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CHAP. XIII.

COVENANT.

I. Of the Action for Breach of Covenant.
II. Of the Exposition of Covenants.
III. Of the different Kinds of Covenants :
1. Express, and herein of express Covenants running with the

Land.
2. Implied.
3. Joint and Several.
4. Void and Illegal.
5. For quiet Enjoyment.

6. Not to assign without Licence. IV. By whom the Action of Covenant may be main

tained:

1. Heir.
2. Executor.

3. Assignee. V. Against whom the Action of Covenant may be maintained :

1. Heir.
2. Executor.

3. Assignee. VI. Of the Declaration, and herein of dependent Covenants,

Conditions precedent, and independent Covenants.
VII. Of the Pleadings :

1. Accord and Satisfaction.
2. Eviction.
3. Infancy.
4. Limitations, Statute of.
5. Nil habuit in tenementis.

6. Non est factum.
7. Non infregit conventionem.
8. Payment of Money into Court.
9. Performance.
10. Release.

11. Set off.
VIII. Evidence.
I X. DamagesJudgment.

I. Of the Action for Breach of Covenant.

COVENANTS are of two kinds,

1. Express.

2. Implied, or covenants in law. An express covenant is an agreement entered into by deed indented or deed poll, between two or more persons, for the performance of certain acts, or for the forbearance to do certain acts.

An implied covenant, or covenant in law, is an agreement raised by implication of law between two or more persons in a deed indented or deed poll, from certain technical expressions used therein.

For the violation of agreements of this kind (1) the law has provided a remedy by action of covenant, wherein the party injured may recover damages (2) in proportion to the loss sustained. A party bringing covenant on a deed poll

(1) In F. N. B. 4to. Ed. 343. A. it is said that in London a man shall have a writ of covenant without a deed, for covenant broken, and it is so said by Vavasor, Serjt. in 22 Edw. 4. 2. a. cited in Comyn's Dig. London, N. 1. who refers to Priv. Lon. 149. in support of the same position.

(2) Where it is necessary to enforce the performance of any agreement in specie, as the conveyance of land, execution of deeds, &c. or what is termed a specific performance, application must be made to a court of equity; for in the action of covenant damages only for the non-performance can be recovered.

must besnamed therein a ; for where, upon oyer of the deed poll, it appeared, that the defendant promised to do a certain act, without saying that he promised the plaintiff, it was holden that an action would not lie. Covenant will lie on letters patent, although there is not any counterpart sealed by the lessee, who is to be charged b. If A., for a valuable consideration, promises, by deed, not to do a certain act, an action of covenant may be maintained, for the breach of such promise: but an action on the case will not lie. As where A. recovered a debt against B. and B. paid the condemnation money to A.', whereupon A. by deed, released all actions, executions, &c. to B. and in the same deed promised to discharge all executions against B. upon the same judgment, and afterwards sued out execution thereon: the court were of opinion, that the promise being by deed, B.'s remedy was by an action of covenant, and not an assumpsit (3).

& Green v. Horne, Salk. 197. Comb.

219, S. C. b Bret v. Cumberland, Cro. Jac. 399.

521, fully stated, post.

c Bennus v. Guyldley, Cro. Jac. 505.

S. C. and S. P. by the name of Bemishe v. Hildersley, said to have been adjudged, 1. R. A. 517. (A) pl. 3.

(3) Although it is a general rule that assumpsit will not lie, where there is a remedy of a higher nature *, yet there are some exceptions to this rule; as where two persons entered into articles of partnership for a term of years, and the deed contained a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership; and they dissolved the partnership before the years were expired, and accounted together, and struck a balance, which was in favour of the plaintiff, including several items not connected with the partnership, and the defendant promised to pay it ; it was holden, that assumpsit would lie on such express promise. And Buller, J. observed, that if no other articles had been introduced into the account, but those relating to the partnership, he should still have been of opinion, that assumpsit might have been maintained; for the question then would have been, whether a previous partnership being dissolved, and an account settled, was or was not, in point of law, a sufficient consideration for a promise. He had no difficulty in saying, that it was. Foster v. Allanson, 2 T. R. 479. See Rackstraw v. Imber, Holt's N. P. C. 368. and Fromont v. Coupland, 2 Bingh. 170. A stronger exception, however, to the general rule above mentioned, will be found in the case of Nurse v. Craig, ante, p. 273. In Burnet v. Lynch, 8 D. & R. 368. (recognized by Park and Gaselee, Js. in Hancock v. Caffyn, 8 Bingh. 368.) it was holden, that case (not covenant) lay by the assignor against the assignee of a lease assigned by deed poll upon his implied duty to An action of covenant has been holden not within the stat. 3 and 4 W. and M. c. 14. d which makes the devisee chargeable jointly with the heir for the debts of his testator in respect of lands devised to him: the remedy there given is confined to the action of debt. Upon a covenant to repair and keep in repair, an action may be maintained e, pending the term, if the premises are out of repair.

* Bulstrode v. Gilburn, Str. 1027.

II. Of the Exposition of Covenants.

COVENANTS are to be construed according to the obvious intention of the parties, as collected from the whole context of the instrument, ex antecedentibus et consequentibus, and according to the reasonable sense of the words. If there be any ambiguity, then such construction shall be made as is most strong against the covenantor (4); for he might have expressed himself more clearly (5). It is immaterial in what part of a deed any particular covenant is inserted 8 ; for, in the construction of it, the whole deed must be taken into consideration, in order to discover the meaning of the parties; as where, in an indenture of a lease of a colliery 5, two lessees covenanted jointly and severally in manner following, viz. &c. here followed a number of covenants in respect to

d Wilson v. Knubley, 7 East, 128. f Plowd. 329. cited by Ellenborough,

But this statute is now repealed by C. J. Iggulden v. May. 7 East, 241. stat. 11 G. 4. and I W. 4. c. 47. s. l. g Per Buller, J. 5 T. R. 526. except as to persons who died before h D. of Northumberland v. Ward Er16 July, 1830.

rington, 5 T. R. 523. Copland v. e Luxmore v. Robson, 1 B. & A. 584. Laporte and Reynolds, 3 Ad. & Ell.

517. S. P.

perform the covenant in the original lease, although the assignor had, by the assignment, parted with all his interest; and although assumpsit might lie, that case was the better form of action for the injury sustained by the assignor, in consequence of the assignee's breaches of covenant.

(4) See the opinion of Sir J. Mansfield, C. J. in Flint v. Brandon, 1 Bos. & Pul. N. R. 78.

(5) In like manner, where the words of the grant are doubtful, they are to be construed in favour of the grantee. This general principle has been applied to the construction of leases; hence it has been holden, that under a lease for fourteen or seven years, the lessee only has the option of determining

it at the end of the first seven years. Doe d. Webb v. Dixon, 9 East, 15. in which the authority of Dann v. Spurrier, 3 Bos. and Pul. 399. 442. was recognized.

working of the colliery, wherein the lessees covenanted jointly and severally; then followed a covenant, that the monies appearing to be due should be accounted for and paid by the lessees, their executors, &c. (not saying, “and each of them”); it was holden by the court (absente Kenyon, C. J.) that the general words, at the beginning of the covenants by the lessees, “jointly and severally, &c. in the manner following," according to the general rules of construction, extended to all the subsequent covenants on the part of the lessees throughout the deed, there not being any thing in the nature of the subject to restrain those words to the former part of the lease. In conformity to the rules before laid down for the construction of covenants, and in support of the apparent intention of the parties, covenants in large and general terms have been frequently narrowed and confined : As where A. leased a manor to B. for years, excepting all woods, great trees, timber trees, and underwood', &c. and covenanted with the lessee, that he might take fire-bote, super dicta præmissa, it was holden, that the lessee could not take fire-bote in a close of wood, parcel of the manor, because, by the exception of the wood, the soil thereof was excepted; and the words super præmissa should be intended of such things only as were demised. It was admitted, however, that, by the covenant, the lessee was entitled to take the wood upon the other lands, for though the wood was excepted, yet the land was demised.

The defendant sold the plaintiff a lease k for years of a manor, and entered into a bond, with a condition that he would not do, nor had done, any act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor, or any other person ; it was holden, that the condition was confined to acts done or to be done by the vendor, on the ground of the latter words being referable to the former. So where in covenant against the executors of J. W., the declaration stated, that J. W. by indenture, granted land, &c. to the plaintiff in fee, and warranted the land, &c. against himself and his heirs, and covenanted that he was, notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee simple, and that he had i Cage v. Paxlin, I Leon. 116, cited S. C. To this class of cases where

by Ellenborough, C. J. 7 East, 241. general covenants have been holden k Broughton v. Conway, Moor, 58. to be 'qualified, may be added that

cited by Lord Ellenborough, C. J. in of Milner v. Horton, M'Clel. 647. Gale v. Reed, 8 East, 89.

although its authority has been some1 Browning v. Wright, 2 Bos. and Pul. what shaken in Smith v. Compton.

13. See also foord v. Wilson, 2 3 B. & Ad. 199. Moore, (C. P. 592). 8 Taunt. 543.

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