Consistently, therfore, with that case, and with every other that I am aware of, we are warranted in giving effect to the general words of the covenant for quiet enjoyment; and which are entitled to more weight in this case, inasmuch as they immediately follow and enlarge the special words of covenant against disturbance by the grantors themselves; and to restrain the generality of these words, thus immediately preceded by express words of a narrower import, would be a much stronger thing than to restrain words of like generality by an implied qualification arising out of another covenant where no such general words occurred. The person using the general words, could not forget that he had immediately before used special words of a narrower extent. If the covenant containing both the special and general words stood by itself, there would be no pretence for refusing effect to the larger words; and if this could not be done in favour of express words of a narrower import in the same covenant, I cannot possibly understand upon what ground it should be done in favour of implied words of narrower import, which occur in another separate covenant, addressed, as has been before said, to a distinct object."

Where A. by indenture°, in consideration of a certain sum, in nature of a fine, and of a yearly rent, demised land for twenty-one years, and covenanted, at the end of eighteen years of the term, or before, on request of the lessee, to grant a new lease of the premises "for the like fine, for the like term of twenty-one years, at the like yearly rent, with all covenants as in that indenture were contained;" it was holden, that this covenant was satisfied by a tender of a new lease for twenty-one years, containing all the former covenants, except the covenant for future renewal.

In covenant, the plaintiff declared upon an indenture, whereby the defendant demised to the plaintiff, for a term of years, certain parts of a messuage then lately parted off from the part occupied by the defendant, with certain easements belonging to the same, and a portion of an adjoining yard; and the defendant covenanted that he would permit the lessee (the plaintiff,) to have the use of the pump in the said yard jointly with the defendant, whilst the same should remain there, paying half the expenses of keeping it in repair. The plaintiff assigned for breach, that during the continuance of the lease, the defendant without reasonable cause, and in

o Iggulden v. May, 7 East, 237, af- p Rhodes v. Bullard, 7 East, 116. firmed on error, in Exch. Chr. 2 N. R.

449.

order to injure the plaintiff, took away the pump, although plaintiff was willing to have paid half the expenses of keeping the same in repair. On demurrer it was holden, that the breach was ill assigned; for the use (6) of the pump was not a specific subject of the demise; and by the introduction of the words, "whilst the same should remain there," it appeared that the lessor meant to reserve to himself the liberty of removing the pump, from whatever capricious or unreasonable motive he might do so; and that it was not inconsistent with the stipulation, that the lessee should pay half the expenses of repair, whilst the pump remained on the demised premises.

Lessee covenanted, that he and assigns would insure the demised premises and keep them insured during the term, and deposit the policy with the lessor; it was holden, that the true construction of this covenant was, not that the lessee should effect one policy, and keep that policy on foot, but that the lessee and his assigns, should always keep the premises insured by some policy or another, and that it was a breach, if they were uninsured at any one time, and a continuing breach for any portion of time that they remained uninsured. Wherer a lessee of a house and garden for term of years covenanted with the lessor not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business, &c. without the license of the lessor, &c., and afterwards without the license of the lessor assigned the lease to a schoolmaster, who carried on his business in the house and premises, it was holden that the assignment was a breach of this covenant. But where the covenants was not to exercise particular trades or businesses specified, "or any offensive trade," it was holden, that it was not a trade to use the house as a lunatic asylum; the word trade in this covenant being applicable only to a business conducted by buying and selling. Where in covenantt for the further yearly rent stipulated for in case of converting pasture into tillage, the defendant pleaded that the plaintiff accepted the original rent as and for the rent due,

Doe d. Flower v. Peck, 1 B. and Ad. 428.

r Doe d. Bish v. Keeling, 1 M. & S. 95.

s Doe d. Wetherell v. Bird, 2 Ad. and Ell. 161.

t Denton v. Richmond, 3 Tyr. 630. 1 Cr. and M. 734. See Astley v. Weldon, 2 Bos. and Pul. 350.

(6) The demise of the use of a thing is the demise of the thing itself. Pomfret v. Ricroft, 1 Saund. 321.

without demanding the additional rent, it was holden, that the right of the plaintiff to recover a sum of money as stipulated damages and as additional rent, was not waived by receiving the sum due for the original rent; aliter if it were a forfeiture.

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 or Illegal.

5. For quiet Enjoyment.

6. Not to assign without License.

1. Of Express Covenants, and herein of Express Covenants running with the Land.

THERE is not any precise form of words necessary to constitute an express covenant; any form of words or mode of expression in a deed, which clearly evinces an agreement, will amount to a covenant, for a breach whereof an action of covenant may be maintained. As if it be agreed between A. and B., by deed, that B. shall pay to A. a sum of money for his lands on a certain day: these words amount to a covenant by A. to convey the lands to B. on that day. So if lessee for years covenant to repairs, "provided always, and it is agreed, that the lessor shall find great timber;" this word agreed will make a covenant on the part of the lessor to find great timber. Secus, if the word agreed had been omittedt. So if A. lease to B. on condition" that he shall acquit the lessor of charges, ordinary and extraordinary, and shall keep and leave the houses at the end of the term in as good a plight as he found them; if he does not leave them in good repair, an action of covenant lies. So where covenant was

q Moor, 135.

r Pordage v. Cole, 1 Saund. 319. 2 Lev. 274. T. Raym. 183. S. C.

SIR

br. 518. (C.) pl. 2.

t 1 Rol. Abr. 518. (C.) pl. 3.

u 1 Rol. Abr. 518 (C.) pl. 5. 40 F. 3. 5. b.

brought on a writing sealed, whereby the defendant's testator acknowledged himself to be accountable to the plaintiff for all such monies as should be charged by plaintiff on A. to be paid to B.; and alleged, that he the plaintiff charged a certain sum of money on A. to be paid to B., and that the defendant's testator had not paid it; it was objected, that covenant did not lie, and that the proper form of action was an action of account; but it was holden, that covenant would lie in this case, and on any words, in a deed purporting to be an agreement for the payment of money. So in a case of a lease for years rendering renty; it was adjudged by the court, (absente, Holt, C. J.) that the render made a covenant. So where covenant was brought against executrix of assignee of lessee for years by indenture, for rent arrear in the time of the executrix, upon the words yielding and paying; it was holden, that the action would lie; and the opinion of the court was, that the words "yielding and paying," (7) in the indenture, made an express covenant, and were not a bare covenant in law. So in covenant against the assignee of lessee for years, upon an indenture", whereby plaintiff demised to the lessee a house, excepting a room, with free liberty of passage, through other rooms of the house unto the room excepted. Lessee assigned the lease; and the assignee stopped the passage, whereupon plaintiff brought this action, declaring for a breach of covenant. Resolved, by the court, that this exception amounted to a reservation, upon which covenant would lie; and they compared it to the preceding

x Brice v. Carre and others, Executors of J. S. 1. Lev. 47.

y Giles v. Hooper, Carth. 135.

z Porter v. Sweetnam, Sty. 406, 431. Hellier v. Casbard, 1 Sidf. 266, S. P. a Bush v. Coles, Carth. 232, Salk. 196. S. C.

(7) These words, yielding and paying," have sometimes been considered as sufficient to raise a covenant by implication of law only. See a dictum to this effect, 1 Sidf. 447; and Kenyon, C. J. so considered them in Webb v. Russel, 3 T. R. 402. The same opinion is adopted by Serjeant Williams in his notes to the first volume of Saunders, p. 241, b. note 5. But in addition to the authorities in the text, it may be observed, that in Rolle's Abridgment, Covenant (C.) the title of which is, "What words will make an express covenant?" in pl. 10, p. 519, this case is put as an instance of an express covenant: "If a man lease land for years, reserving a rent, an action of covenant lies for the non-payment of the rent; for the reddendo of the rent is an agreement for the payment of the rent, which will make a covenant."

case of rent reserved, where covenant will lie upon the words of reservation, without any express words of covenant. But it must be clear, that the words are meant to operate as an agreement, and not merely as words of qualification or condition. For where an assignee took from a lessee, leasehold premises by indenture, indorsed on the deed, "subject to the payment of the yearly rent and to the performance of the covenants in the lease;" it was holden", that these words did not constitute an agreement for the payment of rent, &c. during the term, nor did they render him liable to the lessee for rent which had become due, and the lessee had been obliged to pay to the lessor, after the assignee had assigned over the premises; for the words were words of qualification, and not of contract.

Where the law creates a duty or charge, and the party is disabled from performing it, without any default on his part, and has not any remedy over, the law will excuse him; but where the party, by his own contract, imposes on himself a duty or charge, he is bound to make it good, notwithstanding inevitable accident; because he might have provided against it by his own contract (8). A lease for years was made by indentured, of a meadow bounded on one side by a river, and the lessee covenanted to sustain and repair the banks, to prevent the water from overflowing the meadow, upon pain of forfeiture of a sum of money; afterwards, by a sudden and violent flood, the banks were destroyed, and, by the opinion of Fitzherbert and Shelley, Js. "the law is, that the lessee is excused from the penalty, because it is the act of God, which

b Wolveridge v. Steward, in error, c Paradine v. Jane, Aleyn, 27.
Exchr. Chr. 3 Tyrw. 657, reversing d Dyer, 33. a.
judgment in C. B. reported 9 Bingh.

60.

(8) This rule, extracted from the case of Paradine v. Jane, has been recognised in many subsequent cases*; and in Beale v. Thompson, 3 Bos. and Pul. 420. Chambre, J. speaking of this case, says, "the court took a rational distinction, that where an obligation is imposed by rule of law, and there is not any express covenant, the law introduces a reasonable exception, viz. that an act of irresistible violence will excuse the party; but if a party enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts, the consideration for such engagement, he must abide by the contract, and either do the act, or pay damages, his liability arising from his own direct and positive undertaking."

* Atkinson v. Ritchie, 10 East, 533.