the co- m S named, venant concerned a thing which was not in esse at the time of the demise made, but to be done on the land afterwards, (for instance, to build a new wall on some part of the premises demised,) the covenantor, his executors and administrators, would be bound, but not the assignee, if he were not named ; for the law would not annex a covenant to a thing which had no being ; but if the lessee had covenanted for himself and his assigns, then, forasmuch as it was to be done upon the land demised, it should bind the assignee ; and the reason given is, that although the covenant did extend to a thing to be newly made, Mo. 27. Tanner v. Florence, 1 (b) City of London v. Rich- Ch. Ca. 260. Furnival v. Crew, mond, Prec. Ch. 156; S. C. 3 Atk. 88. Roe dem. Bamford 2 Vern. 421. v. Hayley, 12 East, 469. Vernon (c) Spencer's case, 2d resolu- v. Smith, 5 Barn. & Aid. 11. tion. But see Anon. Mo. 159. (a) Jourdain v.Wilson, 4 Barn. pi. 300. Smith v. Arnold, 3 & Aid. 266. Salk. 4. cont. 472 Of the Liabilities at Common Law. [Part IV. yet it was to be made upon the thing demised, and the assignee was to take the benefit of it, and there- fore he should be bound by express words. This distinction, however, has been adhered to ; and in a case where the lessee covenanted that, at the expiration of his term, a fair valuation should be made of all the fruit trees which should be then standing on the demised premises, and that the same should be delivered up to the lessor, his executors, administrators, or assigns, at the value to be fixed by such appraisement ; and the lessor covenanted for himself, his executors and administrators, to pay to the lessee, his executors, &c, such sum of money as the trees should be valued at ; it was held, that the lessee's right of action for a breach of this cove- nant could not be extended to an assignee of the lessor, without his being named in the covenant, as the subject matter of it did not relate to a thing in esse at the time of the demise (d). It seems doubtful whether a covenant by a lessee of a public- house, that he and his assigns will buy all their beer of the plaintiffs, the lessors, can bind an assignee even when named (e). (d) Grey v. Cuthbertson , 2 (e) Hartley v. Peehall, Peake Chit. 482 ; S. C. 1 Selvv. N. P. N.P.C. 131. Cited 4 Taunt. 342. 498. See likewise The Mayor, See Holcombe v. Hewson, 2 &c. of Congleton v. Pattison, 10 Campb. 391. Jones v. Edney, East, 130, post, 477, 8. Anon. 3 Campb. 285. Cooper v. Twi- 12 Mod. 384. bill, Ibid. note. Chap. I.] Of the Liability of the Assignee. 473 Thirdly: Although the covenant be for the lessee 3. Where the and his assigns, yet if the thing to be done be merely Abound collateral to the land, and do not touch or concern although the thing demised in any sort, there the assignee will not be charged (/). As if the lessee covenants for himself and his assigns, to build a house upon the land of the lessor, which is no parcel of the de- mise ; or to pay any collateral sum to the lessor, or to a stranger : it will not bind the assignee ; because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is as- signed over ; and therefore in such case, the assignee of the thing demised can no more be charged with it than any other stranger (g). Or if a man leases sheep or other stock of cattle, or any other personal goods, for any time, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things letten were, or such price for them, and the lessee assigns the sheep over ; this covenant will not bind the assignee ; for it is but a personal contract, and wants such privity as is between the lessor and lessee and his assigns of the land, in respect of the reversion. But in the case of a lease of personal goods, there is not any privity, nor any reversion, but merely a thing in action in the personalty, which cannot bind any but the cove- nantor, and his executors or administrators, who re- present him. L. C. J. Wilmot, in commenting on these po- sitions, has further explained the grounds of the as- (/) Spencer's case, 5 Co. 16, b. (*y) Ibid. Mayo v. Buckhurst, 3d res. Cro. Jac 438. 474 Of the Liabilities at Common Law. [Part IV. signee's exemption from liability (A). " The reasons (said he) why the assignees, though named, are not bound in the two last cases, are not the same. In the first case, p. e. of a covenant to build a house on other land, or to pay a collateral sum to the lessor,] it is because the thing covenanted to be done has not the least reference to the thing demised ; it is a substantive, independent agreement, not quodam modo, but nullo modo, annexed or appurtenant to the thing leased. In the case of the mere personalty, p. e. if the lease be of sheep or other personal goods,] the covenant doth concern and touch the thing demised ; for it is to restore it, or the value, at the end of the term ; but it doth not bind the assignee, because there is no privity, as there is in the case of a realty between the lessor and lessee and his assigns, in re- spect of the reversion : it is merely collateral in one case ; in the other it is not collateral, but they are total strangers to one another, without any line or thread to unite and tie them together, and to consti- tute that privity which must subsist between debtor and creditor to support an action." The same law, if a man demises a house and land for years, with a stock or sum of money, rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term : here, the as- signee will not be charged with this covenant ; for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of (h) Wilmot, 344, 5. 5 Burn. & Aid. 7, S. Chap. I.] Of the Liability of the Assignee. 475 the stock or sum, but out of the land only, and therefore, as to the stock or sum, the covenant is personal, and will bind the covenantor, his executors and administrators, and not his assignee : and it is not certain that the stock or sum will come to the assignee's hands ; for it may be wasted or otherwise consumed or destroyed by the lessee ; and therefore the law cannot determine, at the time of the lease made, that such covenant shall bind the assignee (z). A covenant for payment of a rent-charge in fee, being a personal covenant, and collateral to the land of the grantor, will not affect an assignee or lessee of the land, at law (A), though, it is said, the grantee of the rent-charge has a remedy in equity (/). And where the owner of lands, subject to the payment of a fee-farm rent, sold part of the lands to one, under whom the plaintiff claimed, and covenanted that such part should be discharged from the rent ; it was held, that this was clearly no more than an or- dinary and personal covenant, which would not run with the land, but would charge the heir only in re- spect of assets (in). So, where J. B., being seised in fee, conveyed to the defendant and T. J., their heirs and assigns, to the use that J. B., his heirs and as- signs, might have and take to his use a rent certain, (i) Spencer's case, 5 Co. 16,b. Carth.438 ; 1 Salk. 198 ; 2 Ibid. 17, a. 3d resol. Jamesv.Blunck, 615 ; 3 Ibid. 340 ; 12 Mod. 160. Hardr. 88. 171. But see ante, p. 65. (k) Brewster v. Kitchin, Kit- (Z) Ibid. 5 Mod. 374. chel, or Kidgell, 1 Lord Raym. (w) Cook v. The Earl of Arun- 317. 322 ; S. C. Comb. 424 ; del, Hardr. 87. Holt, 175. 669; 5 Mod, 368; 47G Of the Liabilities at Common Law . [Part IV. to be issuing out of the premises, and, subject to the said rent, to the use of the defendant, his heirs and assigns; and the defendant covenanted with J. B., his heirs and assigns, to pay to him, his heirs and assigns, the said rent ; and J. B. demised the rent to the plaintiffs for 1000 years: the court said, that it was incorrect to state this as a rent-charge granted by the owner of the fee, it being a conveyance in fee by J. B. to certain uses, one of which was, that he should receive the rent ; so that the rent arose out of the estate of the feoffors. It was, therefore, not a grant by the owner of the fee ; and the covenant was a covenant in gross (n). It is also to be observed, that this was not an assignment of the rent, but a de- rivative interest therein newly created (o). So, on the grant of a rent-charge to A., to the use of B., with a covenant by the grantor with A. for payment; al- though the rent-charge is executed in B. by the statute of uses Qo), which transfers also all rights and remedies incident thereunto, together with the pos- session, so that the cestui que use may distrain ; yet, as the covenant is merely collateral, and cannot be transferred, B. cannot bring an action for non-pay- ment; but the grantees to uses may; for, as to them, that remedy is not destroyed (a). A covenant to grind all the corn, grain, or malt, the lessees shall have occasion to use or spend, at (n) Milnes v. Branch, 5 Mau. (p) 27 Hen. VIII. c. 10. & Selw.411. See ante, 68. n.(ry). (q) Bascawin v. Cook, 1 Mod. (o) See Holford v. Hatch, 1 223; S. C. 2 Mod. 138. Dougl. 183. Chap. I.] Of the Liability of the Assignee. 477 the plaintiff's mill, is likewise merely a collateral covenant, and unconnected with any thing relative to the premises leased ; and cannot, in consequence, be binding on the assignee ; for within such a cove- nant, corn for the horses, &c. of the defendants must be ground ; and to whatever distance the defendants might remove to live, they must bring it to the plain- tiff 's mill. Had the covenant been, to grind all the corn they should spend ground, it might relate to the premises, and, running with the land, bind the as- signees (r). It may be mentioned, that if a lease be made by a bishop, containing a covenant not usually inserted in such leases, his successor, notwithstanding his being specially named, will not be bound to observe it(V). In a more recent case, the nature of these cove- nants was fully elucidated by the court. The plain- tiffs had demised to one J. C. a piece of ground in Congleton, called the Byflatt, for 300 years, and a certain slip of land, through which a watercourse was intended to be made, with liberty for making and repairing the same, and with liberty for J. C, his executors, administrators, or assigns, to erect in the Byflatt a silk mill, &c. And J. C. covenanted, for himself, his executors, administrators, and as- (r) Lord Uxbridge v. Stave- Hamley v.Hendon, 12 Mod. 327. land, 1 Ves. 56. See also Vy- (5) Davenant v. The Bishop of vyan v. Arthur, 1 Bam. & Cres. Salisbury, 1 Vent. 223 ; S. C. 410 ; S. C. 2 Dow. & Ry. 670. 2 Lev. 68 ; 3 Keb. 69. 47s Of the Liabilities at Common Law. [Part IV. signs, with the plaintiffs, that he, his executors, &c. would, at all times during the term, before any per- sons should be received as servants, workmen, or apprentices, in such silk mill, give notice of their names to the town clerk of the borough for the time being, and if he should immediately give satisfactory information to J. C, his executors, &c, or to the then owner or occupier of the silk mill, that any of the persons in such notice were legally settled in any other parish or township, and not in Congleton, then they should not be received to work in such silk mill, before a certificate of the settlement of such person, under the stat. 8 & 9 Wm. 3. c. 30, should be given to Congleton. On an action brought against the assignee of the term, the court were una- nimously of opinion, that, as the covenant did not affect the nature, quality, or value of the thing de- mised, independently of collateral circumstances, or the mode of enjoying it, the assignee, though named, was not bound. They said, it might, indeed, colla- terally affect the lessors as to other lands they might have in possession in the same parish, by increasing the poors' rates upon them ; but it could not affect them even collaterally in respect of the demised premises during the term (£). The law would be the same, it appears, if the covenant had been, only to employ freemen of the corporation in the mill (u). So, if a lessee should covenant to make a commu- nication by water from the demised premises through other persons' lands to another place, to facilitate the (0 Mayor of Congleton v. Pat- wiseColIinsv. Plumb, 1G Ves.454. tison, 10 East, K30. See like- (u) Ibid. 134. Chap. I.] Of the Liability of the Assignee. 47!) access to a market ; although the value of the rever- sion would be materially affected by the performance or non-performance of such a covenant ; yet it could not bind the assignee, because all the cases show, that the assignee is not bound unless the thing to be done is upon the land demised (v). And on the same authority, it seems to have been admitted, that a covenant by a lessor to give his lessee, his executors, administrators, and assigns, a right of pre-emption of an adjoining piece of ground, would not run with the land, in the bands of the assignee of the lessee, being to do a thing collateral to the demised premises (w). Several owners and occupiers of land in a parish, covenanted to concur in defending any suits that might be commenced against any of them, by the then present or any future rector, for the tithes of articles covered by certain specified moduses, or any other moduses ; and bound themselves not to com- promise or settle such suits, &c. And, among other things, it was agreed, that the several parties who were owners and occupiers, would severally bear, satisfy, defray, and discharge, all and every the costs, charges, and expenses, of the proceedings mentioned above, rateably according to the annual value of their respective lands within the parish, as they were rated to the poors' rate, and that the par- ties who were occupiers only, as lessees or tenants, should bear, contribute, and pay, to their respective lessors or landlords, executing the indenture, a fair (v) Ibid. 138, 9. (w) Collison v. Lettsom, 6 Taunt. 224 ; S. C. 2 Marsh. 1. 480 Of the Liabilities at Common Law. [Part IV. and equitable proportion of such costs, charges, and expenses, according to their respective interests in the lands by them respectively occupied, such pro- portion to be settled by three persons therein men- tioned. The Master of the Rolls, in one part of his judgment, remarked, that this was not a covenant that would run with the land ; a purchaser, there- fore, on a sale of these estates would not be obliged to fulfil it (x). As the above distinctions, especially the distinction between the first and second class just noticed, offer no very satisfactory criterion of the requisites to make a covenant run with the land; the safest way in practice, in all cases where the covenant is intended to run with the land, is, to include the assignee of the covenantor in the covenant : his being named, can never be prejudicial to the covenantee's interest; but may, in some instances of doubt respecting the class to which the particular covenant belongs, prove essentially serviceable to him ; by conferring on him a right of action against such assignee, to which he would not be entitled on the omission to provide for the acts of assignees. 4. What per- While we are on the subject of the liability of as- sorts are , . . comprised signees, it may be proper to notice the extensive within the signification of that term, and to point out what term " as- ° 1 signee." persons may be construed to be invested with that character. By the seventh resolution in Spencer's case (jf) it was agreed, that the assignee of the as- (x) Stone v. Yea, Jacob, 426. (y) Spencer's case, 7th reso- 434. lution. Chap. 1.] Of the Liability of the Assignee. 4ft) signee should have an action of covenant (z). So, of the executors or administrators of the assignee of the assignee (a). So, of the assignees of the exe- cutors or administrators of every assignee (b); for all are comprised within the word assignees; for the same right which was in the testator or intestate shall go to his executors or administrators. And if a man makes a warranty to one, his heirs and assigns, the assignee of the assignee shall vouch ; and so shall the heirs of the assignee. The same law of the as- signee of the heirs of the feoffee, and of every as- signee. So, every one of them shall have a writ of warrantia charted ; for the same right which was in the ancestor, shall descend to the heir in such case, without express words of the heirs of the assignees. Parties coming in by act of law, as, tenant by statute- merchant, or statute-staple, or elegit of a term, and he to whom a lease is sold by force of an execu- tion, are likewise within the meaning of the word assignees (c). But to charge an assignee, he must be possessed under the original demise. It is not sufficient, therefore, to allege that the tenements came to the defendant by assignment ; but it must be shown that he was assignee of the term ; for otherwise, he might claim under an assignment of another estate than the term of the lessee (d). And (z) See also Congham v. King, (b) See also Whitfield v. How, Cro. Car. 221 ; S. C. nom. Co- 2 Show. 57. nan v. Kemise, W. Jo. 245. (c) Spencer's case, 5 Co. 17, a. (a) See too Keelingv. Morrice, 5th res. 12 Mod. 371. Hyde v. The Dean (d) Huckle v. Wye, Garth, and Canons of Windsor, Cro. 255, 6. 1 Brod. & B. 250. Eliz. 553. I I 482 Of the Liabilities at Common Law. [Part IV. where an estate was conveyed to A. and his heirs, to the use of such persons as B. should appoint, and in default of appointment, to B. in fee ; and, by the same conveyance, a certain fee farm rent was reserved to the chief lord, which rent B. covenanted for himself, his heirs and assigns, to pay ; and B. appointed to C. : It was held, that as C. came in under B.'s ap- pointment, and not under his seisin, he was in para- mount B., and not an assignee of B., so as to be liable on the covenant (e). In order, however, to prove that the defendant is clothed with such a character as will render him liable on the covenant, it is sufficient to show that the estate is vested in him ; and, although in the case of a fee, the party be in possession as heir at law, he is liable on the covenant, on the general allegation of his being assignee (/). Hence, the usual form is : that all the said estate, right, title, and interest, of the said A. B. (the lessee), of, in, and to the said de- mised premises, with the appurtenances, afterwards, to wit, on, &c, at, &c, aforesaid, by assignment thereof then and there duly made, came to and vested in the said defendant (g). In a suit in equity also against the assignee of a lease, for a breach of cove- nant, the defendant should be shown, as in a decla- ration at law, to be an assign (/z). But the expres- (e) Roach v. Wadham, 6 East, (g) 1 Chit. Plead. 355. 3d ed. 289 ; S. C. 2 Smith, 376. 1 Saund. 112, a. note(l). (f) Derisley v. Custance, 4 (A)LordUxbndgev.Staveland, Term Rep. 75. Whitfield v. How, 1 Ves. 56. 2 Show. 59. C hap . I . ] Of the Liability of the Assignee. A 8 .'J sion, that the property vested in the defendant as assignee of " all the estate, right, title, and interest" of the covenantor, must be understood to respect thai particular description and quality of estate, termed legal estate, by virtue whereof parties are at all liable, at law, to actions of covenant, as assignees. The devi- sees of an equity of redemption, therefore, the legal fee being in a mortgagee, cannot be charged, as such assignees, with a breach of covenant entered into by the devisor with a lessee or grantee (/'). Nor is the mere depositary of a lease, delivered as a security for the repayment of money lent, such an assignee as may be sued for non- performance of covenants (k) : his interest is simply equitable : but on this interest equity will act, and will decree the depositary to take an assignment of the lease, and execute a coun- terpart of the assignment, so as to put the lessor in a situation to recover damages at law against him for a breach of covenants (/). Nor is an assignee charge- able with covenant, where the lessors or grantors had not the legal or equitable estate in the real here- ditament which they professed to grant. Hence, where two persons, being only part owners of the profits of a navigation, granted a right of cut- ting channels through the banks of the navigation, &c. for certain purposes, as if they had the sole ownership of the navigation ; it was decided, that an (i) The Mayor, &c. of Carlisle (k) Doe dem. Maslin v. Roe, v. Blamire, 8 East, 487. Taylor 5 Esp. 105. v. Shum, 1 Bos. & Pul. 23. (Z) Lucas v. Comerford, 3 Bro. Goddard v. Keate, 1 Vein. 87 ; C.C. 166; S. C. 1 Ves. jun. 235; S. C. 1 Eq. Ca. Ab. 47. pi. 7. Cited 1 Meriv. 264. Wilkins v. Fry, 1 Meriv. 266. i i 2 484 Of tlit Liabilities at Comfnon Law. [Part IV. action was not maintainable against the assignee for rent in respect of the grant, because no interest ori- ginally passed to the grantee (m). In like manner, the operation of the word assigns can only be extended to such persons as assume that character after the covenant made. And where a lessor covenanted, for himself, his executors, admi- nistrators, and assigns, with his lessee, to permit him to make a drain to convey the waste water from the houses demised to the main shore, and the covenantor had previously assigned the lands intervening be- tween the demised premises and the main shore to a stranger, who refused his permission for that pur- pose ; the court held, that an action could not be sup- ported against the lessor, the disturbance being al- leged to be by an assignee who came in before the demise (n). On the other hand, if a tenant or his assignee continue in possession after the expiration of his lease, and pay rent, he will be presumed to hold over subject to all the covenants in the lease applicable to his new situation (o) ; the payment of rent being evidence of holding, not only on the same terms, but, further, subject to the same covenants and agreements (/?). And though an action of cove- nant could not be maintained, an action of assumpsit, or on the case, would lie, declaring specially on the implied agreement (q). (to) The Earl of Portmore v. 275. Bromefield v. Williamson, Bunn, 1 Barn. &Cres. 694; S.C. Sty. 407. 3 Dow. & Ry. 14.5. (p) Kimpton v. Eve, 2 Ves. & (n)Target v.Lloyd, 2 Vent.277. B. 353. (o) Digby v.Atkinson, 4 Camp. (q) Ibid. Chap. I.] Of the Liability of the Assignee. 485 For some time, the courts entertained great doubts whether an action of covenant could be maintained by a lessor against an under-lessee, as being sub- stantially an assignee ; but after much consideration of the subject, and a full investigation of the autho- rities, it is clearly settled, that the action cannot be supported, unless against an assignee of the whole term (/•). On this principle, where there was a grant by lessees for lives of all their estate, right, title, interest, &c. in the premises, to one and his execu- tors, habendum to him and his executors for ninety- nine years, if the lives should so long live, in as large, ample, and beneficial a way, as the grantors, their heirs, &c. could have enjoyed the same ; Lord Ken- yon held, that as the term of ninety-nine years was not co-extensive with an estate of freehold, and there were no words by which the freehold of which the original lessees were seised, was conveyed to the defendant's testator, it could not be said that the whole interest in the lease passed to him : the re- versioners, in consequence, (the lives being expired within the term,) could not maintain covenant against the under-lessee for not delivering up the premises in good repair (/). Yet it would appear, that equity would compel an under-lessee to repair, if the first (r) Holford v. Hatch, 1 Dougl. Eq. Ca. Ab. 47. pi. 7. Church 183. Kinnersleyv.Orpe,l Dougl. v. Brown, 15 Ves. 265. Jalabert 56. Crusoe dem. Blencowe v. v. Duke of Chandos, 1 Eden, 372. Bugby, W. Blac. 766; S. C. 3 Brewer v. Hill, 2 Anstr. 413. Wils. 234. Milnes v. Branch, 5 Anon. Mo. 93. pi. 230. Maule & Selw. 411. Goddard (s) The Earl of Derby v. Taylor, v. Kcate, 1 Vein. 87; S. C. 1 1 East, 502. 486 Of the Liabilities at Common Law. [Part IV. lessee died insolvent (f). It may also be observed, that where one covenants for himself and his under- tenants, whether the under-tenant claim immediately under the covenantor, or mediately through several transfers of the under-lease, he still comes within the scope of the covenant (w). 5. Whether An actual entry upon the demised premises by an cessarvto 6 ass ig nee * s not requisite, in order to charge him with constitute a the performance of covenants running with the land : assignee. ^y accepting an interest under the conveyance, he incurs all the responsibility connected with the es- tate, as extensively as if he had taken possession in fact (v). A contrary decision (w) is to be met with in the reports ; but whatever opinions may formerly have been supported, the law is definitively settled as above. Thus, where the assignees of a bankrupt lessee put up the premises for sale by auction, and a person became the purchaser, and paid his deposit, and gave orders for the assignment to be prepared by the solicitor of the assignees, and the assignment was accordingly prepared, and executed by the as- signees and the bankrupt, but, instead of being deli- vered to the purchaser, remained in the solicitor's hands, who claimed a lien upon it for the expense (i) Goddard v. Keate, sup. (u) Burman v. Aston, 1 Lev. 144 ; S. C. nom. Boarman, or Bourman, v. Arton, or Acton, 1 Keb. 775. 806. (v) Williams v. Bosanquet, 1 Brod. & B. 238 ; S. C. 3 J. B. Mo. 500. See Cook v. Harris, 1 Lord Raym. 367. Bellasis v. Burbrick, 1 Salk. 209 ; S. C. 1 Ld. Raym. 170. (w) Eaton v. Jaques, 2 Dougl. 455. See also Jackson v. Ver- non, 1 Hen. Blac. 114. Chin- nery v. Blackburne, Ibid. 117. n. (a). Anon. 2 Freem. 253. Chap. I.] Of the Liability of the Assignee. 487 of preparing it ; Lord Ellenborough held, that the assignment was complete before the rent became due, although it had not been delivered to, or ac- cepted by the purchaser ; and that the assignees of the bankrupt were not liable (a?). So, where certain leasehold premises were assigned to the defendant, as trustee for one Fidell, to whom an annuity had been granted by the lessee, with the usual powers of distress and entry, in trust to per- mit the grantor to take the rents until default in payment, and thereafter to raise and pay the annuity to Fidell, and as to the surplus rents, in trust for the grantor ; and a tenant who occupied one of the houses, having applied to the defendant to inquire to whom the rent should be paid, the defendant answered, " You must pay the rent to me ; I am become land- lord for my client, who has the annuity, and you must pay the ground rents to (y) me" : It was held, that this amounted to a sufficient assumption of right, and approached as nearly to an entry on the land assigned as was possible under the circumstances, and therefore, the trustee was liable (z). And the same rule applies to an assignee of an assignee ; and whether the second assignee enter on the premises or not is unimportant ; by the assignment the title and possessory right pass, and the assignee becomes sufficiently possessed to discharge the prior assignee from the covenants in the lease (a). (x) Odell v. Wake, 3 Campb. (z)Grettonv. Diggles,4Taunt. 394. 766. (y) In the report the word for (a) Walker v. Reeves, 2 Dougl. is inserted, it seems, by mistake, 461. n. (1.) instead of to. 4tiS Of the Liabilities at Common Law. [Part IV. An endeavour to distinguish cases of an absolute assignment from a conditional or qualified assignment by way of mortgage, has given rise to some argu- ment ; and in Eaton v. Jaques, this distinction was sanctioned by the court, and formed the basis of Lord Mansfield's judgment. " To do justice between men, (said his Lordship,) it is necessary to under- stand things as they really are, and construe instru- ments according to the intent of the parties. What is the effect of this instrument between the parties ? The lessor is a stranger to it. He shall not be in- jured, but he is not entitled to any benefit under it. Can we shut our eyes and say it was an absolute conveyance ? It was a mere security, and it was not, nor ever is meant, that possession should be taken until default in payment, and the money has been demanded." Mr. Justice Buller, indeed, went a step further, and denied the liability of the as- signee, without possession, even in the case of an absolute assignment, and said, that the distinction between a naked right and the beneficial enjoyment was founded in reason (b). This doctrine has, how- ever, been subsequently impeached, and Eaton v. Jaques formally reversed ; and it is now fully estab- lished, that so long as the assignee has the legal estate, so long he continues liable to perform the covenants in the lease, and it is perfectly immaterial whether the assignment be unconditional, or by way of mortgage (c). (b) Eaton v. Jaques, 2 Dougl. 275 ; S. C. 1 Eq. Ca. Ab. 47. 455. pi. 6. Pilkington v. Shaller, 2 (c) Sparkes v. Smith, 2 Vein. Vern. 374. Walker v. Reeves, 2 Chap. 1.] Of the Liability of the Assignee. 489 These cases, therefore, point out the propriety, where a term of years is the security for the re-payment of money advanced on mortgage, of taking, instead of an assignment, an underlease merely ; the reservation of a day being sufficient to preserve a reversion in the lessee* and to prevent any privity of estate or of contract between the lessor and sub-lessee. At one time a practice existed of assigning the lease with a reservation of rent, or a right of entry, to the as- signor, but these contrivances are now unservice- able and exploded ; since it has been adjudged, that notwithstanding such reservation, if the whole term passes, the instrument will operate as an assignment, and not as an underlease, and will, on that account, bind the mortgagee to a performance of the cove- nants (cl). A lessee, or his executors and administrators, and 6. Duration an assignee, with respect to the continuance and ° ,. L assl £" ° l nee s ha- duration of their liability to the covenants in a lease, bility; and stand in different situations. To explain the prin- duration of G ciples from which this difference originates, it will the liability of tllG lcSSGC» be needful to shew the distinction between the seve- ral kinds of privities. First, There is a privity of estate ; and Secondly, privity of contract. These privities are frequently distinct persons, and frequently unite in the same a privity in Dougl. 461. n. [I]. Westerdell v. Bosanquet, supra. Dale, 7 Term Rep. 312. Stone (d) Palmer v. Edwards, 1 v. Evans, Woodfall's Landl. and Dougl. 187. n. Chancellor v. Ten. 84. 6th edit. Williams v. Poole, 2 Dougl. 764. 490 Of the Liabilities at Common Law. [Part IV. individual (e). We will take the case of a lease : In respect of the lands demised, between the lessor and the lessee, the one being lord and reversioner, the other the subordinate tenant, there exists the relation of privity of estate. This privity, depending entirely on the estate, will have a duration co-exten- sive with the continuance of the term. By an as- signment, the lessee may divest himself of the privity of estate, and transfer it to his assignee ; and it will re- main annexed to the estate in whose possession soever the lands may happen to fall ; and notwithstanding the frequency with which the property may change owners, the assignee will still hold in privity of estate of the original landlord. In the event of an assignment to an insolvent person, it is clear, that the landlord's security for future payments of rent would be ex- tremely precarious. It has, therefore, been usual at all times to insert special covenants on the lessee's part, for payment of rent, for repairing the demised premises, &c. These covenants create the second kind of privity, namely, of contract. So that a les- see, during his occupation, holds both by privity of estate and privity of contract. This latter privity is not absolutely transmitted to a purchaser, on an as- signment by the lessee, as it will, until the determi- nation of the term, oblige such lessee, and his personal representatives, and his heirs, where named and having assets by descent (/), to an observance of ^Walker's case, 3 Co. 23, a.; Sid. 401; 1 Lev. 259; 2 Keb. S. C. Mo. 351. Overton v. Sy- 439. 448. 468. 492 ; S. C. norn. dal, Cro. Eliz. 555. Thursby v. Nurstie v. Hall, 1 Vent. 10. Plant, 1 Saund. 237; S. C. 1 (/) Ante, p. 448, 9. Chap. I.] Of the Liability of the Assignee. 491 the covenants (g) ; except in the case of covenants in law, upon which, after an assignment of the term, and acceptance of the rent from the assignee, cove- nant does not lie against the assignor (h). Then, before we enter on the subject of the dura- tion of the lessor's claim upon the assignee, a few words may be offered respecting the situation of the lessee. With the liability arising from the privity of con- tract, the lessee is so permanently fixed during the term, that no act of his own (i) can absolve him from the lessor's demands in respect of it. An assign- ment, and tender of rent by the assignee (k), or even an assignment with the lessor's concurrence, and his subsequent receipt of rent from the assignee, will be ineffectual for this purpose (/). So, of course, when (g) Buckland v. Hall, 8 Ves. & Gold. 20. Brett v. Cumber- 95. Staines v. Morris, 1 Ves. & land, Cro. Jac. 399. 521 ; S. C. B. 11. Norton v. Acklane, Cro. 1 Rol. 359 ; Lane, 78 ; 3 Bulstr. Car. 580. Matures v. Westwood, 163. Ventrice v. Goodcheape, Cro. Eliz. 599. 617. 1 Rol. Ab. 522. N. pi. 1. Devon (h) Anon. 1 Sid. 447. Ba- v. Collyer, Ibid. Whitway v. cheloure v. Gage, W. Jo. 223 ; Pinsent, Sty. 300. Edwards v. S. C. Cro. Car. 188. And see Morgan, 3 Lev. 233. Parker ante, p. 42. v. Webb, Holt, 75 ; S. C. 3 Salk. (i) The bankruptcy of the les- 5. Latch, 260. Arthur v. Van- see can scarcely be called his own derplank, 7 Mod. 198; S. C. act alone. See post, p. 493, as to Ridg. 40 ; 2 Barnard. 372 ; W. the lessee's liability after bank- Kel. 167. Jenkins v. Hermitage, ruptcy. Freem. 377 ; S. C. 3 Keb. 367. (fc)Orgillv. Kemshead,4Taunt. Hornby v. Hotdditch, Andr. 40 ; 642. Cited 1 Term Rep. 93. Wilson (I) Fisher v. Ameers, 1 Brownl. v. Wigg, 10 East, 313. Jodde- 492 Of the Liabilities at Common Law. [Part IV. the lessee sells part only, he is liable in covenant for the whole (m). Nor can an assignment by act of law operate more favourably for him ; for after a disposition of a lease by virtue of a fieri facias, or an elegit, the lessee continues liable on his covenant, notwithstanding the estate be taken from him against his consent (n). A felon, also, after attainder and forfeiture of his lands, remains bound by his express covenant (0). And unless a specific clause provide for the lessee's release, he will not be exonerated from the covenants, although he be divested of his estate by the operation of an act of parliament. An action was brought against the executrix of a lessee for years, for non-payment of rent, and the defend- ant pleaded the statute of 7 Geo. 1. c. 28., entitled " An act for raising money upon the estates of the late sub-governor, deputy-governor, directors, &c. of the South Sea Company," &c. ; and that her said testator was one of the directors, and therein named, and was thereby acquitted and discharged of and from the payment of all rent due on the said lease ; to which the plaintiff demurred : the court were unanimously of opinion, that this act could not be considered as a discharge or acquittal of the original lessee, and gave judgment for the plaintiff (p). rell v. Cowell, Ca. temp. Hardw. (0) Trussel's case, Cro. Eliz. 343. Staines v. Morris, 1 Ves. 213 ; S. C. Ow. 69 ; S. C. nom. & B. 11. Marrow v. Turpin, Banyster v. Trussel, Ibid. 516 ; Cro. Eliz. 715, overruled. 2 And. 38. 45 ; Cited 1 H. Blac. (m) Ards v. Watkin, Cro. Eliz. 440. Hastings v. Blake, Noy, 1. 637. Stevenson v. Lambard, 3 (p) Hornby v. Houlditch, Andr. East, 575. 579. 40; S. C. cited 1 Term Rep. 92,3 ; (n) Auriol v. Mills, 4 Term where the judgment is fully set Rep. 99. out. Chap. I.] Of the Liability of the Assignee. 403 A bankrupt lessee is differently circumstanced. In case of an absolute rejection of his leaseholds by the assignees, the property still resides in the bank- rupt ; but he has the option of delivering up the lease, and of relieving himself from future rent and performance of covenants, or, by remaining tenant, to continue to bear the charges to which he was liable before his bankruptcy. But lessees discharged under the insolvent act (q), are subject to the same burthens as bankrupts were exposed to in the inter- val between Sir Samuel Romilly's act and the last bankrupt act. The statute relating to insolvents deprives the lessor of his remedy against them only on condition that the assignees take the prisoner's lease as part of his estate and effects ; but the in- solvent himself is not empowered to deliver up his lease, and so determine his liability on the cove- nants entered into by him with his landlord. Thus much for the extent of the lessee's liability. The assignee's obligation to perform the covenants running with the land now claims our attention. This duty arises and endures solely on the score of pri- vity of estate (r) ; and hence, as the tenant con- tinues chargeable on his contract, the lessor may sue the assignee who has the estate, and the lessee who made the covenant, or his executors, at one and the (q) 7 Geo. IV. c. 57. s. 23. 2 Madd. 340. City of London See ante, p. 209, 210. v. Richmond, 2Vern. 421 ; S.C. (r) Le Keux v. Nash, 2 Stra. Prec. Ch. 156. Copeland v. 1221. Stevenson v. Lambard, Stephens, 1 Barn. & Aid. 607. 2 East, 575. Wilkins v. Fry, Paul v. Nurse, 8 Barn. & Cres. 1 Meriv. 265. Onslow v. Corrie, 486. 494 Of the Liabilities at Common Law. [Part IV. same time ; but execution shall issue only against one of them : for if he bring an action against the one, and after against the other, and shall take se- veral executions, he who is last taken in execution may have an audita querela (s). Consequently, the lessor may sue at his election either the lessee or his executors, or the assignee (f). Since an assignee bears the charges during his enjoyment of the benefit under the lease, and no longer, it follows, that by an assignment over he may free himself from all future burthens connected with the estate, without even the necessity of furnishing the lessor with notice of his intention to dispose of the property (u). Therefore, after a transfer by him, he cannot be subject to an action for a breach of a covenant to repair (v) ; nor for rent accruing due after that time (w); although his assignee may never have entered or taken possession (#). And an as- (s) Brett v. Cumberland, Cro. 4 Mod. 71; 12 Mod. 23; 1 Jac. 523. See Whitway v. Pin- Show. 340. And the court de- sent, Sty. 300. nied the authority of Kighly v. (0 Boulton v. Canon, Freem. Bulkly, 1 Sid. 338 ; S.C. 2 Keb. 336. Barnard v. Godscall, Cro. 260 ; S. C. nom. Knight v. Buck- Jac. 309. Bacheloure v. Gage, ley, T. Raym. 162 ; S. C. nom. W.Jo. 223; S.C. Cro. Car. 188. Keightley v. Buckly, 1 Lev. 215. Burnett v. Lynch, 5 Barn. & Cres. See also March v. Brace, 2 608 ; S. C. 8 Dow. & Ry. 368. Bulstr. 151 . (u) Tongue v. Pitcher, 3 Lev. (v) Keeling v. Morrice, 12 Mod. 295 ; S. C. nom. Tovey v. Pit- 371. cher, 2 Vent. 234 ; Carth. 177 ; (w) Pitcher v. Tovey, sup. S. C. Pitcher v. Tovey, in K. B. (x) Odell v. Wake, 3 Campb. in error, reversing the judgment 394. Taylor v. Shum, 1 Bos. & of C. P., Holt, 73 ; 1 Salk. 81 ; Pul.21. Chap. I.] Of the Liability of the Assignee. 495 signee of a term declared against as such, is not liable for rent accruing after be has assigned over, although it be stated, that the lessor was a party executing the assignment to the first assignee, and thereby agreed, that the term, which before was determinable at the option of either party, should be absolute (?/). Nor will an action lie on the covenants in the lease, against an assignee at the suit of an assignor, for the latter has no residuary interest (k). But the subdivision of an estate will not exempt the assignee of a portion from the burthen of the cove- nants running with the land : If he be assignee of part only, he is liable to an action of covenant for not repairing that part (a). So, if an assignee of the whole land be evicted of a moiety by title para- mount, he is chargeable with payment of an appor- tioned rent for the enjoyment of the other moiety, in an action of covenant, as he would be in debt, or upon an avowry in replevin ; the covenant being a real contract in respect of the land, and dividable, and following the land (b). 7. Whether Whether he is liable after assignment for breaches JabuTafter before assignment, is a question admitting of some assignment for hrf^fjoh^s controversy. In a case in Salkeld's Reports (c), it is before as- (y) Chancellor v. Poole, 2 Watkin, Cro. Eliz. 637. 651. si S nment - Dougl. 764. Merceron v. Dovvson, 5 Barn. & (z) Hicks v. Downing, alias Cres. 479. Smith v. Baker, 1 Ld. Raym.99. (6) Stevenson v. Lambard, 2 Wheeler v. Baker, 3 Salk. 10. East, 575. See also Twynam v. (a) Congham v. King, Cro. Pickard, 2 Barn. & Aid. 105. Car. 221 ; S. C. nom. Conan v. (c) Pitcher v. Tovey, 1 Salk. Kemise, W. Jo. 245. Ards v. 81. 4t)l> Of the Liabilities at Common Law. [Part IV. laid down, that covenant will lie against an assignee, for the rent due in his time, before assignment, but not after. This sentence is certainly rather equivo- cal ; for the words but not after may refer either to rent becoming due after assignment, or to the assig- nee's liability after assignment. Bacon also states in his Abridgment (d), that an assignee who assigns over is liable, and shall pay the rent which incurred due before, and during his enjoyment ; but the means by which this liability is to be enforced are not men- tioned. The position seems to require investiga- tion. The remedy by covenant, open to the lessor against the assignee, we have observed, is derived from the privity of estate which subsists between them during the occupancy of the latter; and it has also been seen, that, by getting rid of the es- tate, the assignee determines the privity as far as regards himself, and transfers it to the new assignee. If, therefore, that on which alone the liability is founded, namely, the privity, be destroyed, how can its dependent liability survive in charge against the assignee ? The defeasance of the principal must surely operate as the defeasance of the accessary. Not only to the principle on which the action of covenant against the assignee is founded, does the proposition seem to be opposed, but it will be endeavoured to be shown, that the authorities will admit of a different doctrine. A court of equity, it will be allowed, seldom in- (d) Bac. Ab. Covenant, (E). 4. unconnected with the point. See And Woodfall in his " Landlord also 1 Eq. Ca. Ab. 47. pi. 3. in and Tenant," p. 278. 6 Ed. refers marg. to Bacon's Abr., and two cases Chap. I.] Of the Liability of the Assignee. 497 *•■ terferes, or renders its assistance in cases of this kind, while means of redress are available at law. Tf this be admitted, and if it can be proved that success has frequently attended suits in equity, to compel an assignee after his assignment to pay rent incurred during his possession, the inference will be, that the Court of Chancery assisted, because the party had no remedy at law. The earliest case the author has discovered, in which the point came be- fore the court, and was determined on its own me- rits, occurred in the year 1683 (d). The assignee of a lease, rendering rent, having enjoyed the land six years, assigned over ; and the bill was to call him to an account for the rent for such time as he enjoyed the land : the defendant pleaded a judgment upon a demurrer at law, but the plea was overruled ; for though in strictness of law there was no privity of contract (e) to charge the assignee ; yet in equity he was most certainly chargeable for such time as he received the profits. The counsel alleged that there were twenty precedents in the case ; and the Lord Keeper (Sir Francis North, afterwards the Earl of Guildford,) said, that if there had not been one, he should not have doubted to make a precedent in this case. So that the bill was not only entertained, but it was also disclosed, that the plaintiff's claim against the assignee had been rejected in an action at law. Next came the case of Philpot v. Hoare (/), de- (d) Treackle v. Coke, 1 Vern. Ch. 156. 165; S.C. lEq. Ca.Ab.47.pl. 3. (e) Query, estate? See also City of London v. Rich- (f) Philpot v. Hoare, Ambl. mond, 2 Vern. 421 ; S. C. Prec. 480; in which report there is some K K 498 Of the Liabilities at Common Law. [Part IV. cided in 1741, in which, the assignee's discharge at law, and his liability in equity, were broadly stated in argument as indisputable points, and passed un- contradicted by counsel or the court. The facts may be briefly detailed. Ward, a lessee, became bankrupt, and Mrs. Hoare, one of the defendants, was chosen assignee ; she entered on the farm, sold off the crop and stock, paid the Michaelmas rent, 1739, and, on the day before the next half-yearly rent- day, assigned to Robinson, the other defendant. There was proof, it is true, that the court consi- dered Robinson in the light of an agent for Mrs. Hoare, rather than a bona fide assignee, and deemed the assignment fraudulent ; but the argument is worth noticing (o) : " It is not to be disputed in a court of equity, (said the counsel,) that such an as- signee, notwithstanding such her assignment over, is at least liable to answer for the rent during her own occupation ; though she is discharged at law." And Lord Hardwicke, after stating the case, said: " The defendant Hoare would have it supposed, that Ro- binson was to take the lease charged with the arrears of rent ; and insists that she is chargeable only dur- ing the privity of her estate. As to arrears of rent for the half year due, 1740, I am clear of opinion, that the plaintiff (the lessor) has a remedy for them in this court ;" which observation clearly distinguish- ed between courts of law and equity, and implied that, in the former, the plaintiff was not enabled to recover. And as to the breach of a covenant for confusion with regard to dates. 210. The case is also reported 2 Atk. (y) Ambl. 482. Chap. I.] Of the Liability of the Assignee. 499 removing stover oft' the farm, his Lordship expressly said (A), that an action of covenant would not lie, as there was no privity between the defendant and the lessor. He also observed, that the case of Treacklc v. Coke was a proper authority. Shortly afterwards, in 1742, Lord Hardwicke again, not only relieved the lessor in equity, but plainly denied his power to recover at law (i). His Lordship's words were : " As to the arrears of rent incurred before the fire, (the fire happening pre- viously to the assignment,) it is extremely plain, that Dodemede (the assignee) is liable to make sa- tisfaction to the plaintiff; because during that time he was in possession of the rents and profits of the estates ; however, as he has made an assignment to Lascelles, Valliant (the reversioner) has no remedy for these arrears at law, and is under a necessity of coming into this court for its assistance." The justice of these decisions has been recognised in a case which lately received much attention in the Vice Chancellor's Court if). Although the bill was filed to enforce the assignees of a bankrupt, who had assigned over to an insolvent, to pay a twelve month's rent, accruing after such assignment; yet a great part of the judgment of the court applied to the case of an arrear of rent due by an assignee (h) 2 Atk. 220. (k) Onslow v. Corrie, 2 Mad. (i) Valliant v. Dodemede, 2 330. Atk. 546, 8. K K 2 500 Of the Liabilities at Common Law. [Part IV. before assignment. " Equity, said Sir Thomas Plumer (/), gives relief to a landlord for his rent in cases of assignment ; first, where the assignment is merely colourable and fictitious, the possession re- maining with the assignor ; or, secondly, where, though there be a real assignment, yet it has been made for the purpose of depriving the landlord of his legal remedies for rent due, or for breaches of covenant incurred previous to the assignment." His Honor then stated the case of Treackle v. Coke, and continued : " In Gilbert's Lex Pretoria (m), it is said, ' Where a lessee covenanted for payment of rent and repairs, and for building on the premises, and the term was afterwards extended and sold for debt, and such assignees finding the term not worth their hav- ing, offered to resign to the lessor, and he refusing, they assigned to a beggar, the question was, whether this was a fraud that a court of equity would relieve against ; and the court took this distinction ; that if the assignees had continued long in possession, and the premises had been worse and become ruinous under their hands, or by their means, then the as- signment would be considered to be a fraud to get rid of the damage that they ought to answer ; but if (I) P. 341. and Grameer v. Loved ay ; but I (?n) P. 362. Per V. C. " In the have not been able to find these printed edition of the Lex Prce- cases anywhere in print. The toria, no cases are cited in sup- passage quoted from the Lex port of the passage quoted ; but Prcetoria is embodied in the in a MS. copy of that work in the Practice ofEquity, vol. i. p. 361,2; possession of Mr. Maddock which and some able and useful notes I have seen, two MS. cases are are made upon it by Mr. Fon- cited apparently from Gilbert's blanque." note-book, Sainbury v. Lampree, Chap. I.] Of the Liability of the Assignee. 501 they assigned immediately after their coming into possession, there was no reason to relieve, because the assignee was not chargeable at law, and the les- sor had his original security against the lessee, and his executors, as he had before, unimpeached ; and the assignee being under no obligation to hold it, there was no fraud in making such assignment.' — In a M.S. note of a case in Michaelmas Term, 12th George II., furnished me by Mr. Maddock, Mr. Fazakerly cited a case which was before Lord Chancellor Cowper, in which it was agreed, that when a lease is assigned to one, and he assigns to a third person, though the lessor hath strictly no remedy against the first assignee, the privity of es- tate being determined ; yet, that if it appears, as it did in that case, that the second assignment was made in order to exonerate and discharge the assig- nor of rent due to the lessor, this court will look upon it as a fraud, and oblige such assignor to pay the rent incurred in his time, notwithstanding the privity of estate being determined, and there being- no covenant from such second assignor:" and Val- liant v. Dodemede was then noticed with approba- tion. If this claim could have been supported, a case of very recent adjudication gave the lessor an oppor- tunity of making it on an assignee, who had as- signed over, for a breach of covenant to repair during his occupation ; but he preferred an action against the lessee, and recovered (ji). (n) Burnett v. Lynch, 5 Barn. & Ores. 589 ; S. C. 8 Dow. & Ry. 368. 502 Of the Liabilities at Common Law. [Part IV. From these authorities, therefore, it is evident, that the opinions of some of our greatest judges, for a period approaching to a century and a half, have been directly hostile to the position contained in Bacon's Abridgment, and in Salkeld's "book (assuming, that in the latter work, the term but not after has relation to the assignee's liability after assignment). The lessor's incapability of recovering at law, has been taken for granted in all the cases ; and in Treackle v. Coke in particular, we find, that a judgment at law had been actually pronounced in favor of the defendant. As occasions for suing assignees similarly situated must frequently have occurred, the mere fact of the non- existence of any case involving the point, and corro- borating the doctrine, affords a strong presumption, that the courts of law were fully conscious of their want of power to take cognizance of such an action. The reasons above advanced, then, it is submitted, may fairly be urged in justification of a refusal to rely too implicitly on the proposition advanced by Bacon and Salkeld ; a proposition repugnant to prin- ciple, and destitute of any similar determination in its support. It is, moreover, a circumstance highly worthy of remark, that although Pitcher v. Tovey is reported by several other reporters contemporary with Salkeld (o) ; yet in no one of their works is the sentence in question to be found. We may there- fore perhaps assume, without any great violation of probability, that it did not constitute part of the judgment of the court, but was an inference or de- duction expressive only of the opinion of Mr. Salkeld himself. (o) Holt, 73; 4 Mod. 71; 12 Mod. 23; 1 Show. 340. Chap. I.] Of the Liability of the Assignee. 503 If rent in arrear .before assignment cannot be re- covered at^Lj^, -by an action of covenant, after the assignee has parted with the estate ; on the same prin- ciple, an action of covenant cannot be maintained by a lessor against an assignee, after the expiration of the term by effluxion of time, for an arrear of rent accrued during the continuance of the lease. But it must be mentioned, that this opinion is opposed by a case in Ventris (p) ; where an assignee was de- clared to be liable to an action of covenant after the lease had expired, for a breach in not repairing the premises demised. As, on the one hand, an assignee is not chargeable for breaches of covenant committed after an assign- ment by him ; so, on the other, whether named or x not, he will not be liable to an action for a breach com- mitted before the assignment to him : If then a lessee covenants to rebuild and finish a house on the de- mised premises before a limited time, and afterwards assigns, having neglected to rebuild within the pre- scribed period, the assignee will not be bound, as the covenant was not broken by him (q). With respect to what shall be deemed a valid 8 - What a ' ''X- • n valid or frau- assignment, we may mention, that tn&Rris no fraud duient as- in assigning to a feme coverte ; fyjajl unless the hus- signment. band refuse his assent, such assignment will exoner- (p) Morley v. Polhill, 2 Vent, of St. Saviour's Southwark v. % 56. f Smith, 3 Burr. 1271; S. C. 1 (q) Grescot v. Green, Holt, W. Blac. 351. Brittin v. Vaiigh, 177 ; S. C. 1 Salk. 199. Anon. Lutw. 109. Nels. fol. ed. 12 Mod. 384. Churchwardens 504 Of the Liabilities at Common Law. [Part IV. ate the assignor (r) ; nor is it fraudulent to dispose of the estate to a beggar ; or to a person leaving the kingdom, provided the assignment be executed be- fore his departure (s) ; or to a person actually a pri- soner in the Fleet, although the consideration money be lent by the assignor to the assignee, to be repaid by him (/) ; or even although the assignee receive from the assignor a premium as an inducement to accept the transfer (11) ; but an execution to a non- entity, or a person not in existence, will be unavail- able (v). And as equity follows the law, assignments of this kind will not, in general, be disannulled in equity (vi) ; though that court has, in some instances, interposed, and set aside the transaction, where it appeared to be a collusive agreement between the parties, rather than an actual assignment. In one case, a lessee for eleven years at 140/. rent, becoming a bankrupt, the defendant, the assignee under the commission, entered on the farm, sold off the crop and stock, and paid the Michaelmas rent, 1739, and the day before the next rent day, viz. on the 24th of March, 1740, assigned over the lease to one Robinson. The bill (r) Barnfather v. Jordan, 2 Atk. 546. Dougl.452. Co.Lit.3, a.; 356, b. (v) Taylor v. Shum, 1 Bos. & (s) Pitcher v. Tovey, 1 Salk. Pul. 22. 8 1 , &c. supra. Taylor v. Shum, (iv) Valliant v. Dodemede, 2 1 Bos. & Pul. 23. Onslow v. Atk. 546, 8. Huddle v. Hawks- Corrie, 2 Madd. 345. by, Cited 2 Stra. 1221, and note. (t) Le Keux v. Nash, 2 Stra. City of London v. Richmond, 2 1221. Vein. 421. («) Valliant v. Dodemede, 2 Chap. I.] Of the Liability of the Assignee. 505 was brought to compel the assignee of the bankrupt to pay the arrears and growing payments, and to make satisfaction for breach of covenants. It ap- peared in proof, that the defendant, Mrs. Hoare, knew Robinson to be insolvent ; he never ploughed or sowed the land, never resided on the farm, but occupied it rather as an agent, and was to be indem- nified by her. Lord Hardwicke held, that the de- fendant Robinson's not producing the assignment was evidence of fraud, and made it very suspicious that there was no assignment ; nor did he believe Robin- son ever had the assignment in his hands ; and taking these circumstances together it looked like a collu- sive agreement. The defendant, Mrs. Hoare, was therefore decreed to answer the rent to Lady day 1740. An action in a quantum damniftcatus, as to the breaches of covenant, was first ordered ; but with a view to prevent any further litigation, his Lordship proposed, that in consideration of paying the plaintiff all the rent that was due, the lease for the residue of the term should be void, and the plaintiff should take the farm into his own hands, which the parties agreed to accordingly (>). It may be observed, that if the dealing between the assignee and his assignee be colourable and fic- titious only, it is a ground of objection at law, and the lessor may, by replying fraud to the plea of as- signment, overturn the transaction in that court as well as he may in equity (y). But evidence of fraud (x) Philpot v. Hoare, 2 Atk. (y) Knight v. Peachy, 1 Vent. 219 ; S.C. Ambl. 480. 329. 331 ; S. C. T. Raym. 303; 506 Of the Liabilities at Common Law. [Part IV. cannot be received on a general replication of non assigmavit ; the fraud must be specially pleaded {%). Lord Chief Justice Eyre, indeed, doubted whether there could ever be such a thing as a fraudulent assignment, and whether an issue on such a point could ever be well taken. And both his Lordship and Mr. Justice Buller agreed, that the only case in which the replication per fraudem could be good, was, where the assignor kept possession of the pre- mises, of which he made a profit, and made the as- signment to prevent responsibility («). 9. Liability A few words may be added, regarding the liability °j. ? ssl f nees of the assignees of bankrupts. The general assign- ment of a bankrupt's personal estate under his com- mission, does not vest a term of years in the assignees, unless they do some act to manifest their assent to the assignment, as it regards the term, and their adoption of the estate ; for they are not bound to accept a term of years that belonged to the bankrupt, subject to the rent and covenants. The object of the statute and the assignment being the payment of the bankrupt's debts, and the assignees under the commission be- ing trustees for that purpose ; the acceptance of a term, which, instead of furnishing the means of such payment, would diminish the fund arising from other sources, cannot be within the scope of their trust or duty. And in this respect, such a term differs from Anon. T. Jo. 109, semb. S. C. (z) Le Keux v. Nash, ante. Le Keux v. Nash, 2 Stra. 1221. Humbertonv. Hovvgil, Hob. 72 ; Walker v. Reeves, 2 Dougl. 461 . Cited ibid. 166. n.[I]. Onslow v.Corrie, 2 Madd. (a) Taylor v. Shum, 1 Bos. & 339. Pul. 21. Chap. 1 .] Of the Liability of the Assignee. 507 the debts of a bankrupt and his unincumbered effects and chattels (7>). But although the assignees may in the first instance repudiate the lease ; yet they cannot, after their election to take, reject the term, when they find the bargain prove disadvantageous. Accordingly, where the lessor made application to the assignees, to know if they meant to take the bankrupt's interest in the house, and received for answer, that if they did not let it by Lady-day, they would give it up, and at Lady-day they paid the rent, and offered the agent the key ; Lord Kenyon held, that the assignees were liable, and should not be allowed to renounce the lease when they disco- vered its want of value, and their inability to procure a tenant (c). Something, then, beyond the bare execution of a deed by the commissioners, being required to vest the estate in the assignees ; it becomes necessary to ascertain, what acts on the part of the assignees will amount to such an entry upon, or acceptance, or possession of the property, as will make them liable to the covenants in the lease. To enter upon that inquiry in this place will, it is hoped, be deemed a venial digression. On this subject we find, that the mere act of the assignees' advertising the lease of the bankrupt's pre- mises for sale by auction, without stating themselves to be the owners, or possessed thereof, and never (b) Bourdillon v. Dalton, 1 phens, 1 Barn. & Aid. 593. Esp.N. P. C. 234 ; S. C. Peake's (c) Broome v. Robinson, Cited N. P. C. 312. Copeland v. Ste- 7 East, 339; S.C. 3 Smith, 333. 508 Of the Liabilities at Common Law. [Part IV. having taken possession in fact of the premises, and no bidder offering, will not constitute an acceptance by them of the property ; it amounts to no more than an experiment to ascertain the value, and whether the lease may be beneficial or not to the creditors. It might as well be said to be a taking to the interest of the bankrupt in the premises if they had sent a surveyor to ascertain what the value of the property was (7/). Nor will a release by them of an under- lessee of the bankrupt, from all obligations to pay rent, &c. contained in such under-lease, amount to an acceptance of the premises by the assignees ; for the discharge of the under-tenant does not interfere with the original letting between the lessor and the bankrupt ; by the release, they merely alter the bankrupt's interest as respects the sub-lessee ; but, as relates to the assignees, the bankrupt's situation remains precisely the same as if he had never under- let the premises (e). And where the assignees of a bankrupt, having allowed his effects to remain upon the premises occupied by him, nearly a twelvemonth after the bankruptcy, for the purpose of preventing a distress, paid the arrears of rent due, at the same time intimating to the landlord, that they did not mean to take the lease, unless it could be advantage- ously disposed of; and the effects were soon after sold, and removed from the premises, and the lease was at the same time put up to sale by order of the assignees, but there were no bidders for it ; and they omitted to return the key to the landlord for near (d) Turner v. Richardson, 7 (e) Hillv.Dobie, 8 Taunt. 325; East, 335 ; S. C. 3 Smith, 330. S. C. 2 J. B. Mo. 342. Chap. I.] Of the Liability of the Assignee. 509 four months afterwards ; Lord Ellenborough was of opinion, that the defendants had done nothing to render themselves liable as assignees of the lease granted by the plaintiff to the bankrupt ; that the rent was paid by them, not as tenants, but for the express purpose of preventing a distress, with a pro- testation at the same moment, that they did not mean to adopt the term, unless, upon a trial being made, it should be found to be valuable ; and that the mere omission to send the key was not tanta- mount to entering and taking possession of the pre- mises ; though, had they refused to deliver up the key, the case would have been different (/). On the other hand, where the assignees do any act which denotes an intention to adopt the premises ; as if they allow the cows of the bankrupt to remain for two days on some land demised to him, and order them to be twice milked there (g) ; or exercise any other direct act of ownership over the property; as, by giving orders respecting the management of the bankrupt's farm : in either of these cases, their con- duct will amount to an election to take the property, and they will be deemed tenants, and liable to the covenants accordingly (A). So, if the bankrupt be possessed of a lease, and also of a reversionary in- terest, a sale by his assignees of the reversionary in- terest, will be such an assent on their parts to accept the estate, as may be taken advantage of by the (/) Wheeler v. Bramah, 3 368. Campb. 340. (h) Thomas v. Pemberton, 7 (g) Welch v. Myers, 4 Campb. Taunt. 206. 510 Of the Liabilities at Common Law. [Part IV. bankrupt, in a plea to an action by the lessor for breach of covenants contained in the lease (i). In another case, the bankrupt's leasehold premises were put up for sale, and disposed of for 400/., and a deposit was paid ; but in consequence of some omis- sion on the part of the assignees, the purchaser re- fused to complete his purchase. The premises were on a subsequent day again put up for sale, but not sold. Gibbs, C.J. said, there was certainly no evi- dence why the contract was not completed ; they put the premises up for sale and received a deposit ; and from that he must conclude that the contract of sale was in force, and that fixed the assignees with the possession (k). No instance is to be found, in which a delibe- rate act of taking possession has been curtailed of its full legal effect. If the assignees wish to curtail it, they should enter upon the premises with a pro- test that their entry was not for the purpose of pos- sessing themselves of the premises as assignees ; by neglecting this precaution they will subject them- selves to the covenants : and where the assignees do enter and take possession, they will be chargeable, although the bankrupt's effects be upon the premises, and the assignees deliver up the keys immediately after a sale of the effects (/). (0Pagev.Godden,2Stark.309. Barn. & Aid. 303. See also (k) Hastings v. Wilson, Holt's Naish v. Tatlock, 2H.Blac. 319. N.P. C. 290. Gibson v. Courthope, 1 Dow. & (I) Hanson v. Stevenson, 1 Ry. 205. Chap. I.] Of the Liability of the Assignee 511 In concluding* this subject, we may mention, that as to the legal effect of an assignment under a com- mission, with reference to a term of years, before the assignees' refusal or acceptance, there appear to be three modes in which it may be considered. First, does it pass the estate immediately to the assignees, defeasible upon their actual refusal to accept a (m) renunciation of it? Or, secondly, does it pass the estate immediately to the assignees, defeasible upon their neglect or forbearance to do some act manifest- ing their acceptance of it ? Or, thirdly, is its effect suspended until acceptance ? The first of these three modes is liable to this peculiar objection, viz. that it does not appear, by any reasoning or authority, how or to whom such actual renunciation is to be made ; whether to the commissioners ; to the lessor, whose residence may be at a distance or unknown ; or to the bankrupts : and both the first and second are liable to objection, from the inconvenience and con- fusion which must ensue for some period following the execution of the assignment ; and neither of them appears to be warranted by any principle or analogy of law : whereas, the suspension of the effect of the deed, until acceptance of the term by the assignees, will be analogous to the case of a lease for years, made by the owner of land at the common lav/. The execution of such a lease furnishes an inception of title in the intended lessee, which he may or may not adopt and perfect at his election ; for no person can be compelled to take an estate against his will. If he does elect to adopt and perfect the deed, then (»i) Thus in the report ; query, or ? 512 Of the Liabilities at Common Law. [Part IV. upon such election it becomes available from the time of execution. Then, if the operation of the deed of assignment be suspended, the estate must necessarily remain in the bankrupt during- the period of suspension ; for it cannot be in abeyance, and must exist in some person : and the respective situ- ations of the bankrupt and his assignees, will be similar to those of a lessor and his lessee for years before entry ; but the estate in the bankrupt remains subject to the right of the assignees to have the land by their acceptance of the assignment, and thereby to give effect to the deed, and vest the estate in them- selves («). Assignees of a bankrupt are no more disqualified from making an assignment to a beggar, &c. (o), to rid themselves of responsibility, than other indivi- duals. If they derive no benefit from the lease ; if they find it an onerous lease, damnosa hcereditas; they have a right, and it is a duty they owe to the bank- rupt's creditors, to assign ; nor will equity interfere to prevent or disturb such assignment, unless there be evidence of collusion (j»). (n) Copeland v. Stephens, 1 (p) Onslow v. Corrie, 2 Madd. Barn. & Aid. 605, 6. 330. (o) See ante, p. 503, 4. CHAPTER THE SECOND. OF THE RIGHTS AT COMMON LAW. SECT. I. OF THE RIGHTS OF THE COVENANTEE. As soon as the deed containing the covenant is I. Of the . . . rights of the executed, the covenantee, as we have seen, acquires covenantee . a right to the observance of the agreement, and, in case of a breach, may sue for compensation in da- mages. His rights are so simple, that little is to be advanced respecting them ; but this opportunity may be taken of mentioning, that the old cases (a), in which it has been held, that an action of covenant may be brought by him in whose favor the covenant is made, as well as by him in whose name it is made, are not now considered as law (b). SECT. II. OF THE RIGHTS OF THE HEIR. The heir represents his ancestor as to any contracts H. Of the . . rights of the relating to the freehold and inheritance, as the exe- heir. (a) See Deering v. Farrington, Ex parte Richardson, 14 Ves. 187. 3 Keb. 304. Lowther v. Kelly, And see Collins v. Plumb, 16 Ves. 8 Mod. 115. 454. Palm. 558. (b) Ex parte Peele, 6 Ves. 604. L L 514 Of the Rights at Common Law. [Part IV. cutor represents the testator in respect of the per- sonalty : and the distinction which attends real and personal covenants, with regard to the course in which they go to the representatives of the person with whom the covenants are made, is a clear one : real covenants run with the land, and either go to the assignee of the land, or descend to the heir, and must be taken advantage of by such heir or assignee alone ; but personal covenants must be sued for by the executor (c). Wherever the covenant relates to the land, and is for the advantage of the reversion, it is a real covenant, attendant upon, or annexed to the reversion, and by consequence, where his an- cestor is seised in fee, a covenant to which the heir at law is entitled, on his ancestor's intestacy, as he is to the reversion (d). Accordingly, if one covenants with another and his heirs, to enfeoff him and his heirs of the manor of D. ; if he will not do it, and he to whom the covenant is made dies, his heir shall have an action of covenant upon the deed (e) ; for the intent of the covenant was, to have the inherit- ance conveyed to the heir ; and as the heir, on per- formance of the covenant, would have had the advan- tage of whatever, by the performance of the covenant, would have accrued ; so he shall have damages, which accrue by the non-performance thereof (/"). Even in cases in which a breach has been com- (c) Kingdonv. Nottle, 1 Mau. v. Cooke, Dy. 337, b. ; S. C. & Selw. 365. 4 Ibid. 53. Benl. 228 ; 1 And. 53 ; Jenk. (d) Sail v. Kitchingham, 10 Cent. 6. Case, 24. Mod. 158. (/) Wotton v. Cook, 1 And. (e) F. N. B. 145. C. Wotton 55. Chap. II.] Of the Rights of the Heir. 515 mitted during the life of the testator, the heir's title to bring an action is preferred to that of the exe- cutor, provided no actual damage has been sustained by the testator. Thus, where one conveyed to ano- ther in fee, with the common covenants for title, and it afterwards appeared, that the vendor was not seised in fee; notwithstanding which, the vendee had enjoyed undisturbed possession during his life ; the heir was considered to be the only person ca- pable of taking advantage of the covenant ; as the breach was not shown to have been a damage to the testator, nor was it alleged that the estate was pre- judiced during his life ; any damage, therefore, which accrued subsequently to his death, was matter which concerned the heir (g), or the devisee, in case of a devise ; for so long as the defendant had not a good title, there was a continuing breach ; and it was not like a covenant to do an act of solitary per- formance, which not being done, the covenant was broken once for all, but was in the nature of a cove- nant to do a thing toties quoties y as the exigency of the case might require (Ji). To the same effect is another case, decided a short time afterwards in the Court of Common Pleas (i). The action was brought by the plaintiff, as heir to his father, against the defendant, an executor, upon his testator's covenant in a conveyance to the plain- tiff's father, that he, the vendor, and his wife, would do all acts for further assurance ; a fine was required, (g) Kingdon v. Nottle, 1 Mau. (i)Kingv. Jones, 5 Taunt. 41 8; & Selw. 355. S. C. 1 Marsh. 107. (h) Ibid. 4 Mau. & Selw. 57. L L 2 51 G Of the Rights at Common Law. [Part IV. but not levied ; the vendee died, and, after the des- cent of the premises, the plaintiff was evicted ; and the court held, both on principle, and on the autho- rity of Kingclon v. Nottle, that, as the ultimate da- mage was not sustained in the time of the ancestor, the action remained to the heir in preference to the executor : and the decision was subsequently affirm- ed, in error, in the King's Bench (k). But had an actual eviction of the ancestor been occasioned by the breach of the covenant, depriving the testator of the rents and profits during his life, to that extent the personal estate would have been damnified, to which personalty the heir, as heir, could make no claim, and would, consequently, have been pre- cluded from taking any steps in that capacity for its recovery (/). Moreover, in the instance last put, the heir could have made no title to the land, as the eviction, assuming it to have been lawful, would have withdrawn all estate from the ancestor, and, of course, prevented its descent to the heir (m). So, on a covenant to repair, and leave in repair, if the premises are out of repair in the time of the an- cestor, and continue so in the time of the heir, it is a damage to the heir, who is entitled to sue ; and the damages are given to put the premises in re- pair, and not in respect of the length of time they continued in decay (n). (k) Jones v. King, 4 Mau. & (n) Vivian v. Campion, Holt, Selvv. 188. 178; S. C. 1 Salk. 141 ; 2 Lord (Z) Lucy v. Levington, 2 Lev. Raym. 1125; 1 1 Mod. 45. pi. 10. 26 ; S. C. 1 Vent. 175 ; 2 Keb. See Mascal's case, 1 Leon. 62 ; 831. S. C. Mo. 242. Lougher v. Wil- (m) Lucy v. Levington, sup. Hams, 2 Lev. 92. Chap. II.] Of the Rights of the Heir. 5 1 7 Generally speaking, the heir should be included by name in the covenant, to qualify him to support an action; but the circumstance of his being named is not, in all cases, an indispensable requisite to his competency to sue. To carry into effect the in- tention of the persons contracting, is the end to which the endeavours of the courts are directed ; and acting on this principle, the judges have decided, that where an intention is sufficiently apparent, that a covenant, in its nature running with the land, should continue in operation for a longer period than the life of the covenantee, advantage may be taken of it by the heir, although in terms not expressly named ; as if the covenant be entered into with the lessor, (being owner of the fee,) his executors and ad- ministrators only : In this case an action can be supported by the heir ; the mention of the executors affording satisfactory proof that the covenant was not meant to determine with the death of the testator (o). So, when a lessee covenants to pay rent to the lessor, (owner of the fee,) his executors, administrators, and assigns, during the term, the law will not suffer any construction to take away the energy of the words during the term; and though the covenant do not specify the heir, as it ought, yet, the rent being ex- pressly made payable during the term, the heir, in right of the reversion, is capable of maintaining an action (p). It is necessary for a party entitling him- self to an action as heir to his father, to show that (o) Lougher v. Williams, 2 148.161; 2 Lev. 13; T. Raym. Lev. 92. 213; 2 Keb. 798. 819. 833. 839; (p) Sacheverell v. Froggatt, Freem. 16, nora. Sacheverell v. 2 Saund. 367 a. ; S. C. 1 Vent. Walker. Anon. Dy. 45, a. b. 518 Of the Rights at Common Law. [Part IV. his father had some estate ; but it is otherwise where he declares on his own demise (y). Some, indeed, maintain that the heir, though not named, can in all cases, even in the absence of this strong indication of intention, take advantage of all covenants which are said to run with the land, being an estate of inheritance (r) : and, perhaps, the best way of putting it is, that the covenant will in all these cases run with the land, in favour of the heir, unless an evident intention be manifested to confine it to the covenantee (s). In the case of a warranty, however, a different law prevails (t). The same right belongs to the heir when he takes from his ancestor, tenant pur autre vie, living the cestui que vie, and such heir alone can avail himself of the covenants running with the land. But where a party is tenant for his own life only, no right of ac- tion can devolve on his heir ; as the dropping of the life on which the estate is held, necessarily effects a determination of the lease (u), (q) Willettv. , Holt, 568. were not named. And 2 Saund. (r) See the argument of Mr. 371, per Hale, C. J. Gifford, afterwards Lord Gifford, (s) See Roe dem. Bamford v. in Kingdon v. Nottle, 1 Mau. & Hayley, 12 East, 464. Selw. 357 ; 4 Ibid. 53; in which (*) Co. Lit. 334, b. case, the devisee was allowed to («) Brudnell v. Roberts, 2 recover, though heirs and assigns Wils. 143. Chap. II.] Of the Rights of the Devisee. 019 SECT. III. OF THE RIGHTS OF THE DEVISEE. Where, instead of permitting the lands to descend, III. Of the the proprietor has disposed of them by will, the de- devisee, visee is invested with the same rights as would other- wise have devolved on the testator's heir at law (v). For illustration : A lease contained a proviso, that if either of the said parties should be desirous of deter- mining the lease, at the end of the first seven or four- teen years of the said term of twenty-one years, it should be lawful for either of them, his executors or administrators, so to do, upon giving unto the other of them, his heirs, executors, or administrators, or leaving the same at his or their place of abode, twelve months' notice in writing of such his or their in- tention : the lessor died, having devised the pre- mises to his youngest son, who, as devisee, gave the required notice to determine the tenancy at the ex- piration of the seven years : the court held, that the object of the proviso manifestly was, that the inheri- tance should not be bound, on the one hand, against the will of the persons to whom the inheritance should belong ; and that, on the other hand, the les- see, and those claiming under him, should not be bound against their will ; but that in all cases, the parties interested, whosoever they might be, should have power to give the necessary notice for that pur- (t>) Kingdon v. Nottle, 4 Mau. 1 Barn. & Cres. 410; S. C. 2 & Selw. 53. Vyvyan v. Arthur, Dow. & Ry. 670. 520 Of the Rights at Common Law. [Part IV. pose ; that the right respected the interest demised, and, according to the rules which ascertained whe- ther a covenant was to be deemed to run with the land or not, would be considered as annexed to the reversion on the one hand, and to the term on the other ; that the proviso extended in reasonable con- struction to all representatives ; and that a notice by the devisee as hceresf actus was sufficient to determine the lease (w). SECT. IV. OF THE RIGHTS OF THE EXECUTOR OR ADMI- NISTRATOR. IV. Of the Executors and administrators represent their testa- rights of . . , the executor ™ r or intestate in respect of his contracts personal, oradmims- anc [ m reS p ec t of contracts relating to the realty, trator. 1 & . J where a damage has been sustained in the life-time of such testator or intestate (V) ; and an administra- tor de bonis non stands in the same position (j/). It is also to be observed, that the executor of an admi- nistrator, who in that capacity had granted a lease, has a right of action for non-payment of rent in pre- ference to an administrator de bonis non of the intes- tate ; the latter administrator being in paramount the lease of the former administrator^). (w) Roe dem. Bamford v. S. C. 3 Keb.298. 427. 463. 495. Hayley, 12 East, 464. 549 ; S. C. 1 Vent. 275, nom. (x) F. N. B. 145. D. 146. D. Norton v. Harvey; Ibid.259; S.C. (y) Smith v.Simonds,Comb.64. nom. Drue v. Baylye, Freem. (z) Drew v.Bayly, 2 Lev. 100; 392. 402. Chap. II.] Of the Rights of the Executor, 8$c. 521 Where a person having a term for years only, grants an underlease ; in respect of the covenants therein, on his decease possessed of the reversion, he is represented by his executors, and whether the breaches are incurred during the lessor's life, or since his death, they are the only persons who can recover damages from the covenantor for non-performance (a). But where the testator is the purchaser of an estate in fee simple, with the usual covenants for title, a mere breach of the covenant for seisin will not, of itself, support an action by his executor : the breach must be assigned specially with a view to compensa- tion for damage sustained in the lifetime of the testa- tor ; or the executor must shew, that he claims some interest in the premises, as assignee or otherwise. Therefore, in the absence of any damage to the tes- tator, which, if recovered, would properly form a part of his personal assets, or in the absence of such interest, the executor does not stand in a situation to take advantage of the breach (b). This appears to have been the ground on which an early case (c), be- fore noticed, was decided. An action was brought by an executor against a vendor, on a covenant by him with the testator, his heirs and assigns, for quiet enjoyment ; the testator had been evicted in his lifetime ; and it was determined, that the breach and damage had so clearly accrued during the vendee's life, that the executor was the proper person to sue, (a) See Mackay v. Mackreth, Selw. 408. Co. Lit. 162, a. 2 Chit. 461. (c) Lucy v. Levington, 2 Lev. (b) Kingdon v. Nottle, 1 Mau. 26 ; S. C. 1 Vent. 175 ; 2 Keb. & Selw. 355 ; 4 Ibid. 53. Cham- 831 . berlain v. Williamson, 2 Man. & 522 Of the Rights at Common Law. [Part IV. although the covenant was made with the purchaser, his heirs and assigns only ; for nothing descended to the heir. And this case has been frequently cited of late years with approbation (d). So, if in con- sequence of a breach of a covenant for seisin, the testator were prevented from selling, this would seem sufficient to vest the right of action in the executor (e). The like, if the demised premises were out of repair during the life of the testator, the lessor (/). One inconvenience would certainly result from allowing the executor to represent the testator in contracts relating to the freehold, where no damage has been sustained in the testator's lifetime. The executor, who could recover only nominal damages, would thereby preclude the heir, who is the party actually damnified, from recovering at all ; for it is apprehended, that another action could not be main- tained by the heir, on the same breach, after a for- mer recovery by the executor (g). SECT. V. OF THE RIGHTS OF THE ASSIGNEE. V. Of the As, on the one hand, an assignee will be bound by «;<«. M covenants real annexed to an estate, and which run assignee. (d) In Kingdon v. Nottle, ubi 56 ; S. C. 3 Salk. 109. pi. 10. sup. and King v. Jones, sup. (g) Kingdon v. Nottle, supra. (e) Kingdon v. Nottle, 1 Mau. See also Beely v. Parry, 3 Lev. & Selw. 362. 154. Brett v. Cumberland, Cro. (/) Morley v. Polhill, 2 Vent. Jac. 523. Chap. II.] Of the Rights of the Assignee. 523 along with it ; so, on the other, he may take advan- tage of such covenants ; and, therefore, if the lessor covenants to repair, or if he grants to the lessee so many estovers as will repair, or, as he shall burn within his house during the term ; these, as things appurtenant, will go with the land, into whose hand soever it may come (/«). So, if a man leases to another by indenture, the covenant in law created by the word demise, will go to the assignee of the term (i). Where the covenant is inherent in the land, in order to confer a right of action on the assignee, it does not appear to be essential that he should be expressly named in the covenant. Thus, where two coparceners made partition of land, and the one co- venanted with the other to acquit her of suit which was due ; and the coparcener, to whom the covenant was made, aliened, and the suit was in arrear ; and the assignee brought a writ of covenant against the coparcener to acquit her of suit; it was adjudged, that the writ was maintainable, notwithstanding the assignee was a stranger to the covenant ; and the reason given was, because the acquittal fell upon the land (k). It was also agreed, that if a covenant were (A) Bac. Ab. Covenant, (E) 18, a. Co. Lit. 384, b. Hyde v. div.5. Rol.Ab.521. 5Co. 17, b. The Dean, &c. of Windsor, Cro. F. N. B. 181. N. Eliz. 552, 3; S. C. Ibid. 457 ; {i) Spencer's case, 4th resol. Mo. 399 ; 5 Co. 24, a. nom. The 5 Co. 17, a. Nokes's case, 4 Co. Dean and Chapter of Windsor's 80, b. ; S. C. Mo. 419 ; Cro. case. The reader will observe, Eliz. 674. that p. 457 in the folio edition of (k) Spencer's case, 5 Co. 17, b. Cro. Eliz. is twice numbered by 524 Of the Rights at Common Law. [Part IV. made to say divine service in the chapel of another, there the assignee should not have an action of co- venant ; for the covenant could not in such case be annexed to the chapel, because the chapel did not belong to the covenantee. But if the covenant had been with the lord of the manor of D., and his heirs, lords of the manor of D., and inhabitants therein ; the covenant would be annexed to the manor, and there the assignee would have the action of covenant without privity of blood ; because the remedy by covenant would run with the land to give damages to the party grieved. So, a right of action devolves on the assignee, in case of a breach of covenant to renew (/) ; for quiet enjoyment, whether the interest assigned be an estate of inheritance or a chattel in- terest only, and whether any estate remain in the covenantor or not (m) ; or for further assurance (»)*. So, where husband and wife granted a watercourse through the wife's lands, with covenants for them- selves, their heirs and assigns, to cleanse, and keep it in repair ; and a recovery was suffered for strength- ening and confirming the grant ; and a bill was filed by the assignee of the grantee against the assignee of the lands, for a performance of the covenant ; the court held, that this was not a personal contract only, but one that ran with the land ; and though made by a feme covert, was established by the re- mistake : the page 457 above re- (m) Lewis v. Campbell, 7 Taunt, ferred to ought to be 473, as it 715 ; S. C. 3 J. B. Mo. 35 ; 3 follows p. 472. Barn. & Aid. 392, in error. (I) Skerne's case, Mo. 27. (n) Middlemore v. Goodale, lsteed v. Stoneley, And. 82. Cro. Car. 503; S. C.W.Jo. 406. pi. 148. Chap. II.] Of the Rights of the Assignee. 525 covery, and would bind the assignee of the land, at the suit of the assignee of the grantee (0). Persons coming in by act of law, us, tenant by statute-merchant, or statute staple, or elegit of a term, and he to whom a lease for years is sold by force of any execution, are also entitled to have an action on a covenant annexed to the land, in the same manner as one claiming by act of the party (jo). And before the statute of frauds (#■), requiring conveyances to be in writing, an assignee by parol could support an action (r). An assignee of a lease by estoppel cannot : therefore, if one having no estate in the premises grants a lease to A., who assigns to B., with a covenant for quiet enjoyment, and B. as- signs over to C, no action lies for C. against A. ; because nothing passed but by estoppel ; and as lessee by estoppel cannot assign any thing over, C. cannot be an assignee to support an action of covenant (*). And as a right of action on a covenant cannot be assigned at law (t), it follows, that a covenant broken in the time of a lessor, cannot be the foundation of an action by his assignee (u) ; unless the breach COn- to) Holmes v. Buckley, Prec. (r) Noke v. Awder, Cro. Eliz. Ch. 39 ; S. C. 1 Eq. Ca. Ab. 27. 373. 436 ; S. C. Mo. 419. pi. 4. Earl of Portmore v. Bunn, (s) Ibid. 3 Co. 63, a. 1 Barn. & Cres. 694 ; S. C. 3 (*) Lewes v. Ridge, Cro. Eliz. Dow. & Ry. 145. 863. 1 New Rep. 163. (p) 5 Co. 17, a. And see (w) Anon. 3 Leon. 51. pi. 72. ante, p. 480, et seq. Canham v. Rust, 8 Taunt. 227 ; (q) 29 Car. II. c. 3. s. 3. S. C. 2 J. B. Mo. 164. 526 Of the Rights at Common Law. [Part IV. tinue after the assignment to him ; in which case he is competent to maintain an action (v). As if a lessee covenants to repair within such a time after notice, and omits to repair upon notice by the assignee of the reversion, covenant lies, though the premises were out of repair before the assignment (to). (v) Mascal's case, Mo. 242 ; Nottle, ubi sup. S. C. 1 Leon. 62. Kingdon v. (w) Mascal's case, sup. 527 CHAPTER THE THIRD. OF THE LIABILITIES AND RIGHTS UNDER THE STA- TUTE 32 HEN. VIII. Cn. 34. RELATING TO GRAN- TEES OF REVERSIONS. By the rules of the common law, none but parties or privies to express covenants were bound by, or could take advantage of them. Grantees of rever- sions were regarded in the light of strangers, and were necessarily exempt from the liabilities cre- ated by the lessor's covenants, and at the same time deprived of all the immediate benefits which the ori- ginal grantors themselves enjoyed, except the action of debt, or distress. These inconveniences had long- been perceived : but when, under the arbitrary reign of Henry the Eighth, the religious houses were stripped of their accumulated landed possessions, and a large mass of property became, by the disso- lution of the monasteries, vested in the crown, and, through the king's bounty, in the hands of his most favoured subjects, the disadvantages accruing from the strictness of the common law were greatly ag- gravated (#). The king, indeed, was speedily re- lieved from these disabilities, by an act of parlia- ment (b), which invested him* and his successors (a) Isherwood v. Oldknow, 3 (b) 31 Hen. VIII. c. 13 ; en- Mau. & Selw. 394. Vernon v. titled " An Act for dissolution of Smith, 5 Barn. & Aid. 10. 4 Monasteries and Abbeys." Reeve's Hist. C. L. 234. 528 Of the Liabilities and Rights under the [Part IV. with all such rights, interests, entries, &c, as the late abbots, priors, &c, had in the rights of their said monasteries, &c. This statute formed the pre- lude to another, whereby the same powers were ex- tended to the grantees of the sovereign, and their several assignees ; and, on the other hand, tenants, and their assigns, were enabled to enforce the cove- nants stipulated for by their landlords. The words of the latter act (c) are : — " Where before this time divers, as well temporal as ecclesiastical and religious persons, have made sundry leases, demises, and grants to divers other persons, of sundry manors, lordships, ferms, meases, lands, tenements, meadows, pastures, or other here- ditaments, for term of life or lives, or for term of years, by writing under their seal or seals, containing certain conditions, covenants, and agreements, to be performed, as well on the part and behalf of the said lessees and grantees, their executors and as- signs, as on the behalf of the said lessors and grantors, their heirs and successors ; and forasmuch as by the common law of this realm, no stranger to any covenant, action, or condition, shall take any advantage or benefit of the same, by any means or ways in the law, but only such as be parties or pri- vies thereunto, by the reason whereof, as well all grantees of reversions, as also all grantees and pa- tentees of the king our sovereign lord, of sundry manors, lordships, granges, ferms, meases, lands, tenements, meadows, pastures, or other heredita- (r) 32 Hen. VIII. c. 34. Chap. Ill] Statute 32 Hen. 8. c. 34. 529 ments, late belonging to monasteries, and other re- ligious and ecclesiastical houses dissolved, sup- pressed, renounced, relinquished, forfeited, given up, or by other means come to the hands and pos- session of the king's majesty since the fourth day of February, the seven and twentieth year of his most noble reign, be excluded to have any entry or action against the said lessees and grantees, their ex- ecutors or assigns, which the lessors before that time might by the law have had against the same lessees for the breach of any condition, covenant, or agreement, comprised in the indentures of their said leases, demises, and grants. Be it therefore enacted by the king our sovereign lord, the lords spiritual and temporal, and the commons, in the pre- sent parliament assembled, and by authority of the same, that as well all and every person and persons, and bodies politic, their heirs, successors, and as- signs, which have or shall have any gift or grant of our said sovereign lord, by his letters patent, of any lordships, manors, lands, tenements, rents, parson- ages, tithes, portions, or any other hereditaments, or of any reversion or reversions of the same, which did belong or appertain to any of the said monas- teries, and other religious and ecclesiastical houses, dissolved, suppressed, relinquished, forfeited, or by any other means come to the king's hands since the said fourth day of February, the seven and twentieth year of his most noble reign, or which at any time heretofore did belong or appertain to any other person or persons, and after came to the hands of our said sovereign lord, as also all other persons being grantees or assignees to or by our said M M 530 Of the Liabilities and Rights under the [Part IV. " sovereign lord the king, or to or by any other person " or persons than the king's highness, and the heirs, " executors, successors, and assigns of every of them, " shall and may have and enjoy like advantages " against the lessees, their executors, administrators, " and assigns, by entry for non-payment of the rent, " or for doing of waste, or other forfeiture ; and also " shall and may have and enjoy all and every such " like and the same advantage, benefit, and remedies " by action only, for not performing of other con- " ditions, covenants, or agreements, contained and " expressed in the indentures of their said leases, de- " mises, or grants, against all and every the said les- " sees, and farmers, and grantees, their executors, " administrators, and assigns, as the said lessors or " grantors themselves, or their heirs or successors, " ought, should, or might have had and enjoyed at any " time or times, in like manner and form, as if the re- " version of such lands, tenements, or hereditaments " had not come to the hands of our said sovereign lord, "or as our sovereign lord, his heirs and successors, " should or might have had and enjoyed in certain " cases, by virtue of the act made at the first session " of this present parliament, if no such grant by let- " ters patents had been made by his highness." "II. Moreover, be it enacted by the authority " aforesaid, that all farmers, lessees, and grantees of " lordships, manors, lands, tenements, rents, parson- " ages, tithes, portions, or any other hereditaments, " for term of years, life or lives, their executors, ad- " ministrators, and assigns, shall and may have like " action, advantage, and remedy against all and every " person and persons, and bodies politic, their heirs, Chap. III.] Statute 32 Hen. 8. c. 34. 531 '* successors, and assigns, which have or shall have " any gift or grant of the king our sovereign lord, or of " any other person or persons, of the reversion of the " same manors, lands, tenements, and other heredita- " ments so letten, or any parcel thereof, for any condi- " tion, covenant, or agreement, contained or expressed " in the indenture of their lease and leases, as the " same lessees, or any of them, might and should have " had against the said lessors and grantors, their heirs " and successors ; all benefits and advantages of re- " coveries in value, by reason of any warranty in deed '* or in law by voucher or otherwise, only excepted." " III. Provided always, that this act nor any " thing or things therein contained, shall extend to " hinder or charge any person or persons for the " breach of any covenant or condition comprised in " any such writing as is aforesaid, but for such cove- " nants and conditions as shall be broken or not per- " formed, after the first day of September next com- " ing, and not before ; any thing before in this act " contained to the contrary thereof notwithstanding." There are some dicta to the contrary (d), but the better opinion now is, that at common law, a grantee of a reversion could not maintain an action of cove- nant against the lessee, upon his express covenant (e); (d) Athowe v. Heming, 1 Rol. (e) Barker v. Damer, 3 Mod. 80; S.C. nom. Attoe v. Hem- 336; S.C. Carth. 182 ; 1 Salk. mings, 2 Bulstr. 281 ; S. C. nom. 80 ; S. C. nom. Barker v. Dor- Alfov.Henning, Ow. 151. IRol. mer, 1 Show. 191. Thrale v. Ab.521.pl. 6. Thursbyv. Plant, Cornwall, 1 Wils. 165. Webbv. 1 Saund. 239, argo. Russell, 3 Term Rep. 401 . M M 2 532 Of the Liabilities and Rights under the [Part IV. because, if he could, the provision of the statute 32 Hen. VIII. would have been in a great degree unnecessary. The statute recites, that no stranger to any covenant should take advantage of the same, and then it recognises, as a consequence, the situ- ation of all grantees of reversions. The object of the statute, therefore, was the benefit of that class of persons recited in it(/). Upon an implied covenant, however, an action at the suit of the assignee of the reversion was un- doubtedly maintainable prior to the passing of that act. In proof of this, two or three cases are to be met with. In one, a lessee for forty years demised to the defendant for twenty years, rendering an an- nual rent of 16/., which the defendant covenanted to pay ; the plaintiff, to whom the lessor afterwards assigned his reversion, commenced his action for rent in arrear ; and the court, in pronouncing judg- ment in his favour, declared, that they would intend that the action was brought on the Reddendum, which was a covenant in law, and ran with the reversion at common law, before the statute of Hen. 8., and passed by the grant of the reversion (g). And the point has been further established by a much later determination. A. being seised in fee of a mill, and of certain lands, granted a lease of the latter for years ; the lessee yielding and paying to the lessor, his heirs and assigns, certain rents, and doing cer- (/) Isherwood v. Oldknow, 3 206 ; S. C. nom. Harper v. Bird, JVlau. & Selw. 394. T. Jo. 10-'. (g) Harper v. Burgh, 2 Lev. Chap. III.] Statute 32 Hen. 8. a. 34. 533 tain suits and services, and also doing suit to the mill of the lessor, his heirs and assigns, by grinding all such corn there as should grow upon the demised premises. The lessor afterwards devised the mill, and the reversion of the demised premises, to the same person ; and it was held, that the reservation of the suit to the mill was in the nature of a rent, and that the implied covenant to render it, resulting from the reddendum, was a covenant that ran with the land, as long as the ownership of the mill and the demised premises belonged to the same person, and consequently that the assignee of the lessor might take advantage of it (//). The effect of the statute was to transfer the privity of contract from reversioner to reversioner, and to enable persons not strictly privies thereto, to bring actions upon the covenant, which at common law they were not entitled to maintain (*) ; thus providing a mutuality of remedy for and against the grantees of reversions, and for and against lessees, or their assignees ; and placing the grantees or assignees in the same situation, and giving them the same remedy against the lessees, as the heirs at law of individuals, or the successors, in the case of corporations, had before the statute (k). Wherever, therefore, the sta- (h) Vyvyan v. Arthur, 1 Barn. S. C. nom. Nurstie v. Hall, 1 & Cres. 410; S. C. 2 Dow. & Vent. 10. Barker v. Darner, ante. Ry. 670. See likewise Hamley Bord v. Cudmore, Cro.Car. 183 ; v. Hendon, 12 Mod. 327. Lord in debt. Isherwood v. Oldknow, Uxbridge v. Staveland, 1 Ves. 56. 3 Mau. & Selw. 395. Wey v. (0 Thursby v. Plant, 1 Saund. Yally, 6 Mod. 194. 237; S. C. 1 Sid. 401 ; 1 Lev. (*) Webb v. Russell, 3 Term 259 ; 2 Keb. 439. 448. 468. 492 ; Rep. 402. 534 Of the Liabilities and Rights under the [Part IV. tute gave a grantee of a reversion the advantage of recovering on a covenant entered into by a tenant, there also the tenant, or his assignee, enjoyed a cor- responding remedy against such reversioner, on a covenant made by his grantor. On covenants merely collateral, however, the statute has no operation : those only which concern the land demised, as, to repair the houses, mend the fences, scour the ditches, preserve the woods, and such like, come within the scope of its provisions (J). And thus, in respect of covenants which would run with the land, and bind an assignee of the lease, in respect of his having the possession, an assignee of the reversion, though as- signees are not named in the covenant, can have his action in respect of that reversion, where there has been a breach of the duty undertaken to be ob- served by the tenant (tri). And the true test in these cases is, if the performance of the covenant be bene- ficial to the reversioner, in respect of the lessor's demand, and to no other person, his assignee may sue upon it ; but if it be beneficial to the lessor, without regard to his continuing owner of the estate, it is a mere collateral covenant, upon which the as- signee cannot sue (w). The construction of the statute has occasioned some further decisions. It has been adjudged, That (I) Co.Lit.215,b. 5Co.l8,a. Anon. Mo. 159. Sacheverell v. Chaworth v. Phillips, Mo. 876. Froggatt,2Saund. 371. Mascal's (m) Kitchin v. Buddy, T. case, Mo. 242 ; S.C. 1 Leon. 62. Raym. 80; S. C. 1 Lev. 109 ; (n) Vyvyan v. Arthur, 1 Barn. 1 Keb. 565. 572; S.C. nom. & Cres. 417; S.C. 2 Dow. & Kitchin v. Compton, I Sid. 157. Ry. 670. Chap. III.] Statute 32 Hen. 8. c. 34. 535 the act extends to the grantee of the reversion of the subject, as well as of the king (o). And to grants made by the successors of the king, albeit the king be only named in the act(p). It extends likewise to covenants entered into by or with lessees for years, or for life ; but not to cove- nants entered into on a conveyance in fee, or gift in tail (), the grantee of a reversion cannot support an action for a covenant broken before the assignment to him (c) ; unless the breach be committed before the assignment, and continue so afterwards ; as if build- ings out of repair be allowed after the transfer of the reversion to remain in a dilapidated condition (d). But a right of action once vested and attached in the grantor for a breach in his own time, will not be de- feated by his assignment over(e) ; although he may after such breach accept the rent from the tenant's assignee (/) ; for the contract, which was transferred by the statute, still remains as to that breach, though the privity of estate is gone (g). (a) Glover v. Cope, 4 Mod. 80 ; (d) Mascal's case, Mo. 242. S. C. Carth. 205 ; 3 Lev. 326; (e) Anon. Skin. 367. Midg- Holt, 159; Skin. 296. 305; 1 ley v. Lovelace, semb.S.C. Carth. Show. 284 ; Comb. 185; 1 Salk. 289 ; S. C. 12 Mod. 45 ; Holt, 185. Webb v. Russell, 3 Term 74. Rep. 398. Isherwoodv.Oldkn'ow, (/) Ashurstv.Mingay,2Show. 3 Mau. & Selw. 386. 133 ; S. C. Sir T. Jo. 144 ; Lil. (b) See ante, p. 525. Ent. 135. Thursby v. Plant, 1 (c) Lewes v. Ridge, Cro. Eliz. Sid. 402. 863 ; Cited 4 Mau. & Selw. 56. (g) Midgley v. Lovelace, sup. Chap. III.] Statute 32 Hen, 8. c. 34. Nor is the tenant liable at the suit of both the grantor and grantee for the same default : were it otherwise, he might be twice charged : a recovery by the one will, therefore, be a bar to the other (A). Indeed, as the statute transfers the privity of con- tract, together with the estate in the land, to the as- signee of the reversion, it should seem, that the gran- tor cannot, after he has parted with his reversion, support an action for a breach committed subse- quently to his grant ; and that the grantee is the only person capable of suing (i). But it appears, that the grantee of the reversion may maintain an action of covenant for a breach against the first lessee, not- withstanding such lessee's assignment over (k). A case adjudged a few years ago, in which the operation of this statute became incidentally the sub- ject of observation, requires in this place a word of remark (/). The declaration stated, that the Earl of Portmore, and one Bennett Langton, (since deceas- ed,) granted a license to A. Raby, to continue one channel, opening, way, or passage, through the west bank or side of the river Wey, near Coxe's Lock, upon condition that Raby would repair to the satis- faction of the said Earl and B. Langton, their heirs or assigns, in and upon the said channel, the tum- bling-bay there, in order that the part of the waste or surplus water of the said river Wey, which would (h) Beely v. Puny, 3 Lev. 154. Edwards v. Morgan, 3 Lev. 233. (i) Ibid. See 3 Term Rep. (I) The Earl of Portmore v. 394. arg. Bunn, 1 Barn. & Cres. 694 ; S.C. (A) Anon. Godb. 270. pi. 378. 3 Dow. & Ry. 145. Thinsby v. Plant, I Sid. 402. 531) 540 Of the Liabilities and Rights under the [Part IV. otherwise run through the sluices or water-gates of Coxe's lock, should pass over the tumbling-bay, through the channel-head or weir belonging to the mills of A. Raby, lying near to Coxe's lock, to be possessed for the term of twenty-one years, for the express purpose of working the mills of Raby ; and he covenanted for himself, his executors, adminis- trators, and assigns, for payment of a rent. In the deed itself, the Earl and Langton were described as the persons having the greatest proportion or share of the profits of the river Wey. By an act of parlia- ment, 22 & 23 Car. II., the river Wey was made a navigable river for ever, and the soil of the river and its banks was vested in certain persons, naming them, their heirs and assigns, upon the trusts therein men- tioned, with power to elect new trustees ; and it was enacted, that it should be lawful for any two persons, having the greatest proportion or shares in the profits of the river, to nominate and appoint one or more receiver or receivers of the profits of the river or na- vigation. The case was decided upon a different point; but all the judges declared themselves to be of opinion, that if the grantors had such a legal in- terest as they professed to have by the declaration, and had made such a grant as was set out in the de- claration, it would have operated as the grant of an interest in a real hereditament, and that the assignee of the grantee would be liable for a breach of cove- nant contained in such grant, within the statute 32 Hen. 8. c. 34. Now, it is with much deference submitted, that the propriety of the application of the statute to the circumstances of this case seems very questionable. The statute is solely " concern- Chap. III.] Statute 32 Hen. 8. c. 34. ^ 541 ing grantees of reversions to take advantage of the conditions to be performed by the lessees," but does not by its influence enable grantors of interests to re- sort to the assignees of their grantees for breaches of covenant. The covenant, where it ran with the land, so as to charge the grantee's or lessee's assign, pos- sessed that property under the rules of the common law, long before the enactment of the statute of Hen. 8. In the case just quoted, it will be seen, that there was no assignment of the reversion, so as to call for the introduction of this statute. One of the grantors, the Earl of Portmore himself, was the plaintiff, nor can it be made to appear from any part of the case, that there had been a grant or assign- ment of the reversion. The only assignment was by the grantee of the privilege ; but a transfer of the reversion, even had it existed, would not mend the apparent error; for the observations of the court were expressly confined to the assignee of the gran- tee. It is then, humbly suggested, that, as the sta- tute relates to grantees of reversions only, and as, in the case before us, no grant of the reversion had been made, it follows, that a reference to the act of 32 Hen. 8. was uncalled for and inapplicable. Before closing this subject we may notice, that in order to make a person an assignee, he ought to come in of the same estate in respect of which the covenant was made ; for should he come in by title paramount, he will not be invested with that cha- racter ; as if lessee for twenty years leases for ten, and afterwards surrenders to him in reversion ; the reversioner, being in by elder title, cannot have the 542 Of the Liabilities and Rights under, 8$c. [Part IV. benefit of a condition or covenant entered into by the under-lessee (m). The like of a lord entering for an escheat or forfeiture (m). But a covenant entered into by a lessee with a tenant for life, the donee of a power to lease, his heirs and assigns, may be taken advantage of by a remainder-man, as an assignee, within the statute 32 Hen. 8. c. 34. ; because the lease must be considered as emanating from the person who created the power, and as deriving its force and authority from him ; and thus, the donor of the power being in the eye of the law the lessor, the remainder-man, coining in under him, stands in the relation of assignee to such donor (o). Indeed, every one who comes in by the act and limitation of the party, though in the post, is a sufficient grantee within the statute 32 Hen. 8. (jo). And it seems to have been the better opinion (q), that the bargainee of a reversion by bargain and sale, indented and inrolled, was an assignee within this statute, though he had but an use by the act of the party, and the posses- sion by the statute 27 Hen. 8. c. 10. (m) Chaworth v. Phillips, Mo. Davis, Woodf. Landl. and TenA 876. Thre'r v. Barton, Mo. 94. 448. 6th ed. Goodtitle v. Fu- Webb v. Russell, 3 Term Rep. nucan, 2 Dougl. 572. Machel 393. See also Tayleur v. Dick- v. Dunton, 2 Leon. 33. Whit- enson, 1 Russ. 521. lock's case, 8 Co. 69, b. (m) Co. Lit. 215, b. (p) Co. Lit. 215, b. * Mo. 98. (o) Isherwood v. Oldknow, 3 (y) Lee v. Arnold, 4 Leon. 29. Mau. & Selw. 382. Anon v. PART THE FIFTH. OF THE REMEDIES AND RELIEF INCIDENT TO COVE NANTS. CHAPTER THE FIRST. OF THE REMEDY AT LAW ; AND HEREIN OF BONDS FOR PERFORMANCE OF COVENANTS. For a breach of covenant the law has provided the remedy of an action of covenant, in which damages are sought and recovered in proportion to the in- jury sustained by the covenantee. Debt, as we shall see, is, in some particular cases, also maintain- able on a covenant.. The method of suing out a writ of covenant has fallen into disuse, and no distinction now exists in the mode of commencing proceedings, whether the form of action be covenant, account, debt, annuity, or detinue. In all these cases the original writ is called a precipe, by which the de- fendant has an option given him, either to do what is required, or to show cause to the contrary (a). At common law process of outlawry did not lie in actions of covenant, but this was altered by an early statute (b), which, after reciting that there was great delay in actions of annuity and actions of covenant, because there lay no process of outlawry in such (a) 1 Tidd's Pract. 104.9th (b) 23 Hen. VIII. c. 14. edit. >44 Of the Remedies, §c. incident to Covenants. [Part V. nature of actions, ordained and enacted, that like process be had in every writ of annuity and covenant thereafter to be sued, as was in an action of debt. An action of covenant can be had recourse to in those cases only in which there is a contract under hand and seal ; and in this circumstance it is parti- cularly distinguishable from assumpsit ; for assump- sit, although for the recovery of damages, cannot in general be supported where the contract was origin- ally under seal, or where a deed has been taken in satisfaction (c). So, if a covenant has been varied by a subsequent parol agreement, and another contract substituted in lieu of the former, such parol agree- ment can neither be the foundation of an action of covenant (d), nor pleaded in bar to an action brought on the original contract (e) ; but it may be the sub- ject of an independent action of assumpsit (/). Where a deed contains a contract, express or im- plied, for the payment of a sum certain, debt and covenant are in general concurrent remedies ; but if the damages are unliquidated, or incapable of being reduced by averment to a certainty ( g), debt is not maintainable ; it lies only for the recovery of money in numero ; and though the distinction between the terms, money in numero, and damages, may at first (c) Bac. Ab. Debt, G. See (e) Littler v. Holland, 3 Term Acton v. Symon, Cro. Car. 414. Rep. .590, 2. Bulstrodev.Gilbum,2Stra. 1027. (/) Heard v. Wadham, 1 East, (d) Littler v. Holland, 3 Term 619. 630. Rep. 590. Heard v. Wadham, (g) Sanders v. Marke, 3 Lev. 1 East, 619. 429. Anon. Sty. 31. 1 Dougl.6. Chap. 1.] Of the Remedy at Law. 545 sight appear to be somewhat technical ; yet, on fur- ther examination, the difference will be found to consist in something more than form ; for instance, to an action of debt for rent, rien in arrere is a good plea (A), but not to covenant, as in the latter case the defendant would then confess the covenant broken, and the plea would tend but in mitigation of da- mages^'). Where money is stipulated to be paid by instalments, until the whole debt is due, unless it be secured by a penalty, debt cannot be supported (A) ; covenant in such cases is the proper remedy ; and each successive default in payment at the appointed time, will give the covenantee a fresh right of action for that particular instalment (/). This form of action is particularly resorted to on breaches of covenants contained in leases for years, and is, in many other instances, a preferable remedy to an action of debt. Thus, where the grantor of an annuity has become bankrupt or insolvent, it is ad- visable to proceed in covenant for arrears due after the bankruptcy or insolvency ; an action of debt on the annuity deed, or on the bond, might be met by a plea of bankruptcy and certificate, or a plea of dis- charge under the insolvent act ; which would gene- rally operate as a bar(w). So, where rent is in arrear (h) Warner v. Theobald, 2 Blac. 547. Coatcs v. Hewit, Cowp. 588. 1 Wils. 80. Hallet v. Hodges, (i) Hare v. Savill, 1 Brownl. Ibid. 19. Tyndal v. Hutchinson, 3 (I) Co. Lit. 292, b. Lev. 170, on a plea of nil debet. (or) Cotterelv. Ilookc, 1 Dougl (A) Rudder v. Price. I Hen. 97 N N •54G Of the Remedies, fyc. incident to Covenants. [PartV. under a lease, and the premises are out of repair, in which case unliquidated damages are claimed, the plaintiff should sue in covenant, because damages for the whole demand are recoverable. The declaration in this action must show that the contract was under seal, and should usually make a profert thereof, or offer some excuse for the omis- sion. It is not necessary to state the consideration of the defendant's covenant, unless the performance of it constituted a condition precedent, when such performance must be averred : and only so much of the deed and covenant should be set forth as is es- sential to the cause of action, and each may be stated according to the legal effect ; though it is more usual to declare in the words of the deed : and the breach also may be in the negative of the covenant generally, or according to the legal effect, and some- times in the alternative : and several breaches may be assigned at common law : and damages being* the object of the suit, should be laid sufficient to cover the real amount. The judgment in this action is, that the plaintiff recover a named sum for his damages which he hath sustained by reason of the breach or breaches of co- venant, together with full costs of suit, to which the plaintiff is entitled, though the damages recovered be under 40s., unless the judge certify under the statute 43 Eliz. c. 6. When the defendant suffers judgment by default, he is not bound in this action to put in bail in error, which circumstance renders the action Chap. I.] Of the Remedy at Lair. 547 of debt for rent, or money due on a contract for a sum certain, preferable to covenant («). The statutes of limitations are confined to the par- ticular actions enumerated therein, and do not ex- tend to actions of covenant (0). A practice obtained very generally at an early Of bonds for period of executing bonds as additional securities f cove _ for the performance of covenants ; and between co- nants, venants in general, and covenants secured by a pe- nalty or forfeiture, there is this difference : — In the latter case the obligee has his election ; he may either bring an action of debt for the penalty, and recover the penalty ; (after which recovery of the penalty he cannot resort to the covenant, because the penalty is to be a satisfaction of the whole (p) ;) or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty toties quoties (cf). Indeed, the obligee has been allowed to recover on the bond, and on the covenant also. The defendant by his bond, which recited that the plaintiff had agreed to sell him so many stacks of wood, and that the de- fendant covenanted to pay the plaintiff 35/. for every hundred of the said stacks, bound himself in a pe- nalty of 100/. for performance ; the plaintiff showed that there were so many stacks, &c, and brought his action for 310/., &c, as the total forall the said stacks. («) 1 Chit. Plead. 119. 3d ed. 387. (0) 1 TiddPr. 15. 7th ed. (7) Lowe v. Peers, 4 Burr. (p) Bird v. Randall, 3 Burr. 2228; S.C. Wilm. 364. 1345; S. C. 1 W. Blac. 373. N N 2 548 Of the Remedies, 8$c. incident to Covenants. [PartV. An objection was taken, that the plaintiff could not have an action for more than the penalty ; but Holt, C.J. said, that the plaintiff had his election to sue for the penalty, or for the rate agreed, although it were more than the penalty. And he might sue for the 310/. for the wood, and for the 100/. penalty also; for the penalty was only inserted to enforce the pay- ment for the wood ; and it could not be intended, that if the plaintiff sold wood to the value of 1000/., he should be content with the penalty only (r). By taking a bond for performance of covenants, the obligee acquires in one respect a considerable additional benefit. We have seen (s), that at common law a devisee was not liable to an action of debt or covenant, in respect of the lands devised, for a breach of the testator's covenant ; and we have also seen, how easily a covenantee might even unintentionally be defeated of his right of resorting to the real property, by the covenantor's disposing of his estate by will to a stranger ; and we have likewise noticed, that this defect in the law was remedied, as to ac- tions of debt, by the statute of fraudulent devises (/) : the advantage, therefore, of taking a bond for per- formance of covenants is obvious : on a breach of covenant the bond becomes absolute, and the penalty becomes an immediate debt, and consequently con- fers on the obligee, through the medium of the sta- (r) Ingledew v. Cripps, 2 Ld. liner v. Chilliner, 2 Ves. 528. Raym. 814; S. C. nom. Incle- Howard v. Hopkyns, 2 Atk. 371. don v. Crips, 2 Salk. 658 ; S. C. (s) Ante, p. 452. nom. Grips v. Ingledew, Holt, (t) 3 Wm. & M. c. 14. 200; 7 Mod. 87. See also Chil- Chap.l.] Of the Remedy at Law. 549 tute, the power of attaching the lands in the hands of a devisee, for satisfaction in damages for the co- venant broken. Where a lessor takes a bond of this description, he will generally find it more advantageous to sue on the covenants contained in the lease for general da- mages, than to proceed on the bond for the penalty ; because by adopting the latter course he is, as before observed (u), precluded from afterwards suing on his covenant : and as he can never recover on the bond an amount exceeding the penalty, he may be ulti- mately left, on future breaches, without the means of redress ; whereas he may proceed on his covenant for breaches toties quoties ; and may recover damages far exceeding the amount of the penalty (y). The inconveniences attending bonds of this nature, and the hardships entailed upon the obligors, when legal proceedings were instituted for recovering the penalty, were soon felt, and occasioned loud com- plaint. The strict rules of the common law enabled a plaintiff, on proof of a breach of one covenant, to enforce the payment of the whole amount secured by the bond, however disproportioned it might be to the actual damage sustained by the obligee : the obligor, indeed, under such oppressive circumstances, might resort for relief to a court of equity, which (u) Ante, p. 547. & Pul. 346. Harrison v. Wright, (v) Johnson v. Bland, 2 Burr. 13 East, 343, 8. 1087. Astlcy v. Weldon, 2 Bos. 550 Of the Remedies, 8$c. incident to Covenants. [Part V. would direct an issue of quantum damnijicatus (w), and prevent execution being enforced for more than sufficient to make full compensation ; but this circuitous course of procedure was not always compatible with his means or inclination. A remedy was in consequence provided by the legislature ; and by the statutes and 9 Wra. 3. it was enacted (.r), " That in all actions upon any bond or bonds, or on " any penal sum, for non-performance of any covenants " or agreements in any indenture, deed, or writing " contained, the plaintiff or plaintiffs may assign as " many breaches as he or they shall think fit, and the "jury, upon trial of such action or actions, shall and " may assess, not only such damages and costs of suit " as have heretofore been usually done in such cases, " but also damages for such of the said breaches so to " be assigned, as the plaintiff upon the trial of the " issues shall prove to have been broken, and that the " like judgment shall be entered on such verdict as ' ' heretofore hath been usually done in such like actions; " and if judgment shall be given for the plaintiff on a " demurrer, or by confession, or nihil dicit, the plain- " tiff upon the roll may suggest as many breaches of " the covenants and agreements as he shall think fit, " upon which shall issue a writ to the sheriff of that " county where the action shall be brought, to sum- " mon a jury to appear before the justices or justice (w) White v. Sealy, 1 Dougl. c. 11. , and in the practice of courts 50. And see a valuable note " on of equity," 3 Ev. Stat. 324. 2d the law respecting the relief given edit. against a penalty, both in the con- (x) 8 & 9 Win. Ill . c. 1 1 . s. 8. struction of the stat. 8 & 9 W. III. Chap. I. j Of the Remedy at Law . 551 " of assize, or nisi prius, of that county, to inquire of " the truth of every one of those breaches, and to assess " the damages that the plaintiff should have sustained " thereby ; in which writ it shall be commanded to "the said justices or justice of assize, or nisi prius, "that he or they shall make return thereof to the " court from whence the same shall issue, at the time " in such writ mentioned ; and in case the defendant 11 or defendants, after such judgment entered, and " before any execution executed, shall pay unto the " court where the action shall be brought, to the use " of the plaintiff or plaintiffs, or his or their executors " or administrators, such damages so to be assessed " by reason of all or any of the breaches of such cove- " nants, together with the costs of suit, a stay of exe- " cution of the said judgment shall be entered upon " record ; or if by reason of any execution executed, " the plaintiff or plaintiffs, or his or their executors or " administrators, shall be fully paid or satisfied all ' ' such damages so to be assessed, together with his " or their costs of suit, and all reasonable charges and " expenses for executing the said execution, the body, " lands, or goods of the defendant, shall be thereupon " forthwith discharged from the said execution, which " shall likewise be entered upon record ; but notwith- " standing in each case such judgment shall remain, " continue, and be, as a further security to answer to " the plaintiff or plaintiffs, and his or their executors " or administrators, such damages as shall or may be " sustained for further breach of any covenant or co- " venants in the same indenture, deed, or writing con- " tained, upon which the plaintiff or plaintiffs may " have a scire facias upon the said judgment against 5&2 Of the Remedies, 8§C. incident to Covenants. [PartV. " the defendant, or against his heir, terre-tenants, or " his executors or administrators, suggesting other " breaches of the said covenants or agreements, and " to summon him or them respectively to show cause " why execution shall not be had or awarded upon " the said judgment, upon which there shall be the " like proceeding as was in the action of debt upon " the said bond or obligation, for assessing of damages " upon trial of issues joined upon such breaches, or " inquiry thereof upon a writ to be awarded in man- " ner as aforesaid ; and that upon payment or satis- " faction in manner as aforesaid, of such future da- " mages, costs, and charges as aforesaid, all further " proceedings on the said judgment are again to be "stayed, and so tot'ies quoties, and the defendant, his " body, lands, or goods, shall be discharged out of " execution, as aforesaid" (y). This law was made in favor of defendants, and is highly remedial, calculated to give plaintiffs relief to the extent of the damage sustained, and to protect defendants against the payment of further sums than what are in conscience due, and also to take away the necessity of proceedings in equity to obtain relief against an unconscientious demand of the whole penalty in cases where small damages only have accrued (z). And it is now settled (a), not- (y) As to the mode of pro- 5 Ves. 331. ceeding under this statute, see a (a) Drage v. Brand, 2 Wils. learned note by the late Serjeant 377. Goodwin v. Crowle, 1 Williams, 1 Saund. 58. Wils. 357. Hardy v. Bern, Cited (z) Hardy v. Bern, 5 Term 5 Term Rep. 540 5 Ibid. 637; Rep. 637, Mackworth v. Thomas, 13 East, 3, n. Roles v. Rose- Chap. I.] Of t lie Remedy at Law. 553 withstanding the existence of an apparent determi- nation to the contrary (/»), that the statute is com- pulsory on the plaintiff, and therefore he cannot refuse to proceed according to its provisions. He must assign the breach of those covenants for which he proceeds to recover the satisfaction ; and if the defendant pleads to issue, and the cause goes to a jury for trial, the jury, upon trial of such cause, must assess damages for such of the breaches as- signed as the plaintiff upon the trial of the issues shall prove to have been broken. Nor is it neces- sary that the covenants or agreements should be in an instrument distinct from the bond ; they are with- in the statute if comprised in the condition of the bond itself (c). Until the statute, the plaintiff could assign only one breach on the bond (il) ; for by assigning several breaches the declaration was objectionable on the ground of duplicity ; because the bond was forfeited by the breach of one covenant as well as of seve- ral (e). It was settled so long ago as the time of Siderfin, that where a bond is given generally for perform- ance of covenants in a lease, it is extended to pro- tect breaches in implied as well as express cove- well, 5 Term Rep. 538. Walcot (d) King v. Gogle, Freem. 156. v. Goulding, 8 Term Rep. 126. (e) Symms v. Smith, Cro.Car. (6) Walker v. Priestly, Com. 176. Barnard v. Michel, 1 Vent. 376. 1 14. 126 ;S.C. 2 Keb. 754.766; (c) Collins v. Collins, 2 Burr. 3 Salk. 108. pi. 7. 820, 6. 554 Of the Remedies, <$c. incident to Covenants. [PartV. nants ; and if rent be not paid, or an eviction take place, the bond becomes forfeited for breach of the implied covenants, arising in the one case on the words yielding and paying, and in the other, on the words grant and demise (/). It may also be mentioned, that a bond, and the covenants to which it relates, constitute but one assurance ; and the one being made void, the other fails of effect. A release of covenants, therefore, will operate as a discharge of an obligation given for securing the performance of such covenants (g). (/) Iggulden v. May, 9 Ves. 308; 2 Keb. 116. Capenhurst 330. Nokes's case, 4 Co. 80, b. v. Capenhurst, T. Raym. 27 ; But see 2 Brownl. & Gold. 214. S. C. 1 Lev. 45 ; 1 Keb. 130. (g) Jevons v. Harridge, 1 Sid. 164. 183. CHAPTER THE SECOND. OF RELIEF IN EQUITY. Before the reader commences the perusal of this chapter, he should be apprized of the object with which it is here inserted. It is not intended to enter into that wide field of learning, the doctrines of the Court of Chancery in cases of covenant in general : the subject would be inexhaustible. As that Court, in carrying an agreement into execution, makes no distinction whether it be under seal or not, it is evident, that to discuss the principles and practice of the court, with reference to covenants in general, would lead to an investigation of the most extensive and most complicated branch of equitable jurispru- dence, and would introduce much matter foreign to the subject of this volume. It is therefore proposed, that this part of the work should constitute a summary of the principles of equity connected with the law of covenants, as it has been treated of in the preceding pages ; and should briefly recapitulate, by way of illustration, some of the chief points of such express covenants as have already been particularly noticed. These inquiries may be distributed under the follow- ing heads : First, Relief for the covenantee ; 1. By way of specific performance; and 2. By way of in- junction to restrain breaches of covenants : and, Secondly, Relief for the covenantor, against forfeiture occasioned by his breach of covenant. 556 Of Rdicf in Equity . [ Part V . SECT. 1. OF RELIEF IN EQUITY FOR THE COVENANTEE. 1. Byway The imperfect compensation afforded by damages perform- recoverable at law for a breach of covenant, occasions ance. a frequent application to equity to enforce a perform- ance of the agreement in specie. The court assumed that jurisdiction upon the simple principle, that the party had a moral right to the observance of the contract, to which right the courts of law, whose jurisdiction did not extend beyond damages, had not the means of giving effect ; and even that was con- sidered by the courts of law to be a great usurp- ation^). It is on this ground that equity, in matters of real property, or property which partakes of the realty, exercises its authority to put a purchaser in the actual possession of the subject of his purchase (b). But the court does not decree specific execution according to the strict letter of the covenant ; a con- scientious modification of it, as circumstances may require, is uniformly made(c). There are few cases in which a court of equity will decree a performance of a covenant or agree- ment upon which there cannot be an action at law, (a) Alley v. Deschamps, 13 Madd. 133. Ves. 227, 8. Halsey v. Grant, (c) Davis v. Hone, 2 Scho. & Ibid. 76. Lef. 341. 348. (6) Newdigate v. Helps, 6 Chap. II.] For the Covenantee. . 557 according: to the words of the articles and the events that have happened. The court, indeed, will carry several agreements into execution, upon which an action at law cannot be maintained, by reason of the form of the instrument ; but rarely, where the cove- nant was not performed by reason of the events, such as a contingency not happening (el). But under some circumstances, where the action at law has been lost by the default of the very party seeking the specific performance, if it be, notwithstanding, conscientious that the agreement should be per- formed, equity will carry it into execution, as, in cases where the terms of the agreement have not been strictly performed on the part of the person seeking specific performance, and to sustain an action at law performance must be averred accord- ing to the very terms of the contract (e). We have seen, that equity will decree a specific performance of a covenant (in a marriage settlement) to surrender copyholds, in favor of the persons claim- ing within the consideration of the instrument ; but not for the benefit of a mere volunteer (f) ; and where there is evidence of intention, a party may have a specific performance of a covenant for per- petual renewal (g) ; an execution in specie of a covenant for further assurance will also be de- creed (h). (d) Whitmel v. Farrel, 1 Ves. (/) Ante, p. 153. 256. (g) Ante, p. 248. (e) Davis v. Hone, 2 Scho. & (/t) Ante, p. 353. Lef. 341. 347. 158 Of Relief in Equity. [PartV. The court, however, will not entertain a bill for a specific performance of contracts of every descrip- tion. It is only where the legal remedy is inade- quate or defective, that equity interferes. In Er- rington v. Aynesly (J), Lord Kenyon said : " a specific performance is only decreed where the party wants the thing in specie, and cannot have it any other way." But although courts of equity have not in every instance confined themselves within this line, yet, this being the principle, they will not deviate from it, further than they are bound from deference to precedents and authority. Thus, a memorandum was indorsed on a lease granted to one Clutton, that it should be lawful for him to break up or dig for gravel any part of the land ; and he covenanted to pay 20/. for every acre he should so break up or dig, and to make good the same at or before the expiration of the term. A lease was then granted to the plaintiff, to commence at the expira- tion of Clutton's in 1799, which contained a cove- nant, that the premises should be in the same state and condition as Clutton had covenanted to leave and yield up the same. A bill was filed praying that the defendants might be decreed specifically to perform and carry into execution the grant, cove- nants, and agreements, made with the plaintiff by the said indenture ; and that they might be ordered to put the plaintiff in possession of the piece of ground so demised to him, in such state and condi- tion as Clutton, his executors, &c, ought to have made good the same. But the court dismissed the (i) 2 Bro. C. C. 341. Chap. II.] For the Covenantee « r >59 bill, considering that complete justice could be done at law ; the matter in controversy being nothing more, than the sum it would cost to put the ground in the condition in which by the covenant it ought to be (A). Nor will the court decree a specific execution in every case where it will not set aside the contract ; nor, on the other hand, will it set aside every con- tract that it will not specifically perform (I) ; but will leave the party to make what he can of it at law : and there is another class of cases, in which the court refusing to carry the agreement into exe- cution, would not stand neuter, but would order it to be delivered up (m). Already have we noticed, in a more detailed man- ner, that a specific execution will not be ordered of a covenant for reference to arbitration («) ; nor, it seems, of a covenant by a husband that his wife shall levy a fine (o) ; nor of a covenant to repair (p) ; to build (q) ; or to lay out a certain sum in building (/*) ; unless the transaction and agreement be in their na- ture defined (£) ; as, to build a house so as to cor- respond in its elevation with the adjoining houses already built (/) ; nor will the court, in general, en- tertain a bill for a specific performance of contracts for chattels, or which relate to merchandize ; but (k) Flint v. Brandon, 8 Ves. (o) Ante, p. 165, et seq. 159. (p) Ante, p. 293. (t) Mortlock v. Buller, 10 Ves. (g) Ante, p. 297. 292. (r) Ibid. (ro) Willan v. Willan, 16 Ves. (s) Ibid. 83. (0 Ante, p. 298. («) Ante, p. 148. 5G0 Of Relief in Equity . [Part V. will leave the parties to law, where the remedy is much more expeditious (V), as in the case of a cove- nant to transfer stock (v) ; although, indeed, there is a solitary instance of such a covenant having been enforced (w). Nor will the court compel a rector to resign his living in favor of a plaintiff, in pursuance of a covenant to that effect, which the rector entered into upon being presented ; for although the right of presentation is mere matter of property, the actual possession is not ; but depends on the discretion of the ordinary ; and the court not being able to exer- cise any jurisdiction over the ordinary, or enter into those considerations which may induce him to refuse the surrender of the defendant, or the presentation of the plaintiff ; and having no means of determining the plaintiff's fitness for the living, or of securing his possession of it ; the parties must be left to seek redress in a court of law(.r). Nor will it enforce specific performance of an agreement to take a lease of a house, being one of six originally demised at a ground rent of 10/., with a proviso for re-entry on non-performance of any of the covenants contained in the original lease, notwithstanding an offer by the plaintiff to indemnify the defendant in case of evic- tion ; for if the covenants in the first lease, though well observed with respect to this particular house, were to be broken as to any other of the five houses, (u) Buxton v. Lister, 3 Atk. brown v. Thornton, 10 Ves. 161. 383. O) 10 Ves. 161. And sec (v) Cud v. Rutter, 1 P. Wms. Dolaret v. Rothschild, 1 Sim. & 570; S.C. 2 Eq. Ca. Ab. 18. Stu. 590. pi. 8 ; S. C. nom. Scould v. But- (x) Newdigate v. Helps, (> ter, Cited Prec. Ch. 534. Nut- Madd. 133. Chap. II. J For the Covenantee. 561 the original lessors would be entitled to re-enter on the whole property (j/). Whether it will compel the performance of a contract for the purchase of a subject matter, of which the good-will of a public- house, unconnected with any fixed interest in the premises, forms the principal part, is not settled (z). And when from the circumstances it is doubtful whether the party meant to contract to the extent to which he is sought to be charged, equity will refuse to enforce a specific performance. Therefore, where Y., tenant for life, with power to lease for twenty one years at the best improved rent, made a lease to H., and thereby covenanted, " for the term of his life to renew the said lease to H., his executors, adminis- trators, and assigns, by giving them a lease for twenty one years when applied to ;" and H. surrendered the lease, under a clause empowering him to do so ; and afterwards, upon a new agreement, Y. indorsed on the old lease, " I promise and agree to perfect a fresh lease to H. at any time he shall demand the same, at 5/. a year less than the within-mentioned rent ; specific performance was refused, it being un- certain whether the contract extended to a future lease ; and the contract being by a person having a limited interest, with a leasing power, to act in fraud of that power(ff). Though a party has only an equitable title to an estate, the court will decree against him a specific performance of covenants equally as if he had the {y) Fildesv. Hooker, 3 Madcl. (a) Hamettv.Yeilding,2Scho. 193. & Lef. 549. .554. (z) Coslakev.Till,lRuss.376. o o 56'2 Of Relief in Equity. [Part V. legal title, by directing him to procure the trustees to join in the conveyance (b). And on a bill for a specific performance of a covenant with A. for the benefit of B., A. must be a party to the suit (c). 2. By way of The power of a court of equity extends not only injunction to r . . restrain to enforce an actual execution of a covenant in favor breach. f the covenantee, but also to obviate a threatened wrong, or to prohibit a party from continuing the commission of an injury. We may conceive num- berless cases of covenants broken, in which the re- covery of damages at law, however large in amount, would never be a compensation to the party ag- grieved. Hence has arisen the system of preventive justice, so advantageously administered by equity, by means of injunctions to restrain breaches of cove- nant. Applications for injunctions of this kind are of common occurrence, particularly on grants of farming leases. In one case, a lease contained co- venants not to convert any meadow-land, and all the other usual covenants in a lease of a farm, show- ing clearly the nature of the lease for the purpose of tillage as a farm ; and Lord Eldon granted an injunc- tion till appearance and further order, to restrain the defendant, a tenant to the plaintiff, from breaking up meadow for the purpose of building, contrary to the covenants of his lease ; observing, that he did so upon the ground of the covenant not to convert any meadow; otherwise he should doubt, whether it (b) Crop v. Norton, Barnard. (c) Cooke v. Cooke, 2 Vern. Chan. 179; S. C. 2 Atk. 74 ; 9 36 ; S. C. 1 Eq. Ca. Ab. 73. Mod. 233. And see Cornbury v. pi. 8. Middleton, 1 Ch. Ca. 211. Chap. II.] For the Covenantee. 5G3 would do upon the ground of waste, without any affidavit that it was ancient meadow (d). At a later period, however, he granted an injunction to restrain a tenant from committing waste by ploughing up pas- ture land, although there was no express covenant not to convert pasture into arable ; thinking that a covenant, contained in the lease, to manage pasture in a husbandlike manner, was equivalent to it(e). An injunction will also be awarded to restrain a lessee from pulling down, damaging, or destroying, con- trary to his covenant, any of the buildings ; and from cutting down, injuring, or destroying any of the trees, bark, wood, underwood, hedges, or fences; and from sowing any part of the farm with mustard seed, or any other pernicious crop ; and from re- moving from off the farm any of the hay or straw, dung or manure produced or made thereon (/). And if a tenant, defending an ejectment brought by his landlord, makes default at the trial, and makes use of the interval to do all the mischief he can, by breaches of covenant, and wilful waste, an injunction will be granted on motion, or in the vacation on petition : it is otherwise if an ejectment has not been brought (if). But if a tenant covenants not tp plough pasture ; and if he should, to pay at the rate of 20*. an acre per annum, the court will refuse an injunction, as the damage has been settled between the parties themselves, and a price set for ploughing; nor, on the other hand, will the court (d) Lord Grey de Wilton v. (/) Prattv. Brett, 2 Madd. 62. Saxon, 6 Ves. 106. Kimpton v. Eve, 2 Ves. & B. 349. (e) Drury v. Molins, 6 Ves. (g) Lathropp v. Marsh, 5 Ves. 328. 259. o o 2 m Of Relief in Equity. [Part V. assist the defendant coming for relief against such payment (//). The court will grant an injunction to restrain a breach of covenant not to carry on certain trades, secured by a forfeiture of the lease and pe- nalty^). And in Ward v. Duke of Buckingham, in the House of Lords, upon a lease of alum works, with a covenant by the lessee to leave stock of a certain amount upon the premises, there was a fair ground of suspicion that he did not mean to per- form his covenant in that respect ; and the court said, though there might be compensation in da- mages, it had (k) relation to that sort of enjoyment, for which the landlord had stipulated after the expi- ration of the term ; and a sort of decree quia timet was made, and affirmed in the House of Lords (/). But where a person, being lessee of certain water- works, and also owner in fee of a messuage and well adjoining, sold the messuage and well, and received from the vendee a covenant that he would not sell or dispose of water from the well, to the injury of the proprietors of the said water- works, their heirs, exe- cutors, administrators, and assigns ; an injunction to restrain a breach of the covenant was refused, as the court, under such an agreement, would have to try, in each instance, whether the act of selling the spe- cified quantity of water was a prejudice to the pro- prietors of the water-works (in). In like manner, (h) Woodward v. Gyles, 2 be wanting ; query ? Vern. 119. (I) Nutbrown v. Thornton, 10 (i) Barret v. Blagrave, 5 Ves. Ves. 161. -555. (ni) Collins v. Plumb, 16 Ves. (k) The word not appears to 454. Chap. II.] For the Covenantor. 565 where there was a lease from the dean and chapter of Winchester, with a covenant not to make sale of, or take any timber trees growing- or to grow on a certain part of the premises, save for the necessary building or repairing of their cathedral church, or of the church buildings thereto belonging, and a bill was filed by the lessee to restrain the dean and chapter from selling or cutting, except for the purposes aforesaid ; an injunc- tion, obtained on riling the bill, was dissolved on the coining in of the answer, stating that the whole of the timber was wanted for the purpose of repairs ; the covenant not extending to deprive them of the right which they might have exercised independently of it(*> SECT. II. OF RELIEF IN EQUITY FOR THE COVENANTOR. The origin of the doctrine of relief against for- By way of feiture by breach of covenants in a lease, is to be forfeiture" 8 attributed to those cases, in which relief was given with reference to non-payment of money at the specified time ; the court holding, that by the pay- ment of interest the party was put in just the same state as if the principal had been paid at the time stipulated (o). This relief was so freely adminis- tered in favour of persons who had forfeited their (n) Wither v. Dean and Chap- (o) Reynolds v. Pitt, 19 Vcs. ter of Winchester, 3 Meriv. 421. MO. 566 Of Relief in Equity. [Part V. leases by non-payment of rent at the appointed period, and at times so remote from the lessor's recovery in ejectment, that it became necessary to have the interference of the legislature, to confine within reasonable limits a rule which operated so materially to the prejudice of landlords. It was therefore enacted (/>), that in case the lessees should suffer judgment to be had in ejectment, and execution executed thereon, without paying their rent and arrears and full costs, and without filing any bill for relief in equity within six calendar months after such execution executed, then the les- sees should be barred from relief in law or equity, other than by writ of error for reversal of such judg- ment, if erroneous, and that the lessor should thence- forth hold the premises discharged from such lease. But the relief granted in this case will not preclude the landlord from prosecuting an ejectment for breaches of other covenants contained in the lease, against which relief cannot be had. And the Lord Chan- cellor recently {q) refused an injunction against a verdict in ejectment, upon a breach of covenant by lessee for years as to the mode of cultivation, (admit- ting that relief might be had after breach of such a covenant,) the defendant having been prevented from proving other breaches (r), against which no relief could be had. It appears, also, that the court will relieve, under some special circumstances, where (p) 4 Geo. II. c. 28. s.2. And v. West, 12 Ves. 475. see ante, p. 205. (r) The judge having decided, (q) Lovat v. Lord Ranelagh, that as one breach was proved, it 3 Ves. & B. 24. And see Davis was unnecessary to go into others. Chap. II.] For the Covenantor. 567 the party has broken a covenant to repair (s). But on a breach of a covenant to insure (t), or not to as- sign without license (w), the court has universally refused to interpose for the benefit of the cove- nantor. (s) Ante, p. 299. (u) Ante, p. 429. (0 Ante, p. 192. PART THE SIXTH. OF COVENANTS VOID IN THEIR CREATION; AND OF THE MEANS BY WHICH COVENANTS ORIGINALLY VALID MAY BE DISCHARGED OR SUSPENDED. CHAPTER THE FIRST. OF COVENANTS VOID IN THEIR CREATION I. Of cove- nants void at common law. 1. With re- ference to the inca- pacity of the contracting parties. SECT. I. OF COVENANTS VOID AT COMMON LAW. The invalidity of a covenant may arise from many causes. In the first place, where the parties have no legal capacity to contract, their covenant is void ab initio; nor can any subsequent act of confirmation impart effect to that which never had a legal exist- ence (a). Idiots, infants, lunatics, and other persons labouring under various disabilities before noticed (b), are totally disqualified from binding themselves by covenant. 2. With re- At common law, every covenant is invalid which iGrcncti to theobjectof, nas wr ^ s object the performance of an act malum or consider- ; /2 se% if one covenants to kill or rob a man, or ationfor, the covenant. commit a breach 01 the peace, or the like, such a (a) Ludford v. Barber, 1 Term Rep. 86. (b) Ante, p. 107, et seq. Chap. I.] Of Covenants void at Common Lair. 569 covenant is absolutely illegal (c). So, covenants founded in fraud (d), or in violation of the precepts of religion, or morality, or the laws of public de- cency, are void in their creation. Accordingly, a mutual covenant between a man and woman for future cohabitation, or the continuance of an illicit intercourse, is perfectly futile both at law and in equity (e) ; and generally speaking, where the mat- ter being in a condition would invalidate the con- dition as against law, there being in a covenant, it will in like manner render the covenant nugatory. And if the thing engaged to be done, is in the nature of it impossible ; as if a man undertakes to go to Rome in three hours, a covenant for its performance is also void(/). And so, on the same ground, is a covenant by a man to make a feoffment to his wife(g). But to make the covenant nugatory, the impossibility must exist at the time of its creation ; for if the execution of the duty stipulated for be possible at the time, but afterwards in consequence of ad- ventitious circumstances become impossible, the covenantor will still be liable on his express cove- nant (//) ; unless perhaps the performance of the covenant be rendered impossible by the act of (c) Shep. Touch. 163. Co. Stu. 61 ; S. C. 2 Ibid. 260. Lit. 206, b. Atkinson v. Ritchie, Priest v. Parrot, 2 Ves. 160. 10 East, 534, 5. (/) Co. Lit. 206, b. Shep. (d) Waldo v. Martin, 4 Barn. Touch. 164. &Cres.319; S.C. 6 Dow. & Ry. (g) Shep. Touch. 164. 364; 2 Carr. & P. 1. (h) Shubrick v. Sahnond, 3 (e) Franco v. Bolton, 3 Ves. Burr. 1637. Atkinson v. Rit- 371. Gray v. Mathias, 5 Ves. chie, 10 East, 530. 286. Knyc v. Moore, 1 Sim. & 570 Of Covenants void in their Creation. [Part VI. God, as in one or two instances noticed hereafter ; or be rendered impossible by the covenantee himself; as in a case where a man covenanted with B. that C. should marry Jane on a certain day, and before that day B. married her himself; here the covenant was held to be discharged, because by the cove- nantee's means it could not be performed (i). But a covenant, if within the range of possibility, will be upheld, however absurd or improbable the event may be ; as where one covenants that it shall rain to-morrow, or that the Pope shall be at Westmins- ter on such a day (A). And if a covenant be in part against the common law, and in part good, it will be upheld as to that part which is good (/). Such covenants also as are opposed to public policy cannot be supported. Covenants in restraint of marriage are of this description : but there is a great deal of difference between promising to marry a particular person, and promising not to marry any one else. One contract of this nature under hand and seal ran thus : " I do hereby promise Mrs. Ca- tharine Lowe, that I will not marry any person be- sides herself ; If 1 do, I agree to pay to the said Ca- tharine Lowe 1000/. within three months next after I shall marry any body else." In this case there was not the least ground to say that the man had en- gaged to marry the woman ; much less did any thing appear of her engaging to marry him ; therefore it was only a restraint upon his marriage with any other than the plaintiff; not a reciprocal engage- (t) Co. Lit. 206, b. 2 Mod. (7) Pigot's case, 11 Co. 27, b. 28. Ley, 79. 8 East, 236. 1 Vent. ik) Rol. Ab. Condition, (D). 237. Chap. I.] At Common Law. 571 ment to marry each other, or any thing like it ; and the covenant was declared to be illegal and void (m). So all contracts are void which have for their ob- ject a general restraint of trade, whether they be by bond, covenant, or promise, and whether the agree- ment be made with or without consideration, and whether it be of the party's own trade or not (//). Hence, a covenant not to trade in any part of En- gland, though with consideration, is void ; because it can never be useful to any man to restrain ano- ther from trading thus, unless the party intends to secure to himself a monopoly, which the law will not allow (0). But although general restraints of trade are prohibited, effect will be given to cove- nants restraining trade within particular limits ; the «S£- (m) Lowe v. Peers, 4 Burr. 222.5; S. C. Wilmot, 364. Cock v. Richards, 10 Ves. 429. Baker v. White, 2 Vein. 215; S. C. 1 Eq. Ca. Ab. 89. pi. 7. («) Prugnell v. Gosse, Al. 67. Mitchel v. Reynolds, 1 P. Wins. 181. 186; S. C. 10 Mod. 27. 85. 130; Fortesc. 296. Chesman v. Nainby, 2 Stra. 739 ; S. C. 2 Ld. Raym. 1456 ; Fort. 297 ; 3 Bro. P. C. 349 ; 1 Bro. P. C. 234, Toml. ed. Gale v. Reed, 8 East, 80. (0) 1 P. Wms. 193. Homer v. Ashford, 3 Bing. 322 ; S. C. 1 1 J. B. Mo. 91. No judge carried his abhorrence of these restraints so far as is reported of Hull, J. in the year-book, 2 Hen. V. fol. 5. pi. 26. There a dyer was bound that he should not use his craft, for two years, and Hull held that the bond was against the common law, " and by G — d, (said he) if the plaintiff were here, he should go to prison till he had paid a fine to the King." In Mitchel v. Reynolds, 1 P. Wms. 181, Parker, C. J., in his admirable exposition of the laws on this sub- ject, excuses the transport of Mr. Justice Hull's indignation, on the ground that it was excited by a case of most gross fraud and vil- lany. 1 Sim. & Stu. 77. n. 572 Of Covenants void in their Creation. [Part VI. bills of mortality for instance (/>). And in partner- ship engagements, a covenant that the partners shall not carry on for their private benefit that particular commercial concern in which they are jointly en- gaged, is not only permitted, but is the constant course (//). So, a covenant with the proprietors of a theatre not to write dramatic pieces for other theatres was held legal (/*). And a covenant by a dyer, on a sale of the good-will of his business, and of a secret in dying, restraining himself generally from using that secret, has been upheld (s). Thus also, a con- tract entered into by a practising attorney to relin- quish his business, and to recommend his clients to two other attorneys, and to refrain from practising in such business within 150 miles of London, was sanctioned by the Court of King's Bench (J). But where certain articles, under which A. had served his clerkship to an attorney, contained a proviso that A. should not practise within a certain district; and also a covenant on the part of his father, that A. should, within a month after he came of age, execute a bond in a specified penalty to ensure his fulfil- ment of the proviso ; and A., who was an infant at the time of the execution of the articles, served under them for three years after he attained his full age, but was never called on to execute any bond, and, with a knowledge of the purport of the articles, (p) Clerk v. Crow, 2 Barnard. Sim. & Stu. 74. See also Green 463. v. Folgham, Ibid. 398, as to the (q) Morris v. Coleman, 18 Ves. sale of a secret of trade. 437. (t) Bunn v. Guy, 4 East, 190 ; (r) Ibid. S. C. 1 Smith, J. Davis y.Ma- ($) Bryson v. Whitehead, 1 son, 5 Term Rep. 118. Chap. I.] At Common Law. 573 completed his clerkship, and afterwards began to practise as an attorney within the district from which the articles purported to exclude him ; a motion for an injunction to restrain him from practising within that district was refused with costs (u). In like manner, covenants having for their object the encouragement of litigation, or the prevention of justice, are not lawful ; although persons having a common interest may agree to unite in a defence ; but then the agreement must not go beyond the common object. An agreement, therefore, by several owners and occupiers of land in a parish, to concur in defending any suits that should be commenced against any of them by the present or any future rector for the tithes of articles covered by certain specified moduses, or any other moduses ; and bind- ing themselves not to compromise or settle, and not limited to their continuance in the parish, or to any particular time, is illegal ; as it might operate mate- rially to impede the course of justice, if persons uniting in this manner against an individual, could carry it beyond the immediate purpose in which they are jointly interested (#). Covenants may also be void when considered with 3. With re- reference to the instrument in which they are con- the deed or tained, or the estate on which they depend. When- estate on ii- ■ i • it i i i which they ever a deed is void, ail the covenants dependent on depend. the interest professed to be conveyed by that deed are also void (3/) ; for if no estate passes by the (it) Capes v. Hutton, 2 Russ. (a-) Stone v. Yea, Jac. 426. 357. (y) Soprani v. Skurro, Yelv. IS. 574 Of Covenants void in their Creation. [Part VI. deed, the covenant relating to, and dependent on the estate purported to be passed, must necessarily fail of effect. Hence, an assignee of a lease cannot take advantage of a covenant for quiet enjoyment contained in the original demise, where the estate was determined by the lessor, being tenant in tail, dying without issue, before the assignment : the assignment could have no operation, as the person who made it had no interest in the premises (z). And for the same reason, a lessee professing to as- sign over a term which in fact had no existence, is not liable at the suit of a subsequent assignee on a covenant for quiet enjoyment (a). The rule prevails also where a lease is void for uncertainty ; therefore, where one possessed of a term for years granted so. much of the term as should be unexpired at the time of his death, and the grantee assigned, and covenanted with the assignee for quiet enjoyment; it vras held, that the want of certainty annulled the original lease, that the covenant could not subsist without an estate, and as no estate passed, the assignee could not maintain an action (£). And here may be noticed, that a lease for seven, fourteen, or twenty- one years, as the lessee shall think proper, is not void for uncertainty : as a lease for seven years, it un- doubtedly is goody whatever may be the validity of it (z) Andrew v. Pearce, 1 New The Dean and Chapter of Nor- Rep. 158. wich, Ow. 136 ; S.C.nom. Wal- (et) Noke v. Awder, Cro. Eliz. ter v. The Dean and Chapter of 373. 436 ; S. C. Mo. 419. Norwich, Mo. 875 ; S. C. nom. (b) Capenhurst v. Capenhurst, Waters v. The Dean and Chapter Raym. 27 ; S. C. 1 Lev. 45 ; 1 of Norwich, 2 Brownl. & Gold. Keb. 130. 164. 183. Waller v. 158. Chap. I.] At Common Law. as to the two other eventual terms ; and if the breach be assigned for non-payment of rent incurred within the first seven years, the plaintiff is entitled to re- cover (c). So, on the other hand, a covenant for payment of rent, the rent being an equivalent returned for the in- terest enjoyed, cannot be enforced, where no estate passes under the lease ; as if an attorney grants a lease for another in his own, instead of the name of his principal (d); or if the committee of a lunatic, having no legal authority for that purpose, makes leases in his own name (e) ; or if the lessor (supposing him competent to demise) has no interest in the pre- mises {/) ; and the same result ensues, whether the lease is void at common law or annulled by sta- tute (g). The exemption of a covenantor from the performance of his covenant connected with the estate was further admitted in a very late case. A license was granted for a term of years to continue a channel open through the bank of a navigation, in order that the waste water might pass through the channel to the mills of the grantee, on his paying a certain annual sum ; and he covenanted to make such payments ; but inasmuch as it appeared at the trial that the grantors had not any legal or equitable (c) Ferguson v. Cornish, 2 780. Burr. 1032. Goodright dem. (e) Knipe v. Palmer, 2 Wils. Hall v. Richardson, 3 Term Rep. 1 30. 462. (/) Aylet v. Williams, 3 Lev. (d) Frontin v. Small, 2 Lord 193. Raym. 1418 ; S. C. 2 Stra. 705. ($Q Of Covenants void in their Creation. [Part VI. clearly void by the statute 46 Geo. 3. c. 65. s. 115., but the court did not think it so interwoven with the covenant for the payment of the principal or interest as necessarily to form part of the same covenant (t). And in the same manner, though the bill of sale for transferring the property in a ship by way of mortgage be void, as such, for default of reciting the certificate of registry therein, as required by the statute 26 Geo. 3. c. 60. s. 17., still the mortgagor may be sued upon his personal covenant contained in the same instrument for the repayment of the money lent (m). And again, where there was a de- mise of lands in the Bedford Level, Mr. Justice Bayley felt disposed to hold the lessee liable on his covenant to repair, as an independent covenant, al- though the lease had not been registered pursuant to the statute 15 Car. 2. c. 17. s.8. ; the learned judge, however, did not think it necessary to decide the point (w). (t) Wigg v. Shuttleworth, 13 («) Kerrison y. Cole, 8 East, East, 87. Howe v. Synge, 15 231. Biddell v. Leeder, 1 Barn. East, 440. Readshaw v. Balders, & Cres. 327; S. C. 2 Dow. & 4 Taunt. 57. Fuller v. Abbott, Ry. 499. Ibid. 105. Buxton v. Monk- (w) Hodson v. Sharpe, 10 house, Coop. 41. East, 350, 4. Chap. 1.] By Statute. ^i SECT. II. OF COVENANTS VOID BY STATUTE. All covenants entered into for the purpose of evad- It of cove- ing or contravening the provisions of legislative enact- n ants void ments are likewise void. To enter into a detailed statement of the several acts of parliament by which certain covenants are vacated, would be an almost endless labour ; it would, in fact, amount to an enu- meration of the majority of the prohibitory acts con- tained in our statute books, and this without con- ferring a corresponding benefit on the reader. By way of example, the note (&) below comprises some general titles showing a few occasions on which the legislature has interposed its authority, to defeat such injurious contracts as did not come within the reach and jurisdiction of the courts of common law. (x) Acts of parliament have at Sales of Offices different times been passed to Simony an n id- covenants relating (among Smuggling other things) to Stockjobbing Bribery Usury Gaming Wagers Illegal Insurances &C. &c. &c. Lotteries CHAPTER THE SECOND. OF THE MEANS BY WHICH COVENANTS ORIGINALLY VALID MAY BE DISCHARGED OR SUSPENDED. SECT. I. BY THE ACT OF GOD. I. By the The rule laid down in the case of Paradine v. act of God. j aiie ^^ nas often been recognised in courts of law as a sound one ; i. e. when a party by his own con- tract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract (b) : therefore, if a lessee covenants to repair, the circum- stance of the premises being consumed by lightning, or thrown down by an extraordinary flood of water, or overturned by an irresistible wind, will not effect his discharge (c). But where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him, as in the case of waste, where the house is destroyed by a tempest. In some cases where the act of God renders perform- ance absolutely impossible, the covenantor shall be discharged ; quia impotentia excusat legem ; as if a (a) Al. 27. ( C ) Ante, p. 274, 5. (b) 10 East, 533, 4. Chap. II.] By the Act of God. 583 lessee covenants to leave a wood in as good plight as the wood was at the time of the lease, and afterwards the trees are blown down by tempest (//) : or if one covenants to serve another for seven years, and he dies before the expiration of the seven years, the covenant is discharged, because the act of God de- feats the possibility of performance (e). And so, it seems, if a man covenants to deliver a horse to an- other on request, the death of the horse, being the act of God, will relieve the man from the penalties of non-performance (/). It is laid down in Rolle's Abridgment ( g), that if a man covenants to build a house before such a day, and afterwards the plague is there before the day, and continues there till after the day, this shall ex- cuse him from the breach of the covenant for not doing thereof before the day ; for the law will not compel him to venture his life for it ; but he may do it after. And Sheppard (h) says, that it must be done in convenient time afterwards, for otherwise the covenant will be broken. But it may be doubted whether this position is law at the present day ; in- deed, the principle of it has been much shaken by a late case (i), where the charterer of a ship, who cove- nanted to send a cargo alongside at a foreign port, (d) 40 Edw. III. 6. Perk. pi. Palm. 548. 738. (g) Lawrence v.Twentiman, 1 (e) Shep. Touch. 180. And Rol. Ab. Condition, (G). pi. 10. see Nash v. Aston, Skin. 42; (//.) Shep. Touch. 174. S. C. Sir T. Jo. 195. (i) Barker v. Hodgson, 3 Man. (/) Williams v. Lloyd, W. Jo. & Selw. 267. 179; S. C. nom. Willamsv.Hidc, °^4 How Covenants (Uncharged or suspended. [Part VI. was not excused from sending it alongside, though, in consequence of the prevalence of an infectious disorder at the port, all public intercourse was pro- hibited by the law at the port ; and though he could not have communication without danger of contract- ing and imparting the disease ; and Lord Ellenbo- rough observed, " Perhaps it is too much to say that the freighter was compellable to load his cargo ; but if he was unable to do the thing, was he not an- swerable for it upon his covenant ? The question is, on which side the burthen is to fall ? " So that this subsequent determination appears to impeach most materially the doctrine advanced in Rolle's Abridg- ment. And this decision is in accordance with one of rather earlier date. The master of a ship cove- nanted that he would, directly as wind and weather would permit, after the discharge of his outward bound cargo at Madeira, sail and proceed toWinyaw in South Carolina, or as near thereto as he could get, and stay there forty running days, and load his ship with such rice, &c. as the plaintiff's agents should tender to be laden ; but by reason of con- trary winds and bad weather the defendant was pre- vented from proceeding to Winyaw ; yet the whole court held, that this circumstance did not excuse the performance of his express covenant, and gave judg- ment for the plaintiff (A*). So, likewise, if a man covenants to deliver goods at London, the overturn- ing of the boat by tempest will not excuse him (/). (k) Shubrick v. Salmond, 3 son v. Miles, Rol. Ab. Condition, Burr. 1637. (G). pi. 9. Danv. Ab. Condition, (0 7 Term Rep. 384. Tomp- (G). pi. 9. Chap. II.] % the Act of Law. 585 SECT. II. BY THE ACT OF LAW. We have seen(w) that whenever a deed is void, all 1. By com- the covenants dependent on the interest professed to mon aw * be conveyed by that deed are also void. And generally where the covenant is dependent on the interest enjoyed, a future destruction of that interest will have the effect of defeating the covenant : for instance, if lessee for years covenants to repair, and yield up at the end of the term, an eviction by elder title absolves him from the agreement ; for the land being gone the covenant is annulled (n). So, if the interest determines by the death of the grantor, being tenant for life (o). The like, if he covenants to pay rent, and the lease is extended for the king's debt Q»). In like manner, if tenant for term of years leases for a less term, and assign his reversion, and the as- signee takes a conveyance of the fee, by which his former reversionary interest is merged, the covenants incident to that reversionary interest are thereby extinguished (y). A covenant may likewise become extinguished by the death of the covenantor leaving the covenantee his heir (r). But where the covenant (m) Ante, p. 573. (q) Webb v. Russell, 3 Term (n) Andrews v. Needham, Noy, Rep. 393. Thre'rv. Barton, Mo. 75 ; S. C. Cro. Eliz. 656. 94. Chaworth v. Phillips, Mo. (o) Brudnell v. Roberts, 2 876. Soprani v. Skurro, Yelv. Wils. 143. Ludford v. Barber, 19. 1 Term Rep. $6.p/> (r) Mudge v. Mudge, Com. (p) Peckam's case, Saw 132. 333. 586 How Covenants discharged or suspended. [Part VI. is totally collateral to the reversioners interest, a surrender will not discharge the obligation. This difference is easily explained. A. leased to M. for ten years, and M. covenanted to leave four acres of the land fallowed and ploughed at the end of the term ; with a proviso enabling the lessee, if he should dis- like his bargain, to surrender his estate, upon giving a year's warning. M. afterwards surrendered ac- cordingly, but did not leave any part of the land fallowed ; and it was adjudged by the court, that the acceptance of the surrender had not dispensed with the covenant ; but it had been otherwise, if the lessee had engaged to leave the four acres ploughed at the end of the ten years ; for then the acceptance of the surrender by the lessor before the expiration of the ten years would have made it impossible for the lessee to perform the covenant (.?). If two persons, one being an infant, covenant jointly and severally with a third, the incompetency of the minor cannot be taken advantage of by his co- covenantor to discharge himself of his own liability (t). So, if an infant and a person capable of covenanting enter into a mutual contract, the covenant of the latter is not avoided by the invalidity of the infant's (u). And if two covenant for the execution of any duty, to build a house for example, and one suffers judg- ment by default, or confesses judgment, and the other proves performance, and has a verdict in his (s) Austin v. Moyle, Noy, 118. (u) Fameham v. Atkins, 1 Sid, (0 Haw v. Ogle, 4 Taunt. 10. 446. Chap. II.] By the Act of Law. 587 favor, no judgment or writ of inquiry of damages can be had against him against whom judgment went by default ; because, although in trespass one may be guilty and the other not, yet in a joint contract the one cannot be convicted without the other (v). By once recovering damages for a breach, where the covenant is to do an act of solitary performance, as to repair a house by such a time, the covenant is extinct, and the covenantor relieved from further re- sponsibility on account thereof (w). And we may remark, that the outlawry of the plain- tiff is a good plea in bar to an action of covenant by him for a sum certain, or for rent, on account of the previous forfeiture of such sum or rent to the crown ; but not to an action in which uncertain damages only are to be recovered, as in the case of a breach of covenant to repair ; because the damages in such case are no more forfeitable than damages for a bat- tery or a trespass before they are recovered. Be- fore imparlance, however, the outlawry may be pleaded in abatement of the writ, even where uncer- tain damages are sought (.r). This difference is established with regard to the 2. By statute, question whether a covenant is repealed by act of parliament : if a man covenants not to do a thing which it was lawful for him to do, and an act of parliament (v) Porter v. Harris, 1 Lev. 63 ; 398 ; S. C. 2 Marsh. 20 1 . S. C. nom. Boulter v. Ford and (w) Anon. 3 Leon. 51. pi. 72. Harris, 1 Sid. 76 ; 1 Keb. 284. (*) Clarke v. Scroggs, Lutw. Morgan v. Edwards, 6 Taunt. 486. Nels. fol, ed. 588 How Covenants discharged or suspended. [Part VI. after compels him to do it, the statute repeals the covenant : so it is, where he covenants to do a thing which is lawful, and a subsequent act hinders him from doing it : but if one covenants not to do a thing, which was then unlawful, and an act comes and makes it lawful, such act of parliament does not repeal the covenant (?/). But if he cove- nants to do a thing which was then unlawful, and a subsequent statute legalizes the act, such statute does not repeal the covenant (z). In one case (a), an opinion was entertained by all the court, that if the thing to be done was lawful at the time when the party entered into the covenant, though it was after- wards prohibited by act of parliament, yet the cove- nant was binding. The report of the same case by Skinner (b) merely says, that the court seemed strongly for the plaintiff, but concludes with a sed quaere. As a general rule, therefore, it may be laid down, that if the performance of a covenant be ren- dered unlawful by the government of this country, the contract will be dissolved on both sides, and the defendant, inasmuch as he has been thus compelled to abandon his contract, will be excused from the payment of damages for the non-performance of it (c) ; but it is otherwise if the performance be prevented by the prohibition of a foreign country (d). And (y) Brewster v. Kitchel, Holt, (b) By the name of Dean v. 175; S.C. 1 Lord Rayra. 321 ; Tracy, Skin. 161. ISalk. 198; 2 Salk. 615; 3 (c) Barker v. Hodgson, 3 Man. Salk. 340 ; 12 Mod. 166. & Selw. 270. (z) 12 Mod. 169. (d) Ibid. Atkinson v. Ritchie, (a) Brason v. Dean, 3 Mod. 10 East, 534, 5. 39. Chap. II.] % the Act of Law. 589 where one having good title to lands by virtue of a fine, sold the same, and covenanted with the vendee for quiet enjoyment against himself and one P. V., and all claiming under them ; and afterwards an act of parliament, reciting that B. had settled this estate upon C, and that certain persons had unduly pro- cured the said fine from her, avoided the fine, and a claimant under C. entered ; it was decided, that the vendor's covenant was not annulled by the statute ; and reason given was, that the prospect of the fine being defeated, was in all probability the very oc- casion of the covenant (e). Although a rent-charge is executed by the statute of uses (/), which transfers all rights and remedies incident thereunto, together with the possession, to the cestui que use ; yet a covenant for payment made with the grantees to uses is neither transferred nor discharged by the operation of that act (g). We have already (Ji) seen the effect of the bank- rupt and insolvent acts of parliament on the cove- nants of lessees ; and here may be added, that the statute 7 Geo. 1. c. 28., which vested all the estates of the governors and directors of the South Sea Com- pany in certain trustees for raising money thereon, was not considered by the court as a discharge or acquittal of such governors or directors from the co- venants comprised in their leases (z). (e) Lucy v. Levington, 1 Vent. (g) Bascawin v. Cooke, 1 Mod. 175 ; S. C. 2 Lev. 26 ; 2 Keb. 223 ; S. C. 2 Mod. 138. 831. (h) Ante. p. 493. (f) 27 Hen. VIII. c. 10. (i) Hornby v. Houlditch, Andr. 590 How Covenants discharged or suspended. [Part VI. If an agreement cannot by reason of any subse- quent act of parliament, or the like, be performed in the whole, it may be executed in such part, and to such extent, as the law will allow (#). An action of covenant is not affected by the sta- tutes of limitations (/). SECT. III. BY THE ACTS OF THE PARTIES. 1. By the It is not in the power of the covenantor by any act act of the of his own, without the concurrence of the cove- covenantor. . . .... nantee, or the intervention of legislative aid, (as in cases of bankruptcy or insolvency,) to defeat or even qualify his express covenant. If he be a lessee, we have seen (?«) that an assignment of the estate will not relieve him ; and that no exemption ensues even from an outlawry or attainder (ti). An assignee of a lease is responsible on a distinct ground ; he is not the original covenantor ; he takes the estate charged with the covenant only, and, therefore, by parting ^ with the former, he exonerates himself from all li- ability in respect of the latter (o). 40 ; S. C. cited 1 Term Rep. 92 ; (Z) Ante, p. 547. with the judgment at length in (m) Ante, p. 491. the note, p. 93. (») Ante, p. 113, 14. (k) Gr. and Rud. of Law and (o) Ante, p. 493, 4. Eq. 76. pi. 6. Chap. II.] By the Acts of the Parties. 591 The covenantee, however, by various acts, may 2, By the relieve the covenantor from the duty of observing- act ° l t e J & covenantee. his engagement. The most simple is an actual re- lease ; and as it is a rule of law that matters con- tracted for by deed can only be dissolved by deed, it follows, that the performance of a covenant cannot be dispensed with by a subsequent parol agree- ment Q»). Therefore, where one covenanted to pay a sum of money, and to an action for non-payment he pleaded a discharge in the nature of a release, without deed, in satisfaction of all demands, the plea was held bad, for the covenant being by deed could not- be discharged but by an instrument of as high a nature (q). So, where A. covenanted to convey cer- tain lands to B., and in consideration thereof B. covenanted, upon the execution of the conveyance, to pay 1000/., and B. afterwards accepted a rent- charge in lieu of parts of the lands ; it was held, that as the conveyance was a condition precedent, and had not been executed, A. could not recover the money. The parol agreement so substituted, it was said, might be sufficient whereon to found an action of assumpsit, but it could not be the foundation of an action upon a covenant under seal, whereby the parties bound themselves to perform a different con- (p) Fortescuev. Brograve, Sty. White v. Parkin, 12 East, 578. 8. Blake's case, 6 Co. 43, b. ; Thomson v. Brown, 1 J. B. Mo. S. C. nom. Alden v. Blague, Cro. 358 ; S. C. 7 Taunt. 656, over- Jac. 99 ; S. C. nom. Eden v. ruling Hotham v. East India Blake, Noy, 110. 2 Rol. 188. Company, 1 Dougl. 272. Sel- Cook v. Jennings, 7 Term Rep. lers v. Bickford, 1 J. B. Mo. 460. 381. Smith v. Wilson, 8 East, (g) Rogers v. Payne, 2 Wils. 437 ; S. C. 6 Mau. & Selw. 78. 376. 592 How Covenants discharged or suspended. [Part VI. tract (r). So, where a builder covenanted to erect two houses by a certain time, in consideration of which the defendant was to pay him 500/., and the time was afterwards enlarged by parol, and within the latter period the houses were finished ; the court would not allow the plaintiff's claim for com- pensation, in an action of covenant, as the original contract had not been fulfilled, nor sufficiently dis- pensed with (i). It is also to be noticed, that a covenant not broken is releaseable only by special name. A release of all " demands," although a word of extensive import, is no release of a covenant before it is broken (t) ; nor is an unbroken covenant discharged by a release of all "debts, dues, actions, causes of action, bills, obli- gations, and writings obligatory, &c.;" and although a covenant be a writing obligatory, yet that term hath a particular signification, for when we declare per script, obligator iurrif it means no more than a bond (V); and it is moreover clear, that the words " actions and causes of action" will not reach it, because no cause of action arises until the covenant is broken (v). (r) Heard v. Wadham, 1 East, Tothil v. Ingram, 1 Vent. 314. 619. 1 Ld. Raym. 518. 522. (s) Littler v. Holland, 3 Term (m) Carthage v. Manby, 2 Rep. 590. Cordwent v. Hunt, Show. 90. 2 J. B. Mo. 660 ; S. C. 8 Taunt. (v) Hall v. Kirby, 2 Dy. 217, 596. b. ; S. C. Mo. 34 ; 1 And. 8. (t) Hancock v. Field, Cro.Jac. pi. 16. Albany's case, 1 Co. 170. Henn v. Hanson, 1 Lev. 112, b. Hoe v. Marshall, Cro. 99; S. C. ISid. 141. Trevilv. EIiz.579.580; S.C. 5Co. 71, a.; Ingram, 2 Mod. 281 ; S. C. nom. Mo. 469 ; Gouldsb. 166. Chap. II.] By the Acts of the Parties. 593 But by a release of " covenants" the covenant is undoubtedly discharged (iv). And with a view to prevent a multiplicity of actions, the courts have frequently construed express words of covenant to be words of release. Thus, supposing a covenantee, or the obligee of a bond, to covenant never to sue on the covenant or bond, or to agree to save the covenantor or obligor harmless ; such a co- venant would be looked upon in the light of a release ; for if it operated only as a covenant it would produce two actions (.r). It may, therefore, be pleaded in bar to an action against the original obligor or cove- nantor^); although the last covenant be in a deed subsequently executed (z). But this rule applies only to cases where the covenantor and covenantee stand alone (a) ; for a covenant not to sue one of two joint and several obligors will operate simply as a covenant, and not as a release, and cannot be pleaded in bar ; because it is not a release in its nature, but merely by construction to avoid circuity of action (b) ; and as a covenant defeated as to one is defeated as (u?) Reade v. Bullocke, Dy. Angus, Willes, 107 ; S. C. 2 56, b. Hancock v. Field, sup. Com. 568. But see Gawden v. Praund. v. Turner, Fitzgib. 105. Draper, 2 Vent. 217. Johnson Lupart v. Hoblin, 2 Sid. 59. v. Carre, 1 Lev. 152. (x) Lacy v. Kinaston, 1 Lord (a) Lacy v. Kinaston, supra. Raym. 688; S. C. Holt, 178. Hutton v. Eyre, 6 Taunt. 289; 218 ; 2 Salk. 575 ; 3 Salk. 298 ; S. C. 1 Marsh. 603. 12 Mod. 415. 548. Smith v. (b) Ibid. Fitzgerald v. Trant, Maplebeck, 1 Term Rep. 446. or Cragg, 1 1 Mod. 254 ; S. C. (y) Ibid. Holt, 178. 218. 1 Com. 139. Baber v. Palmer, (z) Hodges v. Smith, Cro. 12 Mod. 539. Dean v. New Eliz. 623. Trevett v. Aggas, or hall, 8 Term Rep. 168. Q Q 594 How Covenants discliar gal or suspended. [Part VI. to all, (every defeasance, when the terms upon which it is made are performed, operating as a re- lease,) to impart to the covenant a different effect would be to completely nullify the original engage- ment^'). A distinction, however, has been taken between a covenant perpetual not to sue, which amounts to a release, and a covenant not to sue within a particular time, such as seven years. In the latter case the covenant is not pleadable in bar ; but the defendant must resort for redress to his counter-action (d). Whether a covenant not to sue one of several co-obligors is in equity a release of the rest is undetermined (e). By a voluntary destruction of one of the seals of a deed, where the covenants therein are joint, both the covenantors are discharged from the covenants ; but where they are several, the breaking of one of the seals will invalidate the instrument so far only as concerns him whose seal is torn away (/). As a covenantor, by rendering the performance of his own covenant impossible, commits an immediate breach (g) ; so, on the other hand, he will be dis- (c) Lacy v. Kinaston, supra. Carth. 210; 1 Show. 330. Ambl. Clayton v. Kinaston, 1 Ld. Raym. 250. 419; S.C.2Salk.573; 12 Mod. (c) Hawkshaw v. Parkins, 2 221 . Swanst. 550. But see Lord Ke- (cl) Deuxv. Jefteries,Cro.Eliz. nyon's remark in Dean v. Newhall, 352. Ayliff v. Scrimshire, Holt, 8 Term Rep. 171. 619 ; S. C. 1 Show. 46 ; Carth. (/) Mathewsonv.Lydiate,Cro. 63 ; 2 Salk. 573 ; Anon. Comb. Eliz. 408. 470. 546 ; S. C. 5 Co. 123. See too Carvell, or Carivil, 22, b. ; 2 Rol. 30. v. Edwards, Holt, 546 ; S. C. (g) Main's case, 5 Co. 20, b. ; Chap. II. j By the Acts of the Parties. 595 charged from the obligation, if the party for whose benefit it was made performs any act by which the covenantor is incapacitated to observe his contract. As if A. undertakes that J. S. shall marry a certain woman before such a day, and before that day the covenantee marries her himself (//) ; or covenants to do such an act as the covenantee shall appoint, and the latter refuses to make the appointment (i) ; or if he covenants to find eight men to grind every day at a corn-mill, and the covenantee converts the mill into a horse-mill : these acts will be sufficient to exonerate the covenantor (k). Any positive act of forcible prevention by the covenantee will also release the covenantor ; as if a man covenants with B. to collect his rents in such a town, and B. interrupts him(/); or if a lessee for years covenants to drain the water out of the land ; or to build a house before such a day ; and the les- sor enters before the day and holds the lessee out (in). But the covenants would not be dispensed with by the covenantee's merely forbidding the covenantor to proceed with the drainage or building (n). The omission of the covenantee to do some act necessary on his part to the execution of the cove- S. C. Cro. Eliz. 450. 479. Ford Cro. Jac. 182. v. Tiley, 6 Barn. & Cres. 325. (I) Anon. Keilw. 34, b. (A) Co. Lit. 206. 2 Mod. 28. (m) Carrel v. Read, Cro. Eliz. (0 Studholme v. Mandell, 1 374 ; S. C. Ow. 65 ; S. C. nom. Lord Raym. 279 ; S. C. Lutw. Carith v. Read, Mo. 402. 213. Nels. fol. cd. («) Barker v. Fletwel, Godb. (£) City of London v. Greyme, 69. Q ). And in the case of a covenant in the alternative to dance at the King's Theatre, or at such other places as the plaintiff should appoint, a notice to dance elsewhere is necessary to enable the plaintiff to support an action (q). In like manner, if A. covenants to convey an estate to B. for his life and the lives of two such other per- sons as B. should nominate, and to deliver quiet possession before the Christmas following ; the neg- lect of B. to name the lives is a sufficient excuse for the non-performance of the covenant by A. (•/*). So, (o) Rol. Ab. Condition, (U). Rep. 242. pi. 2. (q) Ibid. (p) Gallini v. Laborie, 5 Term (r) Twyford v. Buntley, Freem. Chap. II.] By the Acts of the Parties. 597 where the defendants covenanted that a ship freighted by them should go and return home within twelve months, the perils of the sea excepted, and the plaintiff's testator (the master) warranted that the ship at her departure should be sufficiently strong, well, and sufficiently furnished with a boat and ne- cessaries, and manned by himself, and eight men and a boy, who, cr as many as should be neces- sary, should at all times convenient be ready to serve with the boat during the voyage, and six of the seamen left the service of the ship ; it was de- termined, that as the neglect of the master to pro- vide other seamen to supply their places disabled the defendants from performing their contract, the same was a good plea in bar to an action by the mas- ter's executor (s). A covenantor, however, may be discharged from performing a part of his covenant without affecting his liability as to the rest : accordingly, if the owner of a ship covenants with A. that he will receive such loading as he shall appoint at W. by such a day, and then go with the first fair wind to X., and there unload and take in other wares ; and A . afterwards dis- charges him of the taking in of the goods at W., but not of the receiving his loading at X ; this discharge of the parcel of the covenant is not any discharge of the residue, for they are several and distinct (t). 121; S. C. nom. Twiford y. 466; S. C. 1 Show. 334. Buckly, Carter,205; 3 Keb. 183. (t) Smith v. Barnes, Rol. Ab. 203. Condition, (G). pi. 8. (s) Wvnne v. Fellowcs, Holt, 598 How Covenants' discharged or suspended. [Part VI. 3. By their With regard to the effect of an intermarriage be- mutuai act : ° ° Intermar- tween the covenantor and covenantee, the following nage. distinctions are to be attended to. If the covenant be made for the payment of a sum of money due, or performance of any other act to be done, in prasenti, or which may become payable, or necessary to be performed, at some period during the coverture, such covenant is extinguished or avoided by the inter- marriage ; but where the covenant cannot from its nature confer a right of action while the coverture lasts, it is not extinguished or avoided ; but during the marriage it is suspended only. The leading case on this subject is Cage v. Acton (u). An action was brought against the defendant, as administratrix of her deceased husband, for an arrear of rent due in the testator's lifetime. The defendant pleaded, that the intestate in his life, in consideration of an in- tended marriage between them, gave her a bond for 2000/., conditioned for the payment of 1000/. within a certain time after his death ; she then averred that the marriage took effect, the death of the intestate, and that he had not left her 1000/., nor had his heirs paid it to her, that she took out administration, that assets to the value of 250/. came to her hands, which she retained in part satisfaction of the money due on the bond. Turton and Gould, Justices, were of opinion, that the debt was not extinguished by the intermarriage ; Mr. Justice Gould taking the above distinctions; and ultimately judgment was given for (?() Cage v. Acton, 1 Lord Ent. 213; S.C. nom. Gage v. Raym. 515; S.C. Holt, 309; Acton, Carth. 511 ; Com. 67. 12 Mod. 288; 1 Salk. 325; til. Chap. II.] By the Acts of the Parties. 599 the defendant against the opinion of L. C.J. Holt. A writ of error was afterwards brought (i>), but it appears, either that the judgment was affirmed, or that the plaintiff in error deserted his writ of error. It is true, that in Vernon there is a dictum by one of the counsel that the bond was released in law by the marriage ; but from what passed in the court, the judgment must have been affirmed, for the Lord Keeper decreed that the bond was a charge on the husband's real estate (w). The authority of the above decision has been since fully established by the case of Milbourn v. Ewart (>). The obligee here assumed the character of plaintiff, and brought an action against the heir at law of her late husband, on a bond for 6,000/. given to her in contemplation of a marriage between her and the obligor, and conditioned for the payment of 3,000/. at the expiration of twelve months after his decease, in case she should be the survivor. The whole court spoke in high terms of commendation of the judg- ment in Cage v. Acton, and held, that the bond being given for the purpose of making a provision for the wife in the event of her surviving the obligor, it would be iniquitous to set it aside on account of the marriage, since it was for the event of the mar- (v) Nom. Acton v. Peirce, 2 Rep. 381. Hayes clem. Foord Vera. 480 ; S. C. Prec. Ch. 237 ; v. Foord, Ibid. 386. Heeding v. 1 Eq. Ca. Ab. 63. pi. 5; 316. Davis, Skin. 409; S. C. nom. pi. 9. Gibbons v. Davics, Comb. 242. (w) Per Grose, J. 5 Term Rep. Lupart v. Hoblin, 2 Sid. 58; 387. Cited 1 Ld. Raym. 51 S. Anon. (x) Milbourn v. Ewart, 5 Term 1 Vent. 344. 600 How Covenants discharged or suspended. [Part VI. riage that the bond was meant to provide. And Lord Kenyon observed, in allusion to Lord Holt's arguments in Cage v. Acton, that he could not but lament that he (Lord Holt) had recourse to such flimsy and technical reasonings to enforce a case so directly against law and conscience. These cases, it will no doubt be remarked, originated on bonds instead of covenants ; but it is apprehended, that the above rules and distinctions are equally applicable to the latter species of security and action. Indeed, although the revival of the bond after the marriage was denied by Lord Holt, yet he expressly ad- mitted (j/), that there was no difference between the case of a promise and a covenant, and the whole court agreed, that the intermarriage operated as a suspension only, and not as an extinguishment of a promise (z). But even in some cases in which the covenant is void at law from the right of action accruing during the coverture, relief may be obtained in equity ; for example, if a feme sole gives a bond, or covenant to her intended husband, that, in case of their mar- riage, she will convey her lands to him in fee, and after their marriage the wife dies without issue, and then the husband dies ; the bond or covenant, though extinguished at law, is good evidence of the agreement in equity, and the heir of the husband may compel a specific performance against the heir of the wife (a). (ij) 1 Ld. Raym. 522. Jac. 571. Smith v. Stafford, (z) See hereon Belcher v. Hud- Hob. 216 ; S.C. Hutt. 17; Noy, son, Cro. Jac. 222 ; S. C. Yelv. 26. Anon. Lit. 32 ; Hetl. 12. 156. Clark v. Thomson, Cro. (a) Cannel v. Buckle, 2 P. Chap .II.] By the Acts of Strangers . . GO 1 SECT. IV. BY THE ACTS OF STRANGERS. The law wisely determines that a covenantee's right IV. By the to the performance of the covenant shall not be de- strano - ers . feated or prejudiced by the acts of a third party. The admission of a different rule would indeed be to furnish the means of fraud and collusion to an alarm- ing extent. Notwithstanding the difficulties which may attend the execution of a covenant on account of the acts of a total stranger, the covenantor cannot claim any exemption ; and if the performance be rendered impossible, he must answer for the breach in damages. On this ground, if a man covenants that his son shall marry the covenantee's daughter, a refusal by her will not discharge the covenantor from making pecuniary satisfaction (b). Or if A. cove- nants to enfeoff B., a third party, A. is not released from his covenant, though B. will not accept livery of seisin (c). So, an act of piracy, unless specially pro- vided against, is no excuse for the non-performance of a covenant by the master of a vessel to bring home a freight to such a port (d). And finally, if, in con- sequence of events which happen at a foreign Wms. 243 ; S. C. 2 Eq. Ca. Ab. v. Penton, 1 Vern. 408. 23. pi. 24 ; 136. (H).pl. 1. Mil- (b) Perk. sec. 756. bourn v. Ewart, 5Term Rep. 384; (c) 7 Term Rep. 384. which seem to overrule Darcy v. (d) Bright v. Cowper, 1 Brownl. Chute, 1 Ch. Ca. 21 ; S. C. 2 &Gold.21 ; recognised in 8 East, Ch. Rep. 245 ; 3 Ch. Rep. 4 ; 445 ; and 7 Term Rep. 385. 1 Eq. Ca. Ab. 63. pi. 1. Fursor Grigg v. Stoker, Forrest, 4. 602 How Covenants discharged or suspended, [Part VI. port, a freighter is prevented from furnishing a load- ing there which he has contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must make compensation in damages (e). (e) Barker v. Hodgson, 3 Maule & Selw. 271. Atkinson v. Rit- chie, 10 East, 530. APPENDIX OF FORMS. FORMS OF LIENS REFERRED TO IN THE NOTE, ANTE, PAGE 4. 1. By one person. — And the said {covenantor) doth by these pre- sents for himself, his heirs, executors, and administrators, covenant, promise, and agree (a), to and with the said (covenantee), his heirs and assigns {b), in manner following, that is to say, &c. 2. Several by two. — And each of them the said {covenantors), severally, separately, and apart from the other of them, doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only, his own acts, deeds, and defaults, covenant, pro- mise, and agree, to and with, &c. 3. Several by three or more. — And each and every of them the said {covenantors), severally, separately, and apart from the others of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and as to, for, and concerning only, his and her own acts, deeds, and defaults, cove- nant, promise, and agree, to and with, &c. 4. Several covenant in arelease by three vendors, joint-tenants. — And each of them the said {vendors), severally, separately, and apart from the others of them, doth hereby for himself respectively, (a) In a covenant that the party has done no act to incumber, the words " cove- nant and declare to and with, &c." should be used. (6) Or " executors, administrators, and assigns," according to the nature of the estate or interest. (504 Appendix of Forms. and his respective heirs, executors, and administrators, and as to, for, and concerning only, that third part of and in the said manors, &c. over which he hath the power or right of alienation, and the acts, deeds, and defaults of himself and his heirs, and all persons claiming or to claim by, from, under, or in trust for him or them, as far as relates to the same one-third part, covenant, promise, and agree, to and with, &c. 5. Joint and several. — And the said (covenantors) do hereby jointly for themselves, their heirs, executors, and administrators, and each of them severally, separately, and apart from the other of them, doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, to and with, &c. 6. By each of four with the remaining three — And each of them the said (covenantors), severally, separately, and apart from the others of them, doth hereby for himself, his heirs, executors, and administrators, and as to and concerning only the acts, deeds, and defaults of himself, his heirs, executors, and administrators, cove- nant, promise, and agree, to and with each of the others of them, and with his executors and administrators, That, &c. 7. By husbands for themselves and wives. And each and every of them the said (husbands), severally, separately, and apart from the others of them, doth hereby for himself respectively, and his respective heirs, executors, and administrators, and as to and concerning only the acts, deeds, and defaults of himself and of his said wife, and of his and her heirs, covenant, &c. 8. Another form. — And each and every of them the said (cove- nantors), severally, separately, and apart from the others of them, doth hereby for himself respectively, and his respective heirs, exe- cutors, and administrators, and so only as to be answerable to the extent of the part, share, or proportion of himself, or of his said wife, of and in the said messuages, lands, and hereditaments, hereby re- leased, &c, or the money arising from the sale thereof, and so that neither of them, the said (covenantors), or his heirs, executors, or administrators, maybe answerable or accountable for the acts, deeds, and defaults of any other or others of them, his or their heirs, exe- Appendix of Forms. 605 cutors, or administrators, or of the wife of any other of them, or of her heirs, executors, or administrators, covenant, &c. 9. On a sale by tenant for life and remainder-man in fee. — And the said (tenant for life) doth hereby for himself, his heirs, executors, and administrators, and so only that he and they may be answerable for and to the extent in value of his estate for life in the said messuage, &c. hereby released, &c, and the acts, deeds, and defaults relating thereto ; and the said (remainder -man) doth hereby for himself, his heirs, executors, and administrators, and so only that he and they may be answerable for the fee-simple and inheritance of the title to the same messuage, &c., subject to the life estate of the said (tenant for life), and the acts, deeds, and defaults relating to the fee-simple and inheritance of the same mes- suage, &c, covenant, &c. In this case the covenants for title should run thus: — That not- withstanding, &c, the tenant for life and remainder-man are seised of a good, &c. estate of freehold, to the tenant for life for his life, with remainder to the remainder-man for an immediate estate of inherit- ance in fee-simple, of and in, &c. That they now have in themselves respectively good right to convey. For quiet enjoyment, without any let, &c. from or by the tenant for life, or the remainder-man, or his heirs. And freely acquitted, &c. by tenant for life, as to his life estate, and by the remainder-man, his heirs, executors, or adminis- trators, as to the inheritance in fee-simple, subject to the same life estate. And moreover, that the tenant for life, and remainder-man, and his heirs, and all persons, &c, will do all acts for further assur- ance. 10. By tenant for life and remainder-men in fee: each as to the acts, and for the estates and interests of himself , his wife, and trustees. — And the said (tenant for life) doth hereby for himself, his heirs, executors, and administrators, and as to and concerning only his life estate in the premises, and the acts and deeds which relate to or concern the same life estate, or the value thereof; and each of them, the said A.B. and CD., (remainder -men ^) severally, separately, and apart from the other of them, doth hereby for himself respec- tively, and his respective heirs, executors, and administrators, and as GOG Appendix of Forms. to and concerning only the acts, deeds, and defaults of himself and of his said wife respectively, and of his and her heirs, executors, and admi- nistrators, and the person or persons rightfully claiming or to claim, by, from, under, or in trust for him, her, or them respectively, as far as the same acts, deeds, and defaults, relate to or concern the moie- ties or paits and shares of said (remainder-men) respectively, or their respective trustees, of and in the said messuages, &c, hereby, &c. ; and so that the said A. B., his heirs, executors, or administra- tors, may be answerable only for or to the value of the moiety, half part, or share of them the said A. B., his wife, and their trustees ; and so that the said C. D. maybe answerable only for or to the value of the moiety, half part, or share of them the said CD., his wife, and their trustees, covenant, &c. 11. To be answerable only to a certain extent. — And the said (covenantor), nevertheless so only as to the value of the beneficial in- terest of the said , his wife, in the residue of the personal estate of the said , doth, &c. covenant, &c. 12. To the extent of share of purchase money . — And each of them the said (covenantors), severally, separately, and apart from the others of them, doth hereby for himself, and herself respectively, and his and her respective heirs, executors, and administrators, and so only as to be answerable for and to the extent of the value of the share or interest of himself and herself, and of his said wife respec- tively, of and in the said messuage, &c, hereby, &c, and the title to the same, &c, rateably and in proportion to such share and inte- rest, covenant, &c. 13. To the extent of one-sixth of damages recoverable under covenants. — -And the said {covenantor) doth hereby for himself, &c, so as to be answerable and accountable only to the extent of one- sixth part of the damages, which are to be recovered under or by virtue of the covenant hereinafter contained, being in proportion to the share and part of himself and his said wife in the purchase money arising from the sales to be made under the trusts reposed in the said , as aforesaid, covenant, &c. 14. By several persons entitled to lands in unequal shares. — And the said A. B. doth hereby for himself, his heirs, executors, and Appendix of Forms. ^07 administrators, as far as relates to or concerns the three undivided fourth parts of the said A. B. and , his wife, of and in the said messuage, &c, hereby released, &c, and the title to the same three undivided fourth parts, and the acts, deeds, and defaults relating thereto, and so only as to be answerable for and to the value of the same three-fourth parts ; and the said CD. doth hereby for herself, her heirs, executors, and administrators, as far as relates to or con- cerns her undivided fourth part of and in the said messuages, &c, and her title to the same undivided fourth part, and the acts, deeds, and defaults relating thereto, and so only as to be answerable for and to the value of the same fourth part, covenant, &c. 15. By persons entitled in shares, extending to acts of tes- tators. — And each and every of them the said {covenantors), sever- ally, separately, and apart from the others of them, doth by these presents for himself and herself respectively, and his and her re- spective heirs, executors, and administrators, and testators, and of all persons claiming or to claim by, from, under, or in trust for him or them respectively, and so that each and every of them the said {covenantors) respectively, and his and her respective heirs, executors, and administrators, may be answerable only for his or her respective share, right, and interest, of and in three undivided fourth parts of and in the messuages, &c. hereby, &c, and the value of the same three fourth parts, covenant, &c. 16. By a person entitled to a third part. — And the said {cove- nantor) doth hereby for himself, his heirs, executors, and administra- tors, and as to and concerning only the third part or share and title of him the said {covenantor), and the acts, deeds, and defaults of himself, his heirs, executors, and administrators, and all persons claiming, or to claim, by, from, under, or in trust for him or them, as far as concerns the same share and title, covenant, &c. 17. By two severally as to distinct fifth shares. — And each of them the said {covenantors), severally, separately, and apart from the other of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and as to and concerning only his and her own fifth part or share of and in the messuage, &c. hereby released, &c», and the acts, deeds, title, 608 Appendix of Fonns. and default of himself and herself respectively, and of his and her re- spective heirs, executors, administrators, and assigns, and of the said {testator), and his heirs, so far as relates to or concerns the same fifth part, covenant, &c. 18. By ■persons entitled in shares: several by three : joint and several by three others : and several by another. — And each of them the said A., B., and C, severally, separately, and apart from the others of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and as to and concerning only the acts, deeds, and defaults of himself and herself respectively, and his and her heirs, executors, and adminis- trators, and so far only as concerns his, her, or their proportionate part or share of and in the said messuages, &c. : And the said D., E., and F., do by these presents jointly for themselves, their heirs, exe- cutors, and administrators, and each of them, severally, separately, and apart from the other of them, doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning, and only as to, for, and concerning the acts, deeds, and defaults of them the said D., E., and F., and their respective heirs, executors, and ad- ministrators, and their proportions, parts, or shares of the said mes- suages, &c. : And the said G. doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning the acts, deeds, and defaults of himself, and the said , his wife, his and her heirs, executors, and administrators, and as far only as concerns his or their said proportion, part, or share of the said messuages, co- venant, &c. 19. By persons entitled to moieties in their own right. — And each of them the said {covenantors), severally, separately, and apart from the other of them, doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only his own moiety or half part of the said messuage, &c. hereby released, &c., and the acts, deeds, and defaults of himself, his heirs, executors, and administrators, and all persons claiming or to claim by, from, under, or in trust for them, in relation thereto, covenant, &c. 20. By two persons entitled in equal moieties, one in his own right and the other in right of his xvife. — And the said A. B. doth Appendix of Forms. ( j<>9 hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only the moiety or half part of his said wife, of the said messuages, &c, hereby released, &c, and the acts, deeds, and defaults relating thereto. And the said C. D. doth hereby for herself, her heirs, executors, and administrators, and as to, for, and concerning only the other undivided moiety or half part of the said messuages, &c, hereby released, &c, and the acts, deeds, and de- faults relating thereto, covenant, &c. 21. By husbands as to shares in their own rights, and in right of their wives. — And each and every of them the said {covenantors), severally, separately, and apart from the others of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and as to and concerning only the acts, deeds, and defaults of himself and herself respectively, and of his said wife, and all persons rightfully claiming, or to claim, by, from, under, or in trust for him, her, or them respectively, or the said testator, but so only as to be answerable for the respective share, right, and interest of himself and herself respectively, and of his said wife, of and in the messuages hereby, &c, and of and in the money arising from the sale of the same hereditaments, covenant, &c. 22. By vendors entitled in different shares, one being entitled jure uxoris. — And each and every of them the said (covenantors), severally, separately, and apart from the others of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and so only as to be answerable for the part or proportion of himself or herself, and as to the said (hzis- band), so far only as to be answerable for the part or proportion of himself and his said wife, in her right, of and in the said hereby as- signed or otherwise assured moiety of and in the said messuages or dwelling-houses, and the money arising from the sale thereof, and so that neither of them the said (covenantors), or his or her heirs, executors, or administrators, may be answerable or accountable for the acts, deeds, and defaults of any other or others of them, his, her, or their heirs, executors, or administrators. And so that the said (husband) only may be answerable for the acts, deeds, and defaults of the said the wife of the said (husband), or of her execu- tors or administrators, covenant, promise, and agree, &c. R R 610 Appendix of Forms. 23. By intended husband and wife in a settlement of wife's property. — And each of them the said A. B. (intended husband), and C. D. {intended wife), severally, separately, and apart from the other of them, doth hereby for himself and herself respectively, and his and her respective heirs, executors, and administrators, and so that the said C. D. may be answerable only for the acts and de- faults of herself and of her executors and administrators ; and so that the said A. B. may be answerable only for the acts and defaults of himself, his executors, and administrators, and the acts and de- faults of the said C. D. during- her coverture by him, covenant and declare with, &c. 24. By persons in their own right, and others in right of tes- tator. — And each and every of them the said (owners in their own right), severally, separately, and apart from the others of them, doth hereby for himself, and his respective heirs, executors, and adminis- trators, and as to, for, and concerning only that part or share in which he is beneficially interested in his own right, of and in the said messuage, &c, and the acts, deeds, and defaults of himself, his heirs, executors, and administrators, and all persons claiming, or to claim, by, from, under, or in trust for him. And the said (other covenantors), severally, &c, and for his, &c, and so far only as he or she is beneficially interested in the share late of the said (testator), and the acts, deeds, and defaults relating to the share of the said (testator), covenant, &c. 25. By a person entitled to an estate for life and reversion in fee. — And the said (covenantor) doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only, and as far as relates to the title under his estate for life, and re- mainder or reversion in fee, and the acts, deeds, and defaults relating thereto, covenant, &c. 26. By two persons severally in an assignment of lands de- mised to them by two distinct leases ; each as to the premises com- prised in his lease. — And the said A. B. doth hereby for himself, his heirs, executors, and administrators, and so far only as relates to or concerns the messuage, &c, comprised in and demised by the said indenture of lease, bearing date on or about the 8th day of January, Appendix of Fur ma. Gil 1802. And the said C. D. doth hereby for himself, his heirs, exe- cutors, and administrators, and so far only as relates to or concerns the messuage or tenement and premises comprised in and demised by the said indenture, bearing date on or about the 7th day of Oc- tober, 1812, covenant, &c. 27. By each of two persons as to the deeds in his possession. — And the said A. B. doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only the deeds, pa- pers, and writings, mentioned in the first schedule to these presents, and the acts, deeds, and defaults relating thereto. And the said C. D. doth hereby for himself, his heirs, executors, and administrators, and as to, for, and concerning only the deeds, papers, and writings, mentioned in the second schedule to these presents, and the acts, deeds, and defaults relating thereto, covenant, &c. FORM OF A COVENANT TO LEVY A FINE, REFERRED TO, ANTE, PAGE 155. And the said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, to and with the said E. F., his heirs and assigns, that they the said A. B., and C. his wife, she hereby consenting thereto, testified by her execution of these presents, shall and will, at the costs and charges of the said A. B., as of term last, or before the end of term now next ensuing, acknowledge and levy, before his Majesty's Justices of the Court of Common Pleas at Westminster, unto the said E. F. and his heirs, one or more fine or fines, sur conuzance de droit come ceo, &c ; whereupon proclamations shall be had and made according to the statute in that case made and provided, and the usual course, order, and manner of fines for assurance of lands in like cases used and accustomed, of all the said lands and here- ditaments hereby released, or expressed and intended so to be, with R R 2 GI2 Appendix of Forms. their appurtenances, by such apt and convenient names, quantities, qualities, and descriptions, as shall be sufficient to ascertain and comprise the same : And it is hereby declared and agreed by and between the parties hereto, that the said fine so as aforesaid, or in any other manner, or at any other time, to be acknowledged and levied, and all and every other fine and fines, common recovery and recoveries, conveyances and assurances in the law whatsoever, already acknowledged and levied, and hereafter to be acknowledged and levied, of the said lands and hereditaments, or any part thereof, by or between the said parties to these presents, either alone or jointly with any other person or persons, or to which they or either of them are or shall or may be parties or privies, or party or privy, shall operate and enure, and be adjudged, construed, deemed, and taken to operate and enure, To the use, &c. INDEX. ABBEYS, dissolution of. See Reversion. ABSOLUTE OR QUALIFIED. See Title, Covenants for. ACCEPTANCE, of lease by bankrupt's assignees, what acts amount to, 507. ACCIDENT. See Equity. ACTION, CIRCUITY OF. See Circuity. ACTION OF COVENANT, will not lie on a covenant to stand seised, 3. proper remedy in general on breach, 543. damages only recoverable, 543. writ of covenant fallen into disuse, 543. no process of outlawry in, at common law, 543. remedied by statute, 543. lies only where contract under hand and seal, 544. except by custom, or king's lessee by patent, &c, 9. distinguished from assumpsit, 544. parol agreement cannot be foundation of, 544. nor pleaded in bar, 544. concurrent remedy with debt, where for sum certain, 544. where money payable by instalments, 545. particularly resorted to on covenants in leases, 545. preferable remedy to debt, where, 545. what declaration should show, 546. how breach assigned, 546. damages in, 546. judgment in, 546. costs in, 546. bail in error, 546. statutes of limitations do not affect, 547. whether supportable on covenant to repair without giving notice, 290. or within the period prescribed by notice, 291. right of, on covenant not transferable, 525. 538. once vested in grantee of reversion, not defeated by assignment over, 538. 614 buL\i. ACTS, signification of the word, 3M. ADMINISTRATOR, not bound by a covenant by a man for himself and his as- signs, 422. See also Executor. ADMISSION, assignee of covenantee may compel admission to copyholds, 152. ADVERTISEMENT, for sale, no breach of covenant against assignment or under- letting, 410. of bankrupt's lease for sale, does not render assignees liable to covenants, 507. AFFIRMATIVE COVENANTS, 19. AGE, old age not of itself sufficient to invalidate covenant, 109. AGREEMENT, covenant will lie on any words of, 29. . though parties disclaim an intention to covenant, 29. parting with possession of premises under, no breach of cove- nant not to assign or underlet, 409. AGRICULTURE, covenants relating to, run with the land, 467. ALIENATION, covenants in restraint of, without license. See License. ALTERNATIVE COVENANTS, 21. party benefited to do first act, 22. covenant to do an act on one of two events, not defeated by waiting till latter event, 24. performance to be specially pleaded, 25. APPLICATION, effect of making cestuis que trust covenant, on the necessity of purchaser seeing to the application of purchase money, 401 . APPORTIONMENT of estate will not discharge covenant, 495. APPRENTICE, infant cannot be sued on his covenant in his apprenticeship- deed, 111. except by custom of London, 111. but master may be sued on his covenant, 112. if deed void, father's covenant for cloathing, &c. void, 576. ARBITRATION, covenants for reference to, are of no avail, 146. cannot support an action, 146. nor be pleaded in bar to an action, 147. though it seems a reference made, pending, or determined, may, 147. with few exceptions, equity agrees with the law 147. court will not decree a specific performance of, 148. Index. ARBITRATION — continued. covenants for reference to — continued. nor grant an injunction to restrain proceedings at law, 148. nor substitute the master for arbitrators, 148. defendant cannot plead the covenant in bar in equity, 148. will not bind parties to submit to, before they come into equity, 148. except in very special cases ; such as the Opera-house ; a brewery, &c. 148. an agreement for liquidated damages should be inserted, 1 49 not a necessary consequence that party forbears to sue, 1 50. See also Award. ARREAR, signification of term arrears of rent, 333. ASSAULT, no breach of covenant for quiet enjoyment, 322. ASSETS. heir must have, bv descent, to be liable on ancestor's covenant, 449. land taken aliunde not available, 450. descended trust estates are assets, 45 1 . so are estates pur autre vie, 451. See also Heir. ASSIGN AND TRANSFER, the words sometimes raise an implied covenant, 49. ASSIGNEE, liability of, 1. Where bound without being named, 465. on covenant to repair, 267. 466. to lay out a sum of money in repairs in case of fire, 466. to insure premises within bills of mor- tality, 466. relating to mode of cultivation, 467. to reside on the premises, 467. that lessee shall have estovers, 467. to pay rent, 468. to discharge lessor of charges, 468. to do suit at lessor's mill, while ownership of mill and reversion in same person ,468. to carry coals'to lessor's mansion, 468. not to carry on particular trades, 468. that lessor shall have a free passage, &c . 468. by lessee of tithes not to let farmers have any part of them, 469. for title, 470. for quiet enjoyment, 470. for further assurance, 470. lor renewal, 470. to supply demised premises with water,470. 616 Index. ASSIGNEE, liability of — continued. 2. Where bound by being named, 471. thing not in esse at the time of the demise, 471. examples, 471, 2. whether covenant by lessee of public-house to buy beer of lessors will bind assignee if named, doubtful, 472. 3. Where not bound although named, 473. examples, 474, et seq. advantage of naming assignee, 480. 4. What persons are comprised within the term " assignee," 480. examples, 481. assignee must be possessed under the original demise, 481. and must be assignee of the term, 481. sufficient to show that estate is vested in him, 482. form of allegation, 482. so in suit in equity assignee should be shown to be an assign, 482. devisees of equity of redemption not liable at law, 483. nor depositary of a lease, 483. nor party where grantors had no interest, 483. assigns must be such as assume that character after covenant made, 484. assignee holding over after expiration of lease, 484. under-lessee not an assignee, 485. 5. Entry not necessary to constitute party an assignee, 486. no difference whether assignment is absolute or by way of mortgage, 488. 6. Duration of assignee's liability, 489. the several privities distinguished, 489. assignee liable in respect of privity of estate, 493. may discharge himself by assigning over, even without notice, 494. although his assignee never enter, 494. not liable at suit of assignor on covenants in lease, 495. assignee of part of estate liable, 495. 7. When assignee liable after assignment for breaches before assignment, 495, et seq. or after expiration of term by effluxion of time, 503. not liable for breaches before assignment to him, 503. 8. What a valid or fraudulent assignment, 503. assignment to a feme coverte, 503. beggar, 504. person leaving the kingdom, 504. Indc.v. 017 ASSIGNEE, liability of — continued. what a valid or fraudulent assignment — continued. assignment to a prisoner in the Fleet, 504. non-entity, 504. not annulled in equity unless fraudulent, or the assignment merely colourable, 505. 9. Liability of assignees of bankrupt. See Bankrupt. liable although assignee of part only of the premises, 267. bound by implied covenants, semble, 42. rights of, may take advantage of covenants running with the land, 63. 66. 305. 523. or of implied covenant, 523. where covenant inherent assignee need not be named, 523. examples, 523, 4. who within the term " assignee," 525. tenant by statute-merchant or statute-staple, 525. elegit, 525. assignee under an execution, 525. by parol before statute of frauds, 525. by estoppel, 525. assignee of lessor cannot sue on covenant broken in lessor's time, 525. unless breach continue after assignment, 525. test for discovering whether he may sue, 534. See Land, covenants running with. ASSIGNEES OF BANKRUPT only covenant that they have done no act to incumber, 401. unless they advertise to sell absolutely, when, it appears, they must covenant as other vendors, 401. See further, Bankrupt. ASSIGNEE OF REVERSION. See Reversion. ASSIGNMENT, is a breach of a covenant not to underlet, 408. covenants in restraint of, without license. See License. of breach. See Breach. of leaseholds. See Indemnity ; Leaseholds. ASSIGNOR, cannot sue assignee on covenants in the lease, 495. ASSUMPSIT, maintainable against lessee, or assignee, holding over, 283, 4. 484. distinguished from covenant, 544. ASSURANCE. See Further Assurance. ATTAINDER, incapacitates party from covenanting; for his own benefit, 1 13, 114. of covenantor does not defeat covenantee of his claim, 1 14. covenant made during attainder is valid, 114. disabilities removed by reversal, or pardon, 111. 618 Index. ATTAINDER— continued. and forfeiture no discharge of felon from covenants in his lease, 492. ATTORNEY, covenant by, to relinquish business, and to recommend clients, and not to practise within 150 miles, good, 572. lease made by, in his own, instead of principal's name, void, 575. warrant of. See Execution, AVERMENT, of performance necessary where the plaintiff's covenant con- stitutes a condition precedent, 105. See also Declaration. AVOIDANCE. See Discharge. AWARD, if void, covenants for performance of, are also void, 576. but covenant to pay expense of, valid, 578. See also Arbitration. BAIL, no bail in error where judgment by default, 546. BANKRUPT, on assignment of his leaseholds is not entitled to a covenant of indemnity against payment of rent and performance of covenants, 180. not compellable to covenant for title, 401. he usually does so as a matter of favor, 401. under covenant not to assign without license absolved on pur- chasing from vendee under his own commission, 411. lessees, how placed with regard to covenants in their leases, 209. 493. assignees of, on assigning his leaseholds are not entitled to a covenant of indemnity against payment of rent and perform- ance of covenants, 179, 180. bound to covenant to produce, &c. 229. their liability should be confined to the period of their being assignees, in case they procure their purchaser to covenant, 229. assignees not entitled to renewal, unless they enter into usual covenants, 251. their assignee entitled to, 251. assignees of bankrupt mortgagor, tenant in tail, afterwards becoming bankrupt, bound by his covenant for further assurance, 345. advertising to sell a freehold estate, undertake to make a title, 399. their liability on his leases : general assignment does not vest leases in them, 506. not bound to accept term, 506. what acts amount to acceptance, 507. of advertising property, 507. release of under-tenant, 508. Index. 619 BANKRUPT — assignees of — liability on leases — continued. what acts amount to an acceptance — continued. allowing property to remain on premises, 508, 9. exercising acts of ownership, 509. sale of reversionary interest, 509. putting up to sale and receiving deposit, 510. act of taking possession, 510. effect of assignment by commmissioners, before refusal or acceptance by assignees, 511. assignees of bankrupt may assign to a beggar, &c. to rid themselves of covenants, 512. BANKRUPTCY, no breach of covenant restraining assignment without license, 418. BARGAIN AND SALE, bargainee under, is an assignee of reversion under the stat. 32 Hen. 8. c. 34.-542. BARGAIN AND SELL, these words do not raise a covenant, semb. 49. BARON AND FEME, husband liable on covenant made by wife before marriage, 113. action lies against surviving wife on fine with warranty, 113. cannot covenant with each other, 114. husband may with a stranger for her benefit, 115. husband covenants on behalf of his wife, 156. to levy fine, 156. notice of her consent immaterial, 157. application to wife, and not husband, not sufficient to charge him on her refusal, 157. BEGGAR, assignment to, valid, 504. BENEFICE, covenant by a rector or vicar to pay annuity charged on, up- held, 578. BEQUEST, whether a breach of covenant in restraint of assigning or un- derletting without license, 412. BISHOP, covenant in a lease by, not usually inserted in such leases, will not bind successor, though named, 215. 477. BOND, action of covenant will lie on, 5. for performance of covenants : difference between covenants in general, and covenants se- cured by bond, 547. plaintiff may sue on bond or covenant, or sometimes on both, 547. advantage of taking, 453. 548. covenant preferable remedy for lessor, 549. inconveniences of, 549. formerly redressed in equity, 549. G20 Index. BOND for performance of covenants — continued. now remedied by statute, 550. object of the statute, 552. is compulsory on plaintiff, 553. covenants need not be in a distinct instrument, 553. extend to implied covenants, 46. 553. bond and covenants constitute only one assurance, 553. release of covenants is a release of bond, 554. BREACH, what amounts to. See the several chapters on Particular Express Covenants. assignment of, in general, 546. of covenant for seisin, in direct negative, good, 308. good right, in direct negative, good, 311. in covenant for quiet enjoyment, 318. where eviction has taken place, 328. on covenant for further assurance, 343. in assigning, on a covenant not to assign without license, the declaration must allege that the assignment was without license, 407. BRIBERY, covenants relating to, void, 581. BRISTOL, by custom of, covenant may be without specialty, 9. such a custom construed strictly, 9. BUILD, covenant to, no specific performance of, 297. unless it be to build in uniformity, 298. small deviations from plan not important, 299. on premises demised will bind assignee only if named, 471. on stranger's land, will not bind assignee although named, 473. CANCELLATION, discharge of covenants by, 594. CAPACITY, legal capacity necessary to support a covenant, 107. CASE, ACTION ON THE, maintainable against lessee holding over, 283, 4. CESTUIS QUE TRUST, how far bound to covenant for title, 388, 9. 400. practice of conveyancers, 398.401. covenant with, to pay rent merely collateral, 462. CHARITABLE FOUNDATIONS, of covenants for renewal by. See Renewal. CHOSE IN ACTION, not transferable at law, 538. Index. 02 1 CHURCH-RATES, not within the term " taxes," 222. nor within the words " duties, charges, and taxes," 223. CIRCUITY OF ACTION, words of covenant construed to be words of release, to avoid, 593. COHABITATION, covenant for, void, 569. COLLATERAL COVENANTS, 69. bind executors, 70. but not assignees, 70. covenant to indemnify against payment of rent, and perform- ance of covenants is collateral, 181. so is a covenant by lessee with mortgagor to pay rent, 461 . so is a covenant with cestui que trust, 462. statute 32 Hen. 8. c. 34. has no operation on, 534. See also Assignee. COLLEGIATE PERSONS, of covenants for renewal by. See Renewal. CONCEALMENT. See Equity. CONCURRENT COVENANTS, 70. 86. See also Dependent Covenants. CONDITION, covenant will lie on words of, 37. but not where the words are merely conditional, to defeat an estate, 37. distinguished from covenants, 71. words usually creating, 72. same words sometimes covenant and condition, 72. where plaintiff's covenant constitutes a condition precedent, he must aver performance, 104,5. where covenants are to be performed at the same time, per- formance or an offer must be shown, 106. where mutual or independent, no averment of performance ne- cessary, 106. against assignment without license, absolutely dispensed with by license once granted, 425. See also Dependent Covenants. CONDITION PRECEDENT, negative covenant not construed as, 20. CONSIDERATION, not necessary to support covenant, 40. but to enforce specific performance of covenant to renew, some consideration should spring from lessee, 255. CONSTRUCTION, liberality of courts in, 78. general rules of, 136. same construction in every court, 136. courts not confined to a literal interpretation, 136. exposition made according to intention, 136. and from the entire context of the deed, 137. agreeable to the rules of the civil law, 137. 622 Index. CONSTRUCTION —continued. general words narrowed by the apparent object of the deed, 138. object of good construction, 141. equivocal words, or words in equilibrio, construed most strongly against covenantor, 141. where intention cannot be discovered, construction made ac- cording to the letter, 142. no attention paid to acts or interpretation of parties, 144. always made so as to support covenant, 145. reasonable time allowed for performance, 145. construction of stat. 32 H. 8. c. 34. See Reversions. CONTRACT, privity of, exists by virtue of covenant, 490. not absolutely transferred to assignee of estate, 490. except in case of implied covenant, 490. lessee liable on, during continuance of term, 490. no act of his own can absolve him from it, 49 1 . assignment and receipt of rent by lessor from assignee, not sufficient, 491. nor disposition by law, 492. as on sale of lease under a fieri facias, 492. or an elegit, 492. or forfeiture on attainder for felony, 492. or sale under act of parliament, unless specially pro- vided for, 492. exception in favor of bankrupt lessees, 493. transferred from reversioner to reversioner, by stat. 32 Hen. 8. c. 34. — 533. See also A ssignee ; Estate. CONTRIBUTION between joint covenantors, 133. CONVEYANCERS, practice of, on conveyances by cestuis que trust, 398. to stipulate for determination of lease on lessee's bankruptcy, 421. COPYHOLDS, covenant to surrender : by covenant purchaser obtains a right in equity, 151 . principal use of, 151. does not amount to surrender, 151. though presented by homage, does not give lord a right to fine, 151. assignee of covenantee may compel lord to admit him, 1 52. refusal to execute letter of attorney for surrender, no breach, 152. tender of letter of attorney, no request to surrender, 152. covenant to surrender at the costs of covenantor, not broken by his refusal to pay fine, 152. covenantor must get surrender presented, 153. covenantee in action need not show that a court was holden, 153. Index. 023 COPYHOLDS — covenant to surrender — continued. general covenant to surrender performed by surrender to two tenants out of court, 153. specific performance of, 153. heir bound by, 154. covenant amounts to a revocation of a will in equity, where an actual surrender would be a revocation at law, 1 54. are within the stat. 32 Hen. 8. c. 34.-537. CORPORATIONS, of covenants for renewal by. See Renewal. COSTS, of fine, by whom borne, 158. 351. of covenant for production, by whom borne, 232. of execution of covenant for renewal, by whom borne, 264. of executing covenant for further assurance, by whom to be borne, 351. incurred by lessee in defending an action may be recovered as special damages against under-lessee on covenant, 287 in action of covenant, 546. COVENANT, defined, 3. covenant in prcesenti, 3. distinguished from a defeasance, 4. of the lien, 4. of the covenantor, 4. of the covenantee, 4. in general must be by deed, 4. word covenant implies a deed, 6. whether party liable without executing, 10. kinds of: affirmative, 19. negative, 19. executed, 19. executory, 19. obligatory, 21. declaratory, 21. disjunctive or alternative, 21 . express, 25. implied, 40. real, 60. inherent, 66. personal, 66. collateral, 69. dependent, 70. concurrent, 71. independent, 71. distinguished from conditions, 71. by and with whom covenants may be made, 107. as to idiots and lunatics, 107. persons of weak mind , 108. aged persons, 109. G24 Index, COVENANT — by and with whom made — continued. drunkards, 109. infants, 111. feme coverte, 112. attainted or outlawed persons, 113. husband with wife, 114. with reference to number and connexion of parties : several, 115. 123. joint, 116. 127. joint and several, 117.129. general rules for construction of covenants, 1 36. of particular express covenants : for reference to arbitration, 146. to surrender copyholds, 151. to levy fines, 155. for indemnity against payment of rent, and performance of covenants, 177. to insure, 183. to pay rent, 195. to pay taxes and rates, 211. for production, 224. for renewal, 233. to repair, 266. for title, 305. seisin, 307. good right to convey, 311. quiet enjoyment, 313,. indemnity against incumbrances, 330„ further assurance, 340. equitable relief, 354, absolute or qualified, 355- against whose acts to extend, 383- who bound to enter into, 399. in restraint of assigning or underletting without license, 404. in restraint of exercising particular trades, 443. liability of covenantor, 448. heir, 448. devisee, 452. executor or administrator, 453. assignee, 461. rights of covenantee, 513. heir, 513. devisee, 519. executor or administrator, 520. assignee, 522. liabilities and rights under the statute 32 Hen. 8. c, 34. relating to grantees of reversions, 527 . of the remedies at law, 543. of bonds for performance of covenants, 547. Index. 625 COVENANT— continued. of relief in equity, 555. for covenantee, 556. for covenantor, 565. of void covenants, 568. at common law, 568. by statute, 581. how discharged or suspended, 582. by act of God, 582. law, 585. 587. parties, 590. strangers, 601. in performance of public duty not binding on covenantor person- ally, 27. will not lie against lessee holding over, 283, 4. not broken is releasable by special name only, 592. whether covenants can be required under a covenant for further assurance, 346. COVENANT, ACTION OF. See Action of Covenant. COVENANTS, to indemnify against action for non-performance of covenants. See Indemnity. COVENANT TO STAND SEISED, action of covenant will not lie on, 3. COVENANTEE, may sue without executing deed, 18. covenant can only be brought by, 513. not by him in whose favor only it is made, 513. covenants construed joint or several according to interests of covenantees, 123. COVENANTOR, may covenant for a stranger, 26. not personally liable where covenant entered into in performance of a public duty, 27. liability of, 448. CROWN, in sales under, no covenants for title given, 388. See also King. CUSTOM, by custom of London, covenant may be without specialty, 9. so, by custom of Bristol, §. such a custom construed strictly, 9. by custom of London, infant may be sued on his covenant in apprenticeship deed, 111. by custom of Norfolk, landlord usually covenants to repair, 296. so, by custom of Isle of Ely, 440. DAMAGES, usual to give nominal damages in actions brought within the term for not repairing, 289. S S 62 V) Index. DAMAGES— continued. but it is a rule of discretion, 289. recoverable toties quoties, 311. recoverable under covenants for title, 305. as between tenant for life and reversioner, 537. should be laid to cover real amount, 546. See Liquidated Damages. DEATH, covenant where discharged by, 583. DEBT, secured by covenant is a specialty, 459. and ranks with debts on bond, 460. grantee of reversion could maintain, at common law, 527. lies in some cases for covenant broken, 543. DECEIT, action in the nature of, 354. DECLARATION, need not allege fact of sealing, 6. if instrument not shown to be a deed, defect cured by pleading over, 6. but not where declaration states it to be merely a writing, 6. nor helped by a profert, 6. good if declared to be per factum, 6. in action against heir, need not allege that he had assets by descent, 452. form of averment in action against assignee, 482, See also Action of Covenant. DECLARATORY COVENANTS, 21. DEDI, this word creates a warranty, 48. DEED, in general, covenant must be by, 4. exceptions, 9. custom of London, 9. Bristol, 9. king's lessee by patent, 9. word covenant implies a deed, 6. if inter partes party cannot covenant with person no party, 7. if one not named executes he is liable, if deed inter partes, 7. DEED-POLL, covenant will lie on, 5. covenantee must be named therein, 5. and have the deed to show, 5. need not execute, 5. indenture not inter partes operates as deed-poll, 7. covenant cannot be maintained against lessee under, semb. 16. mutual covenants cannot arise under, 17. 55. DEEDS, deposit of, See Deposit. production of, See Production. Index. 627 DEFAULT, signification of the word, 335. lessor's default in paying rent whereby under-lessee is evicted, is a breach of covenant for quiet enjoyment, 338. DEFEASANCE, distinguished from covenant, 4. covenant defeated as to one is defeated as to all, 593. See also Discharge. DEFECT, of covenants for title, where purchaser acquainted with de- fect, 387. covenant for indemnity against defect in title should be by sepa- rate deed, 387. DEMISE, words of, raise an implied covenant, 47. not on a demise of goods, 48. DEPENDENT COVENANTS, 70. Dependence or independence of covenants to be collected from intention, 79. rules relative to : 1. Where the mutual covenants go to the whole of the consideration on both sides, 80. 2. Where the act in consideration of which the money is to be paid precedes the day of payment, 83. 3. Where the mutual covenants go to a part only of the consideration on both sides, 90. 4. Where the day for payment of the money arrives be- fore the act for which the money is to be paid can be performed, 95. DEPOSIT OF DEEDS, deposit of, no breach of covenant restraining assignment or underletting, 410. depositary of lease not chargeable in covenant on general alle- gation of being assignee, 483. but equity will compel him to take a lease, 483. DESCENT, what covenants for title required where vendor takes by, 388. See also Heir. DEVISE, what covenants for title required where vendor takes under, 388. See also Bequest. DEVISEE, liability of, not liable on devisor's covenant, 452. debt lies against him by statute, 452. liable to action of debt for money secured by covenant, 453. where bond given for performance of covenants, 549. rights of, stands in place of heir at law, and invested with same rights, 519. S S 2 028 Index. DEVISEES IN TRUST TO SELL, only covenant that they have done no act to incum- ber, 401. DISCHARGE OF COVENANTS, by the act of God: distinction between duty created by law, and by party himself, 582. by the act of common law, 585. extinguishment, 585. performance, 586. recovery of damages, 587. by statute, covenant where repealed by, 587. general rule is, that covenant is repealed by prohibition of this country ; but not by prohibition of foreign coun- try, 588. covenant may be discharged in part, and be good as to the rest, 590. by the acts of the covenantor, 590. cannot discharge himself, 590. by the acts of covenantee, 591. by actual release, 591. cannot be dispensed with by parol, 591. covenant releaseable by special name only, where not broken, 592. where words of covenant construed to be words of re- lease, 593. distinction between covenant never to sue, and covenant not to sue for a particular time, 594. by cancellation, 594. by rendering performance impossible, 594. forcible prevention, 595. absence where presence required, 595. omission to do necessary acts, 596. discharge of part of covenant, 597. by mutual act of parties : intermarriage, 598. by acts of strangers, 601. DISCOVERY, court will not assist lessor to compel mortgagee not in pos- session to discover whether lease assigned to him, 295. nor enforce a discovery whether lessee has assigned without license unless lessor will waive forfeiture, 429. DISJUNCTIVE COVENANTS. See Alternative. DISTRESS, grantee of reversion could distrain at common law, 527. DISTURBANCE. See Eviction. DOWER, recoverv in, where a breach of covenant against incumbrances, 337. Index. 629 DRUNKARDS, covenant made by person extremely drunk void, 109. no assistance in equity for covenantor or covenantee, 1 10. unless unfair advantage taken ; or party drawn in to drink, 1 10. like law in Scotland, 110. ECCLESIASTICAL PERSONS, of covenants for renewal by. See Renewal. ELEGIT, sale of lease under, will not discharge lessee from covenants, 492. assignee under, bound by, and may take advantage of covenants, 481. 525. ELY, ISLE OF, by custom of, landlord usually covenants to repair, 440. ENJOYMENT. See Quiet Enjoyment. ENTRY, want of, by lessee will not deprive him of remedy on implied covenant, 47. power of, usually reserved to landlord to see state of repairs, 290. not necessary to constitute party an assignee, 486. whether assignment be absolute or by way of mortgage, 488. EQUITABLE MORTGAGE. See Deposit. EQUITY, of relief in, against forfeiture occasioned by breach of covenant to insure, 192. where lessee has expended large sums on premises, 193. against payment of rent though premises burnt down, 198, et seq. where lessee offers to surrender lease, 201. and landlord has insured and received insurance money, 202. on forfeiture for non-payment of rent, 205. to recover payments of taxes which tenant might have de- ducted, 219. for covenantee on omission to claim renewal at appointed time, 257. where tenant guilty of gross laches, 258. where lessor guilty of fraud, 261. in case of accident or misfortune, 261. in. case of mere ignorance, 262. to compel landlord to repair premises destroyed by fire, &c, 276, et seq. where landlord has received money on his own insurance, 280. from forfeiture on breach of covenant to repair, 299. jurisdiction of court on this subject denominated a dan- gerous one, 299. generally confined to cases of accident, fraud, ignorance, or surprise, 302. where premises must immediately afterwards be pulled down, 303. 630 Index. EQUITY— continued. of relief in — continued. where tenant's conduct gross or ruinous, 303. for trustees on their covenant for quiet enjoyment, 329. in cases of fraud or concealment in cases of covenants for title, 354. against forfeiture on breach of covenant to assign without license, 423. 429. for covenantee : by way of specific performance, 556. jurisdiction of court, 556. not decreed according to letter of covenant, 556. where action cannot be maintained at law, 556. on covenants to surrender copyholds, 557. for renewal, 557. for further assurance, 557. not decreed, of covenants of every description, 558 . covenants for reference to arbitration, 559. that wife shall levy fine, 559. to repair, 559. to build, 559. to lay out money on building, 559. exception, 559. relating to chattels, 559. to resign living, 559. to take a lease of one of six houses subject to proviso for re-entry, 560. for purchase of goodwill, qu., 561. where doubtful whether party meant to contract to extent charged, 561. decreed though party hasequitable estate only,56 1 . by way of injunction to restrain breach, 562. in what cases granted, 562. 563. for covenantor : by way of relief against forfeiture, 565. origin of, 565. See also Injunction. Specific Performance. EQUITY OF REDEMPTION, vendor of, not entitled to a covenant for indemnity against pay- ment of rent and performance of covenants, 180. devisees of, not chargeable as assignees of "all the estate," &c, such being understood to mean legal estate, 483. See also Mortgage. EQUIVOCAL WORDS, construed most strongly against covenantor, 141. ESCHEAT, lord entering for, cannot sue under stat. 32 Hen. 8. c. 34. — 542. ESTATE, privity of, necessary between contracting parties to make covenant run with the land, 461. Mr. Sugden's remarks hereon, 462. Index. 631 ESTATE— privity of— continued. exists between lessor and lessee in respect of the demise, 490. co-durable with and annexed to estate, 490. transferred by assignment, 490. assignee liable on score of privity of estate, 493. divests himself by assignment over, 494. no notice necessary, 494. See also Assignee. Contract. ESTATE-TAIL. See Intail. ESTOPPEL. assignee by, cannot take advantage of covenants in lease, 525. ESTOVERS, covenant that lessee shall have, runs with the land, 467. EVICTION, by title, or by landlord himself, suspends covenant for payment of rent, 197. and may be pleaded in bar, 197. does not constitute breach of covenant for good right to convey, 311. by stranger without title, no breach of covenant for quiet enjoy- ment, 313. not necessary to support action on breach of covenant for quiet enjoyment, 327. EVIDENCE, that stranger carries on business in house and puts his name over door not sufficient to support action on covenant for assigning without license, 407. of fraud not receivable on plea of non assignavit, 505, 6. EXCEPTION, covenant will lie on words of, 31. 32. of piece of land in another's possession, no covenant against that person's acts, 317. EXECUTED COVENANTS, 21. EXECUTORY COVENANTS, 21. EXECUTION, assignee under sale on, bound by, and may take advantage of covenants, 481. 565. under warrant of attorney, no breach of covenant not to assign without license, 415. unless given for that express purpose, 417. EXECUTOR, bound by implied covenant, 41. liability ceases with estate on which covenant arose, 41. of each several covenantee represents testator, 131. but not of a joint covenantee, 132. is liable on a joint and several covenant of testator, 133. of one of two lessees of a joint interest is liable on testator's joint and several covenant for payment of rent, 135. on assigning testator's leaseholds is entitled to a covenant for indemnity against future payments of rent and per- formance of covenants, 179. G32 Index. EXECUTOR— continued. liable on covenants for title, 305. only covenants that he has clone no act to incumber, 401 . whether he can assign without license, 421. liable in respect of assets for covenants broken by testator, 453. and performance of such as relate to the personalty, 453. although not named, 454. examples, 454. 455. assignment of lease with lessor's consent no discharge, 454. 455. otherwise if covenant to be performed personally by testator, 456. examples, 456. 457. where liable de bonis testator is only, 457. de bonis propr Us, 458. liable on implied covenant, when, 458. represents testator as to real covenants, where damage sustained in his lifetime, 520. and as to leaseholds, 521. cannot recover on covenant bioken during testator's life unless actual damage sustained, 521. as if testator evicted, 521. or prevented from selling, 522. EXPENSES. See Costs. EXPRESS COVENANTS; 25. by what words created, 27. word covenant not necessary, 28. on words of obligation, 28. order or direction, 29. in future tense unconnected with previous words of agreement, 30. exception or restriction, 31. 32. reservation, 32. recital, 33. proviso, 36. condition, 37. grant, &c, on sales of lands in York, 38. words of indemnity in marriage settlements, 39. construed more strictly than implied, 40. qualifies implied covenant, 45. otherwise on warranty on lease for life bywords dedi et concessi, 46. EXTENT, where forfeiture of lease, 418. EXTINGUISHMENT, covenants destroyed by, 585. FEE, stat. 32 Hen. 8. c. 34. does not extend to covenants made on conveyances in fee, 535. Index. (VS3 FELON, not entitled to the benefit of a covenant for renewal, 253. after attainder and forfeiture, chargeable on covenants in lease, 492. FEME COVERTE, cannot covenant, 112. except, perhaps, authorised by husband, 112. incapacity confined to the coverture, 113. marriage will not defeat previous covenant with a stranger, 113. surviving her husband, bound by a warranty on a fine, 157. not bound by his covenant that she shall levy a fine, 175. assignment to, unless husband refuse assent, good, 503. FIERI FACIAS, sale of lease under, no discharge of lessee from his covenants, 492. FINE, covenant to levy, circumstances requiring attention, 155. the parties by whom to be levied, 155. omission fatal, 155. not requisite that all parties should covenant, 156. husband covenants on behalf of wife, 156. lien should be kept distinct from the body of the co- venant, 156. form of the lien, 156. notice of her consent immaterial, 157. wife's refusal not sufficient to charge husband with a breach, if application made to her and not to him, 157. covenant that J. S. shall levy a fine, covenantor not ex- cused by insanity of J. S., 157. otherwise on a covenant to do all reasonable acts for fur- ther assurance, and a fine be required, 157. covenantor not bound to go before commissioners, 158. at whose costs to be levied, 158. of what term, 158. of the form of this part of the covenant, 159. in what court, 159. to whom the fine to be levied, 160. covenantee should sue out the writ of covenant, 160. the kind of fine to be levied, 160. should be levied with proclamations, 160. the parcels should be sufficient in quantity, 161. mode of describing them, 161, 3. where the covenant is the substantive deed, 161, 3. where it constitutes but part of the assurance, 161, 3. the declaratory clause; form of, 162. who may take advantage of, 164. heir, assignee, or devisee, of covenantee may take ad- vantage of, 164. covenant to levy, is a real covenant, 164. G34 Index. FINE — continued. covenant to levy — continued. who bound by : issue in tail not, 164. unless he do some act in confirmation, 164. of specific performance, 165. not decreed against husband to compel his wife, 165. not decreed against wife surviving, 1 75. may be required under a covenant for further assurance, 344. and must then be levied at costs of party benefited, where no provision respecting expenses, 351. FIRE, rent must be paid though premises burnt down, 197. landlord not bound to repair damage occasioned by, 178. 197. 267, 8. no relief in equity, 198. lessee cannot compel landlord to apply money received on his own insurance to rebuild, 203. covenants between landlord and tenant relative to repairs in case of, good, 273. lessor's covenant for quiet enjoyment does not bind him to re- build in case of, 329. See also Insure. Rent. Repair. FLOOD, rent must be paid though premises flooded, 198. lessee under covenant to repair must rebuild premises destroyed by, 275. FORFEITURE, no relief from, on account of breach of covenant to repair, ex- cept under special circumstances, 299. landlord may waive at election, 427. what amounts to a waiver, 428. one waiver not a bar to entry on future breaches, 428. equity will not compel discovery, whether lessee has assigned without license, unless landlord will waive forfeiture, 429. lord entering for, cannot sue under stat. 32 Hen. 8. c. 34. — 542. See also Equity. Insure. Rent. FORGERY, where no breach of a covenant that the party had done no act to incumber, 340. FORMER, signification of the word, 332. FRAUD, of lessor entitles lessee to relief in equity on covenant for re- newal, 261. may be replied to a plea of assignment, 505. evidence of, not receivable on plea of non assignavit, 505. See also Equity. FRAUDULENT ASSIGNMENT. See Assignee, div. 8. FRAUDULENT DEVISE. See Bond. Devisee. Im/e.v. 635 FURTHER ASSURANCE, covenant for, object of, 340. form of, 341. what a breach of, 342. meaning of term reasonable act, 342. how breach to be assigned, 342. what acts may be required, 343. if a bad title sold vendor must convey good one, if after acquired, 343. covenantee may require a fine, 344. or recovery, when, 344. or removal of incumbrances, 344. mortgagor not compellable to release his equity of redemp- tion, 344. nor mortgagee entitled to a warranty, 344. purchaser may require duplicate of conveyance, semb. 344. assignees of mortgagor, tenant in tail, afterwards becoming bankrupt, bound by his covenant for further assur- ance, 345. so heir of mortgagor bound, 345. usual covenants may be required under, 346. but not a warranty, 347. words of qualification usually added, 347. whether a covenant for production of title deeds can be re- quired under, 231. 348. on covenants to make such assurances as counsel shall advise, counsel must first advise, 349. who bound to do the first act, 350. at whose costs to be made, 351 . a variation in words only between covenant and deed pre- sented for execution, immaterial, 351. unlettered man may require deed to be read to him before execution, 352. specific performance of, 353. covenant for, runs with the land, 470. covenantor allowed reasonable time to make, 145. GAMING, covenants void, 581. GOD, covenants discharged by act of, See Discharge. GOOD RIGHT TO CONVEY, covenant for, form of, 310. nature of, 310. breach of, 310. eviction not necessary to constitute, 511. may be assigned in direct negative, 511. declaration need not show who entitled, 511. GOODS, covenanton aleaseof, will not bind assignee, although named, 473. (J36 Index. GOOD-WILL, doubtful whether specific performance of covenant for purchase of, 561. GRANT, words of, raise an implied covenant on grants of chattel interests, 47. p A tf> ?j Z2-. otherwise of freehold interests, 47. GRANTEE OF REVERSION. See Reversion. GROSS, covenant in, 69. See Collateral. HEIR, liability of, 448. must be named, 305. 449. and have assets by descent, 449. not bound by implied covenant, 41. 449. unless he himself oust termor, semb. 449. lands taken aliunde not available, 450. heir of heir liable, 450. right of action against, not defeated by his alienation over, semb. 452. plaintiff need not allege that heir had assets by descent, 452. heir may plead that he had none, 452. liable on general allegation of being assignee, 482. bound by a covenant to surrender copyholds, 154. rights of, entitled to the benefit of real covenants, 64. represents ancestor as to covenants relating to the inherit- ance, where not devised, 514. on covenant to enfeoff ancestor in fee, heir entitled to action, 514. heir may sue on covenants broken in ancestor's lifetime if no actual damage sustained by ancestor, 514. as on covenant for seisin and no disturbance of an- cestor, 515. or on covenant to levy a fine and no fine levied, and heir is evicted, 516. but not if ancestor evicted, 516. or on covenant to repair, if premises continue out of repair in heir's time, 516. heir should be included by name in covenant, 517. not absolutely necessary in all cases, 517. where he can sue without being named, 517. heir must show that ancestor had some estate, 517. 518. where ancestor tenant pur autre vie, 518. covenant extinguished by death of covenantor leaving co- venantee his heir, 585. See also Descent. Index. ( J37 HUSBAND AND WIFE. See Baron and Feme. HUSBANDRY, covenants relating to, run with the land, 467. IDIOTS cannot covenant, 107. IGNORANCE, not a sufficient ground to entitle covenantee to equitable re- lief, 262. ignorant man may require deed presented to him for execution under covenant for further assurance to be read to him, 352. See also Equity. IMPLIED COVENANT, construed less strictly than express, 40. heir not bound by, 41. 449. unless he himself oust termor, semb. 449. otherwise of executor, 41. 459. but his liability ceases with estate in respect of which covenant arose, 41. assignee bound by, semble, 42. does not extend to thing not in esse at time of demise, 45. qualified by express covenants, 45. otherwise on a warranty on lease for life by words dedi et con- cessi, 46. bond for performance generally, extends to, 46. 553. want of entry will not deprive lessee of remedy, 47. by what words raised, word demise, 46. not on demise of goods, 48. grant, 46. in chattel interests, 47. in freehold interests, 47. bargain and sell, 49. assign and transfer, 49, yielding and paying, 50. implied from the terms or object of the contract, 55. co-extensive with interest : joint if a joint interest ; several if a several interest, 118. but tortious entry of one lessor will support an action against him alone on, 119. assignee may take advantage of, 523. so may grantee of reversion at common law, 532. terminates with the estate in respect of which it was made, 459. lessee not liable on, after assignment over, 491. IMPOSSIBLE COVENANT, where void, 569. INCORPOREAL HEREDITAMENTS, may be the subject of covenants running with the land, 469. as on a covenant, by lessee of tithes not to let farmers have any part of tithes, 469. C38 Index. INCUMBER, trustees usually covenant that they have done no act to, 400. the like, of assignees of bankrupts, executors, and devisees in trust to sell, 401. INCUMBRANCES, covenant for indemnity against : form of, 330. object of, 331. what a breach of, 331. signification of word former, 332. term arrears of rent, 333. acts, 334. means, 334. default, 335. means, title, or procurement, 337. permitting and suffering, 338. knowing and being privy to, 338. removal of, may be required under covenant for further assur- ance, 344. whether covenant against, extends to protect against incum- brances of which purchaser has express notice, 387,8. INDEMNITY, covenant will not lie on words of indemnity to trustees in mar- riage settlements, 39. against incumbrances. See Incumbrances. to purchasers. See Application. covenants to indemnify against payment of rent and perform- ance of covenants : assignee of term usually enters into, 177. whether he be original or subsequent assignee, 178. executor is also entitled to, 179. assignees of bankrupts are not, 179. nor is bankrupt, 180. nor is owner of a mere equity of redemption, 180. nor is trustee for sale, 181. inability of purchaser to insist on covenants for title will not absolve him from covenanting to indemnify, 181. is a collateral covenant, 69. 181. relief in equity against bond to indemnify, 181. INDEPENDENT COVENANTS, 70. where the participle active used, 99. averment of performance not necessary, 106. See also Dependent Covenants. INFANT, cannot covenant although for his benefit, 111. cannot be sued on his apprenticeship deed, 111. except by the custom of London, 111. the infant's father or some friend usually covenants for him, 1 12. infancy of one does not discharge co-covenantor, 112. covenants with, valid, 586. Index. 639 INHERENT COVENANTS, 66. INJUNCTION, granted to restrain tenant from pulling down premises although there be a covenant to leave in repair, 296. no relief by way of, for landlord against one lessee, where land- lord has dispensed, in favor of one, with covenant en- tered into for benefit of all, 298. See Equity. INSANITY, covenantor not excused from performance on account of insanity of person for whose acts he covenanted, 157. INSOLVENT, freed from covenants if assignees accept lease, but not other- wise, 210. not entitled to benefit of covenant for renewal, semb. 252. INSOLVENT ACT, taking benefit of, a breach of covenant not to assign without license, 419. INSURE, covenant to, may refer to conditions in a distinct paper with- out stamp, seal, or signature, 7. forfeiture occasioned by breach of, not relieved in equity, 192. although lessee has expended large sums on premises, 193. when it runs with land, 183. if premises within bills of mortality, 183. 466. covenant should provide that money recovered on policy be applied to rebuilding premises, 188. need not particularly specify the insurance office, 189. what a breach of, 1 89. receipt of insurance money by landlord no plea to cove- nant for rent, 202. lessee cannot compel landlord to apply money on his own insurance to rebuild premises destroyed by fire, 203. INSURANCES, ILLEGAL, covenants for void, 581. INTAIL, stat. 32 Hen. 8. c. 34. does not extend to covenants made on gifts in tail, 535. INTENTION, covenants so expounded as to effectuate, 1 36. not to be collected from a single clause, but ex antecedentibus et consequcntibus, 137. INTOXICATION. See Drunkards. IRELAND, construction of covenants for renewal in, 233, n. ISLE OF ELY. See Ely. JOINT COVENANTS, 115. disadvantages of, 116. advantages of, 116. G40 Index. JOINT COVENANTS — continued. no particular form required, 117. by what words created, 117. ,>*.< where covenant implied, 118. construction of joint covenants in equity, 121. not considered as several in every case, 121. construed to be joint or several, as to covenantees, according to their interest, 123. construed to be joint, if interest joint, although the covenant in terms be several, or joint and several, 127. interest at first joint may become several, 129. persons to be joined as plaintiffs : all covenantees must join where interest joint, 131. nor can words of severalty relieve them, 131. if one only sues, the others living, defendant may demur, bring error, or move in arrest of judgment, 132. not enough to aver that the others did not seal, 132. executor of deceased joint covenantee derives no inter- est, 132. persons to be joined as defendants : all joint covenantors must be made defendants, 132. omission may be taken advantage of by plea in abatement and affidavit, 133. surviving covenantor incurs all liability, and discharges executor of deceased, 133. covenantee may recover in execution the whole sum against one, without regard to contribution, 133. covenant joint in terms, but executed by one only, but a sin- gle covenant, 133. JOINT AND SEVERAL COVENANTS, 115. disadvantages of, 116. advantages of, 117. no particular form required, 117. by what words created, 118. by two lessees of a joint interest does not survive ; each is lia- ble, 119. how far joint and several lien affects various covenants in same deed, 119. same words, as to covenantees, may for some purposes consti- tute joint, and for others, several covenant, 129. persons to be joined as defendants : all covenantors may be joined, or sued separately, 133. though one discharged by bankruptcy and certificate, others may be sued, 133. survivor or executor of the deceased may be sued, 133. two of three joint and several covenantees, all living, can- not be sued without the third, 134. if sued jointly, they cannot be sued separately, nor vice versa, 135. precedency of one suit may be pleaded in abatement of the other, 135. Indea'. G41 JUDGMENT, removal of, may be required under covenant for further assur- ance, 344. in action of covenant, 546. JURISDICTION. See Equity. KING, king's lessee by patent liable without sealing, 9. enabled to take advantage of covenants and conditions annexed to reversions, 527. See also Crown. LAND, covenants running with : remarks on the nature of, 460. covenants must affect the nature, quality, or value of the thing conveyed, independently of collateral circumstances,461. must be privity of estate between contracting parties, 461 . Mr. Sugden's observations hereon, 462. covenants should be made with owner of legal estate, 462. personal covenants can never run with, 69. covenants to levy fines run with, 164. the like of covenant to insure, when, 183. 466. to pay rent, 195. to produce for benefit of assignees of covenantee, 227. to renew, 251. to repair, 267. 466. for title, 305. to restrain the exercise of particular trades, 443. to lay out sum of money in repairs in case of fire, 443. relating to agriculture, 467. to inhabit demised house, 467. that lessee shall have estovers, 467. not to assign or underlet without li- cense, qu. 426. assignee may take advantage of, 523. See also Assignee. LANDLORD, seldom enters into covenant to repair, 267. covenant between him and tenant relative to repairs in case of fire, good, 273. not bound to repair without positive agreement, 273. not even in case of fire, 198. 273. although lessee discharged therefrom by special provision, 27 3. and although landlord receive money on his own insurance, 280. usually covenants to repair by custom of Norfolk, 296. so, by custom of the Isle of Ely, 440. covenant by, to repair in case of fire, not usual, 296. T T 042 lmk-.i . LAND-TAX, covenant for payment of: covenant to pay taxes generally includes land-tax, 21 1. agreement to prevent tenant from deducting land-tax must be explicit, 213. landlord pays land-tax in proportion to his rent, where premises improved in value, 216. tenant must deduct land-tax out of rent of current year, 219. bill will not lie in equity to recover payments which should have been deducted, 219. LAW, covenants void or discharged by, See Discharge ; Void. LEASE, after relief in equity from forfeiture for non-payment of rent, new lease not necessary, 208. subsisting, a breach of covenant for quiet enjoyment, 327. LEASEHOLDS, on assignment of, want of covenants for title will not relieve assignee from covenanting to indemnify against pay- ment of rent and performance of covenants, 181. do not pass to assignees of bankrupt by general assignment of commissioners, 506, See further Bankrupt ; Indemnity ; Insolvent. LESSEE, king's lessee by patent liable without sealing, 9. liable on covenants during term, 177. 194. not bound to rebuild in case of fire, except under his cove- nant, 273. holds by privity of estate, and on his covenant by privity of contract, 490. no act of his own can absolve him from it, 491 . bankrupt, how placed with regard to covenants in his lease, 493. not liable at suit of both grantor and grantee of reversion, 539. but liable at suit of grantee of reversion after lessee's assign- ment over, 539. See Contract ; Estate, privity of. LESSOR may sue lessee, or assignee, or both, 493, 4. but execution shall issue against one only, 494. LIABILITIES of covenantor, See Covenantor. of heir, See Heir. of devisee, See Devisee. of executor or administrator, See Executor. of assignee, See Assignee. LICENSE, covenant in restraint of assigning or underletting without : object of covenant, 404. distinction between voluntary and involuntary assignment 405. Index. G43 LICENSE — covenant in restraint of &c, without — continued. construed with much jealousy, 406. not binding on covenantor except in respect of Ins original estate, 411. what a breach of, 406. underlease, 406. evidence, 407. letting lodgings, 408. disposing of part of premises, 40;). parting with possession under agreement, 109 deposit of deeds, 410. advertisement for sale, 410. bequest, 412. prudence of obtaining license, 414. execution on warrant of attorney, 415. where given on purpose of having lease taken in ea cution, 417. extent, 418. bankruptcy, 418. practice to stipulate for determination of lease on bankruptcy, &c, 421. taking benefit of insolvent act, 4l!>. assignments by executors, &c, 42 1 . consequences of license once granted, 424. whether it runs with the land, 426. how difficulty may be obviated, 427. the kind of license required, 427. waiver of forfeiture, 427. what amounts to, 428. one waiver not a bar to entry on future breaches, 428. equity will not enforce a discovery whether lessee has as- signed without license, unless landlord will waive forfeiture, 429. of equitable relief against forfeiture for breach, 429. whether an usual covenant, 430. immaterial whether the words with usual covenants be in- troduced into agreement or not, 438. the word assigns, 438. the kind of property immaterial also, 439. unlesstheagreementreferstoparticularlocal usage, I ! I or usage with respect to particular property, 4 1 1 . who must be parties to bill against landlord to procure consent , 441. vendor bound to obtain lessor's license, 442. LIEN, object of, 4. how far a joint and several lien affects various covenant* in same deed, 119. first covenant extends to all, unless contrary intention, 120* See forms of Liens, in Appendix. T T 2 In dc a LIFE, statute 32 Hen. 8. c. 34, extends to covenants entered into by or with lessees for, 535. LIGHTNING, tenant under covenant to repair, bound to reinstate premises prostrated by, 274. LIMITATIONS, statutes of, do not affect actions of covenant, 547. 590. LIQUIDATED DAMAGES. a clause for, should be inserted in covenants for reference to arbitration, 149. LIVING, specific performance of covenant for resignation of, not de- creed, 560. LODGINGS, letting, no breach of covenant not to underlet, 408. LONDON, by custom of, covenant may be without specialty, 9. infant is liable on his covenant in apprenticeship deed, 111. LOTTERIES, covenants relating to, where void, 581. LUNATICS cannot covenant, 107. covenant good if made during lucid interval, 108. lease made by committee of, in his own name void. 575. MARRIAGE, will not defeat a previous covenant with a stranger, 1 13. covenants in restraint of, void, 570. suspension or discharge of covenant by intermarriage of cove- nanting parties, 598. MAXIMS, expressum facit taciturn cessare, 45. 381. verba chartarum fortius accipiuntur contra proferentem, 141 . lex neminem cogit ad vana seu inutilia peragenda, 245. 285. impotentia excusat legem, 285. 582. ignorantia juris non excusat, 352. modus et conventio vincunt legem, 404. quando aliquid prohibetur fieri ex directo, prohibetur et per ob- liquum, 411. qui sentit commodum, sentire debet et onus, 466. MEANS, signification of the word, 334. words means, title, or -procurement, 337. MERGER. See Extinguishment. MILL, covenant to do suit at lessor's mill runs with land, while owner- ship of mill and reversion in same person, 468. but not, if covenant, unconnected with demise, 477. Index. T>45 MISFEASANCE, distinguished from nonfeasance, 58. action lies on, 58. MISTAKE, covenant made under, binding at law, 26. See Equity. MONASTERIES, dissolution of, See Reversion. MORTGAGE, covenant to pay mortgage money is collateral, 69. so is a covenant by lessee with mortgagor to pay rent, 69. 461. court will not assist lessor to compel mortgagee not in posses- sion to discover whether lease assigned to him, 295. nor compel mortgagor to release his equity of redemption under covenant for further assurance, 344. nor is mortgagee entitled to a warranty, 344. assignees of mortgagor, tenant in tail, afterwards a bankrupt, bound by his covenant for further assurance, 345. so, heir of mortgagor bound, 345. on mortgage of leaseholds, mortgagee should take an under- lease, and not an assignment, to avoid liability on co- venants, 489. MURDER, covenant to commit void, 568. MUTUAL COVENANTS, cannot arise under deed-poll, 17. where the participle active used, 99. averment of performance not necessary, 106. See also Dependent Covenants. NEGATIVE COVENANTS, 19. will not deprive a man of independent rights, 1 9. not performed till impossible to be broken, 20. not construed as a condition precedent, 20. in affirmance of an affirmative covenant precedent, 20. additional to an affirmative covenant, 20. non-performance of, no answer to action for non -performance of affirmative covenant, 77, 8. NON-ENTITY, assignment to, invalid, 504. NONFEASANCE, distinguished from misfeasance, 58. action does not lie on, 58. NORFOLK, by custom of, landlord usually covenants to repair, 296. 440. NOTICE, assignee with notice of covenant bound to produce, semb. 228. and to renew, 255. whether action can be supported on a covenant to repair with- out giving notice, 290. G4G Index. NOTICE — continued. or before expiration of notice when given, 291 • effect of, on a covenant against incumbrances, 38$ OBLIGATION, covenant will lie on words of, 28. OBLIGATORY COVENANTS, 21. OCCUPATION, covenant to occupy demised premises runs with the land, 467. OFFICES, SALE OF, covenants for, void, 581. OUSTER. See Eviction. OUTLAWRY, incapacitates party from covenanting for his own benefit, 113, 114. of covenantor does not defeat covenantee of his claim, 114. covenant made during outlawry valid, 1 14. disabilities removed by reversal, or pardon, 114. process of, did not lie on covenant at common law, 543. remedied by statute, 543. of covenantee, where pleadable in bar, 587. PARCELS, in a fine should be sufficient in quantity, 160. mode of describing them, 161, 3. where covenant to levy fine is the substantive deed, 161 . where it constitutes but part of the assurance, 161. PAROL, license by, not sufficient, if license in writing required, 427. unless used as a snare, 427. agreement cannot be foundation of action of covenant, 544. nor be pleaded in bar, 544. assignee by, could take advantage of covenants before statute of frauds, 565. covenant cannot be dispensed with by, 591 . PARTIES, none but parties or privies could take advantage of covenant at common law, 527. covenants avoided by acts of, 599. See Covenantee ; Covenantor; Discharge. PARTIES TO BILL, bill for specific performance of covenant with A . , for benefit of B., A. must be a party, 562. PARTY-WALL, lessee under covenant to pay all taxes, rates, &c. not bound to pay for erecting party-wall, 215, 6. general covenant to repair does not bind covenantor to contri- bute to expense of erecting party-wall, semb. 270. unless party-walls be mentioned, 272. Indcv. 647 PENALTY. See Bond ; Liquidated Damages. PERFORMANCE must be according to intent, 139. it' covenant once performed, covenantor absolved, I 10. reasonable time allowed tor, 145. PERMIT AND SUFFER, signification of the term, 338. PERPETUITY, covenant in very long leases not to assign, open to objection of creating, 404. PERSONAL COVENANT, binds covenantor and representatives, 67. unless it be personal to covenantor only, 67. warranty annexed to a chattel is a personal covenant, 69. can never run with land, 69. PERSONAL WRONG, no breach of covenant for quiet enjoyment, 322. PLEADING. See Action ; Breach, Assignment of. POLICY. See Insure. POLL. See Deed-Poll. POORS' RATES, not within the term taxes, 222. nor within the words duties, charges, and taxes, 223. POST, all persons coming in in the post, are grantees of reversions within the stat. 32 Hen. 8. c. 34.-542. POWER, when sale under, covenant for seisin omitted, 309. person taking under execution of, is within covenant for quiet enjoyment against all claiming under vendor, 324. lessee under, liable at suit of remainder-man as assignee of re- version, under 32 Hen. 8. c. 34. — 542. PRYESENTI, COVENANT IN, action of covenant will not lie on, in general, 3. PRE-EMPTION, covenant to give a right of, is merely collateral, 479. PRISONER, assignment to a prisoner in the Fleet, good, 504. although assignor lend consideration money to be repaid to him, 504. or even give prisoner a premium to take lease, 504. PRIVITY. See Assignee; Contract; Estate. PRIVY, signification of term, knowing and being privy to, 338. PROCLAMATIONS, fine should be levied with, 160. otherwise it cannot operate as a bar by non-claim, 160. PROCUREMENT, signification of the word, 337. 048 Index. PRODUCTION, COVENANTS FOR, principle on which they may he required, 224. are real covenants, 227. run with land for benefit of assignees of covenantee, 227. but liability does not extend to covenantor's assignees, 227. unless, perhaps, on the ground of notice, 227. memorandum of covenant should be indorsed on covenantor's purchase deed, 228. covenantor usually procures his vendee to enter into, 228. covenantor liable to distinct actions by purchasers of portions of estate from covenantee, 229. assignees of bankrupt must covenant, 229. liability should be confined to the period of their being assignees, 229. and be made determinable on their procuring their purchaser to covenant, 230. without covenant for, purchaser not bound to complete, 230. whether covenant for production compellable under covenant for further assurance, 231. 348. covenants for, are constructive notice, 231. 348. should be by separate deed, 231. 348. expense of, 232. covenantee becoming possessed of deeds, not bound to give them up, 232. PROMISE, not sufficient to support an action of covenant, 316. PROPERTY TAX, covenants in contravention of acts, void, 220. consequences of omission to deduct, 222. covenant to pay, where upheld, 579. PROVISO, covenant will lie on words of, 36. See also Condition. PUBLIC-HOUSE, when a breach of covenant not to carry on particular trades, 445. doubtful whether covenant by lessee of, to buy beer of lessors, will bind assignee, although named, 472. doubtful whether specific performance of covenant for purchase of good-will of, 561 . PURCHASE MONEY, no equity to decree restitution of, on eviction, 355. relief, if money not paid, 355. See also Application. QUALIFIED COVENANTS. See Title, Covenants for. QULET ENJOYMENT, COVENANT FOR, express covenant for, arises on the words, grant, bargain, and sell, on sales of lands in the East, North, and West Ridings of Yorkshire, 38, 9. 306. object of, 312. form of, 312. Index. 649 QUIET ENJOYMENT, COVENANT FOR— continued. general covenant for, extends to lawful evictions only, 313. reasons why, 314,5. covenant against particular person by name, 317. assignment of breach, 318. entry must be made under assumption of title, 3 1 9. mere personal wrongs no breach, 322. unless for a collateral purpose, 323. covenants for, are usually qualified, 323. person taking under power within covenant, 324. what a breach of : suit in equity, 322. actual molestation, or prohibition of enjoyment necessary, 326. subsisting lease a breach, 327. forbidding tenant to pay rent, no breach, 329. whether by covenantor or his servant immaterial, 329. in what terms breach to be assigned where eviction has taken place, 328. does not oblige lessor to rebuild in case of fire, 329. by trustees, where set aside in equity, 329. runs with land, 470. RATES. See Church Rates ; Poors' 1 Rates. REAL COVENANT, defined, 60. must relate to the realty, 60. whether real, (properly so called,) or chattel interest in realty, 60. assignee entitled to the benefit of, at common law, 63. the like of heir and executor, 64. covenant to levy fine is a real covenant, 60. 165. See further, Assignee; Land, covenants running with. REASONABLE ACT, signification of the term, 342. 157, 8. RECITAL, covenant will lie on words of, 33. may be qualified by, 34. where repugnant, 35. RECOVERY, may be required under covenant for further assurance, when, 344. REDDENDUM, implied covenant raised by, 50. doubtful, on lease for life, 55. REDEMPTION, equity of. See Equity of Redemption ; Mortgage. RE-ENTRY. See Entry. REFERENCE TO ARBITRATION. See Arbitration. REGISTRY ACTS, covenant will lie under these acts, on words, grant, bargain, and sell, in deeds on sales of lands in York, &c, 38,9. 306. C50 Index. RELEASE, of covenants will release bond for performance of, 554. covenant distinguished from, 593. See also Discharge. RELIEF. See Equity. REMAINDER-MAN, may sue as assignee of reversion, under 32 Hen. 8. c.34., on covenants entered into by lessee under a power, 542. RENEWAL, covenant for, construction of, same in all courts, 233. construction of in Ireland, 233. n. courts in England lean against perpetual renewals, 233, 4. the words under the same covenants, do not imply a co- venant for perpetual renewal, 237, et seq. construed by intention and not by acts of parties, 240. what a breach or performance of, 245. corporations and charitable foundations cannot by cove- nants for renewal give lessee an interest exceeding limits allowed them by law, 246. specific perfonnance for perpetual renewal, decreed where intention evident, 248. on covenant to renew without naming period, court will decree a lease for twenty-one years, 250. executors entitled to, though not named, 251. runs with the land, 251. assignee entitled to benefit of, 251. assignees of bankrupt not entitled to, unless they enter into usual covenants, 251. their assignee entitled to, 251. insolvent not entitled to, semb. 252. nor felon, 253. nor tenant, where landlord has a right of re-entry for co- venants broken, 253. to enforce specific performance some consideration should spring from lessee, 254. purchaser with notice of covenant bound to renew, 255. of relief in equity for covenantee, on his omission to claim renewal at appointed time, 257. equity will not aid if tenant guilty of gross laches, 258. will relieve if lessor guilty of fraud, 261. or in case of accident or misfortune, 261. but not in case of mere ignorance, 262. surrender of underleases not necessary, 263, 4. expenses of, 264. runs with the land, 470. RENT, covenant to pay, object and advantages of, 194, 5. Index. 031 KENT — covenant to pay — continued. lessee liable on (luring term, 194. runs with land, 195. construction of particular cases, 195, 6. eviction by title, or by landlord, suspends covenant, 197. and may be pleaded in bar, 197. lessee must pay rent though premises burnt down, &c. 19' if landlord bound to rebuild, no plea to action for rent, 198. where premises burnt before lessee's entry, 198. no relief in equity though burnt down, 198, et seq. 282. even though lessee offer to surrender lease, 201. and landlord has insured and received insurance money, 202. 283. covenant should contain a clause of exemption from pay- ment of rent in case of fire, 204. relief at law on forfeiture for breach, 204. regulated by act of parliament, 204. relief in equity on forfeiture for breach, 205. regulated by statute, 206. not withheld, though other covenants broken, 208. no new lease now necessary, 208. lessor's default in paying rent, whereby his under-tenant is evicted, is a breach of covenant for quiet enjoyment, 338. signification of the words arrears of rent, 333. runs with land, 468. void, where no estate passes, 575. for covenants to indemnify against payment of rent, See Indemnity. RENT-CHARGE, covenant to pay is collateral, 475. REPAIR, covenant to : tenant's liability usually limited by, 267. runs with the land, 267. landlord seldom enters into, 267. extends to buildings erected by tenant, 268. general covenant will not bind covenantor to contribute to expense of erecting party-wall, semb. 270. unless party-walls be mentioned, 272. lessee not bound to repair in case of fire, except under his covenant, 273. must rebuild, if premises burnt down, 188. 274. or destroyed by flood, tempest, lightning, or enemies, 275. usual to "insert a clause of exception against accidents by fire, &c, 275. butthis clause will notbind landlord to repair, 198.275. tenant has no equity to compel landlord to repair premises destroyed by fire, &c, 276, et seq. although landlord receive money on bis own insurance, 280. 65? Index. *•• REPAIR — covenant to — continued. party holding over, liable to covenants in lease applicable to his new situation, 283. usage is to declare in assumpsit, 283, 4. covenant would not lie, 284. what a breach of, 284. where occasioned by act of God, 284. of party, 284. costs incurred by lessee in defending action for not repairing may be recovered against under-lessee on his co- venant, 287. action may be brought when premises out of repair, 207, 8. unless the covenant be to leave in repair, 289. whether action can be supported on a covenant to repair without giving notice, 290. or within period prescribed by notice when given, 291. under-lessee liable to, in equity, where first lessee dies insolvent, semb. 295. although there be a covenant to leave in repair, injunction will be granted to restrain tenants from pulling down premises, 296. specific performance of, not decreed, 293. covenant by landlord to repair in case of fire, not usual, 296. relief from forfeiture on account of breach not granted, except under special circumstances, 299. on covenant to lay out a sum in repairing within a given time, 301. where premises must immediately after be pulled down, 303. no relief where tenant's conduct gross or ruinous, 303. no relief in equity where tenant on landlord's requisition refuses to repair, 303. damages recoverable toties quoties, 311. _ by custom of Norfolk, and of Isle of Ely, landlord usually^ covenants to repair, 296. 440. covenant to, runs with land, 466. so, a covenant to lay out a sum of money in repairing in case of fire, 466. on a covenant to insure for a certain sum, covenantor's li- ability on his covenant to repair, is not confined to that sum, 187. RESERVATION, covenant will not lie on words of, 32. RESIGNATION, specific performance of covenant for resignation of living not decreed, 560. RESTRAINING STATUTES, operation of, on covenants for renewal, 247. RESTRICTION, covenant will lie on words of, 31. '" Index. G53 REVERSIONS, grantees of, considered as strangers at common law, 527. could only bring debt or distrain, 527. by dissolution of monasteries and abbeys much land vested in crown, 527. crown enabled to take advantage of covenants annexed to, 527. operation of statute 32 Hen. 8. c. 34. — 528, et seq. on implied covenant grantee of reversion could sue at common law, 41.532. examples, 532. statute transferred privity of contract, 533. gave mutuality of remedy for and against grantees, 533. has no operation on collateral covenants, 534. construction of statute, 32 Hen. 8. c. 34. — 534. extends to grantee of reversion of subject, 535. and to successors of king, 535. to covenants made by or with lessee for years or life, 535. but not on conveyances in fee or tail, 535. to grantee of reversion of part of lands, 535. part of estate in reversion, 536. reversion of copyholds, 537. grantee of, cannot sue for covenant broken before assignment to him, 538. unless a continuing breach in his time, 538. but right of action once vested, not defeated by assignment, 538. both grantor and grantee cannot sue lessee, 539. grantor cannot sue for breach committed after his grant, semb. 539. grantee of reversion may sue lessee after lessee's assignment, 539. should come in under original estate, 541. of the lord entering for escheat or forfeiture, 542. remainder man, where lease made under a power, 542. persons coming in in the post, 542. bargainee of reversion under bargain and sale, 542. . REVOCATION. See Will. RIEN IN ARRERE, good plea to debt for rent : not to covenant, 545. RIGHTS, of covenantee, See Covenantee. of heir, See Heir. of devisee, See Devisee. of executor or administrator, See Executor. of assignee, See Assignee. RIGHT TO CONVEY. See Good Right to convey. 654 liukw. SALE. See Trustees ; Devisees. SATISFACTION, plea of, 455. SCHOOL, is a business within a covenant not to carry on business, 443. SEISIN, COVENANT FOR, express covenant for, arises on the words, grant, bargain, and sell, on sales of lands in the East, North, and West ridings of Yorkshire, 38, 9. nature of, 306. form of, 306. breach of, 307. to what premises it extends, 308. breach in direct negative good, 308. improperly called synonymous with covenant for good right to convey, 309. omitted where brevity or economy an object, 309. or when sale under a power, 309. or on conveyance to tenant to praecipe, &c, 309. so long as covenantor not seised there is a continuing breach, 515. See also Title, Covenants for. SETTLEMENTS, (MARRIAGE) covenant will not lie on words of indemnity to trustees in, 39. SEVERAL COVENANTS, defined, 115. same as distinct covenants on same parchment, 116. advantages of, 116. seldom that trustees enter into any other, 116. no particular form required, 117. where the covenant is implied, 118. persons to be joined as defendants, 132. action against several covenantors jointly is bad, 132. covenant joint in terms but executed by one covenantoi only operates as his single covenant, 133. covenants construed as to covenantees, to be joint or several, according to their interests, 123. although joint in terms, several if interests several, 123. interest at first joint may become several, 129. persons to be joined as plaintiffs where the interest is several, 130. where no express contract with all, they must sue sepa- rately, 130. where contract with them jointly and their interest is several, they may sue jointly or severally, 130. two of three may sue without the third, 130. executor or administrator stands in place of deceased, 131 . SHIP, covenant to pay money on mortgage of, upheld, though transfer of ship void for want of registration, 580. SIMONY, covenants connected with, void, 581. Index. 656 SMUGGLING, covenants relating to, void, 581. SPECIFIC PERFORMANCE, with respect to a covenant for reference to arbitration, lis. to surrender copyholds, 153. to levy fine, 1 65. for perpetual renewal, 248. to repair, 293. to build, 297. unless it be to build in uniform ity, 298. for further assurance, 353. unless estate bought of expect- ant heir at an underva- lue, 353. or original conveyance itself void, 353. to enforce specific performance of a covenant to renew, some consideration should spring from lessee, 254. doubtful whether it would be decreed where purchaser ignorant of fact, that no one would covenant for title, 398. mode of obviating the difficulty, 399. See also Equity. STAND SEISED, covenant to, action of covenant will not lie on, 3. STATUTE, covenants void by, 581. STATUTE- M ERC H A NT, assignee by, bound by, and may take advantage of covenants, 481. 525. STATUTE-STAPLE, assignee by, bound by, and may take advantage of covenants, 481. 525. STATUTES. See Table of, at end of Table of Cases. STIPULATED DAMAGES. See Liquidated Damages. STOCK-JOBBING, covenants relating to, void, 581. STORMS. See Tempest. STRANGERS, effect of acts of strangers on covenants, G01 . SUBJECT, stat. 32 Hen. 8. c. 34, extends to grantees of reversions of sub- ject, as well as of king, 534, 5. SUIT, covenant to forbear to sue valid, 150. may be pleaded in bar, 150. covenant by owner of land in a parish to concur in defending suits brought by rector for tithes does not run with the land, 479. covenant not to sue one of several co-obligors, release of all in equity, qu. 594. in chancery is a breach of covenant for quiet enjoyment, 32 ' unless it be for a collateral purpose, 323. 65() Index. SURPRISE. See Equity. SURRENDER, of underleases not necessary on covenant for renewal, 263,4. See also Copyholds. SUSPENSION, of covenant by intermarriage of covenantor and covenantee, 598. TAIL. See Intail. TAXES. See Land-tax ; Property -Tax. TEMPEST, lessee under covenant to repair bound to rebuild if premises overturned by tempest, 275. TENANT, who has committed waste, &c, landlord having a right of re- entry, not entitled to benefit of a covenant for renewal, 253. See also Landlord; Lessee. TENANT AT WILL, not bound to rebuild premises burnt down, 266. TENANT FROM YEAR TO YEAR, bound to make fair and tenantable repairs, 266. not to put on new roof, 266. TENDErt, where tantamount to performance, 105. TESTATOR. See Devisee; Executor; Heir. TIMBER, injunction to restrain the cutting down, 563. 565. TITHES, covenant by lessee of, not to let farmers have any part of tithes, runs with land, 469. TITLE, covenants for, express covenants for seisin and quiet enjoyment arise on the words, grant, bargain, and sell, on sales of lands in the East, North, and West Ridings of Yorkshire, 38, 9. want of, will not relieve assignee of leaseholds from cove- nanting for indemnity against payment of rent and performance of covenants, 181. object of, 384. executor liable on, 305. so, heir where named, with assets, 305. no difference whether estate in fee or for years, 305. usual covenants for, 305. See Seisin; Good Right to convey; Quiet Enjoy- ment; Incumbrances: Further Assurance. warranty formerly given on conveyances in fee, 304. superseded by covenants for title, 304. are real, and run with the land, 305. assignee not named may take advantage of, 305. on conveyance to uses, with whom covenants should be entered into, 309. Index. G57 TITLE — covenants for — continued. of equitable relief, 354. covenantor relieved on his refunding purchase money interest, 354. no equity to decree restitution of purchase money on eviction not within terms of covenant, 355. but vendee relieved if purchase money not paid, 355. absolute or qualified : absolute extend to all lawful interruptions, 356. covenants are usually qualified, 356. in what cases a preceding qualified covenant will limit a subsequent general covenant, 358. to admit qualifying language of one to be applied to another, covenants must be of the same im- port, 364. in what cases a subsequent limited covenant will qua- lify a preceding general covenant, 369. against whose acts vendor bound to covenant, 383. where vendor a purchaser for valuable consideration and obtained covenants for title, 385. principle on which qualification depends, 385. where title known to be defective, 387. indemnity should be by separate deed, 387. where vendor not a purchaser for valuable considera- tion, 388. covenants for title improper in voluntary convey- ance, 388. no covenants in sales under the crown, 388. how far cestuis que trust bound to covenant, 388. 389. doubtful whether specific performance would be decreed where purchaser ignorant of fact that no one would covenant for title, 398. mode of obviating difficulty, 399. who bound to enter into, 399. as to cestuis que trust, 400. bankrupts, 401. assignees, 40 1 . executors, 401. devisees in trust, 401. absence of covenants in former conveyances no objection to title, 403. run with the land, 470. TRADE, covenants restraining the exercise of particular : run with the land, 443. 468. schoolmaster's business within covenant, 443. chandler's shop, 444. public-house, 445. landlord's silent acquiescence in lessee's carrying on one trade does not enable him to carry on any other, 446. U U 658 Index. TRADE— continued. court will grant injunction to restrain the carrying on of cer- tain trades, 564. covenants in restraint of, generally, void, 571. TRUST, may arise on a covenant in favor of a purchaser, 354. TRUSTEES, covenant will not lie on words of indemnity to trustees in mar- riage settlements, 39. seldom covenant otherwise than severally, 116. for sale of leaseholds not entitled to covenant for indemnity against payment of rent and performance of cove- nants, 181. covenants for quiet enjoyment, where set aside in equity, 329. covenant only that they have done no act to incumber, 401. UNDER-LEASE, covenants in restraint of, without license. See License. surrender of, not necessary on covenants for renewal, 263, 4. not a breach of a covenant not to assign without license, 406. mortgagee of leaseholds should take, 489. UNDER-LESSEE, is not an assignee and liable to covenants, 485. liable to repair if first lessee dies insolvent, semb. 295. 485. on covenant by one for himself and underlessees, all assuming that character, mediately or immediately, within the covenant, 486. assignees of bankrupt releasing bankrupt's under-tenant will not render themselves liable to the covenants in bank- rupt's lease, 508. OSES, on conveyance to, with whom covenants for title should be en- tered into, 309. USUAL COVENANTS, defined, 430. construed to be usual all over England, 296. 440. covenant by landlord to rebuild in case of fire is not usual, 296. nor is a covenant that lease shall determine on lessee's bank- ruptcy, 421. nor is a covenant restraining assigning or underletting without license, 430. usual for landlord in Isle of Ely, and Norfolk, to covenant to re- pair, 296. 440. covenants for title, what are, 305. may be required under a covenant for further assurance, 346. USURY, covenants founded in, void, 581. Index. <>59 VOID COVENANTS, at common law : for want of legal capacity, 568. to do an act malum in se, 568. to kill a man, 568. to commit a breach of the peace, 568. where fraudulent, 569. irreligious or immoral, 569. indecent, 569. impossible, 569. exception, 569. opposed to public policy, 570. in restraint of marriage, 570. trade, 571. encouragement of litigation, or preven- tion of justice, 573. where deed or estate on which they depend is void, 573. examples, 574. where covenants distinct, not discharged, 577. examples, 577. by statute, 581. bribery, 581. gaming, 581. illegal insurances, 581. lotteries, 581. sales of offices, 581. simony, 581. smuggling, 581. stock-jobbing, 581. usury, 581. wagers, 581. VOLUNTARY CONVEYANCE, covenants for title very improper in, 388. WAGERS, covenants relating to, where void, 581. WAIVER OF FORFEITURE. See Forfeiture. WARRANT OF ATTORNEY. See Execution. WARRANTY, created by the word dedi, 48. annexed to a chattel is a personal covenant, 69. anciently annexed to conveyances in fee, 304. superseded by covenants for title, 304. cannot be required under a covenant for further assurance, 344. 347. nor expected on a conveyance, 383. heir must be named to take advantage of, 518. WASTE. See Fire ; Repair. WATER, covenant to supply demised premises with, runs with land. 470. C60 Index. WEAKNESS OF MIND, not of" itself sufficient to invalidate covenant, 108. unless stratagem be resorted to, 108. WILL, covenant to surrender copyholds amounts to an equitable revo- cation, 154. See also Devisee ; Executor ; Heir. WILL, TENANT AT. See Tenant at Will. WORDS, signification of, former, 332. arrears, 333. acts, means, 334. default, 334. means, title, or procurement, 337. permitting and suffering, 338. knowing of and being privy to, 338. reasonable act, 342. WRIT OF COVENANT, fallen into disuse, 543. YEARS, stat. 32 Hen. 8. c. 34. extends to covenants entered into by or with lessees for, 535. YEAR TO YEAR. See Tenant from. YIELDING AND PAYING, implied covenant raised by these words, 50. YORK, on sales of lands in, express covenant arises on words, grant, bargain, and sell, 38. 306. London : Printed l*y Littlewood and Co, Old Bailey. LAW LIBRARY UNITE!: ALIFORNIA # * ^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 856 735 6