holden the action might be maintained; for if, before the statute, there had been an assignment of the lease, and the lessor had accepted rent, he might, notwithstanding, have proceeded by covenant against the lessee; for the privity of contract was not destroyed. The statute made no difference; it contemplated the case of a bankrupt lessee only, not of an assignee of the term. The statute did not apply to this case. The statute operates only as a personal discharge of the bankrupt; for it does not say that the lease and the covenants shall be at an end, but merely that the bankrupt lessee shall not be liable to be sued in respect of any subsequent non-observance of the covenants. Lastly, where the assignees do not, upon request, elect whether they will accept or decline; in which case, the Lord Chancellor has power, upon petition, to order the assignees to elect, and to deliver up the lease and possession of the premises.

Whether the license to assign be general, as in the preceding case of Dumper v. Syms, or particular, as "to one particucular persona, subject to the performance of the covenants in the original lease," yet the condition is gone, and the assignee may assign without a license. But where there is an exception out of the original restriction to alienate in favour of an assignment by will, and an assignment is made by the lessee by will; and then his executors make another assignment, and not by will, it seems that this last assignment is badb. Acceptance by the lessor of rent due after condition broken with notice, is a waver of the forfeiture. A court of equity will not relieve against a forfeiture occasioned by breach of covenantd not to assign.

IV. By whom the Action of Covenant may be maintained:

1. Heir.

2. Executor.

3. Assignee.

1. By Heir.-COVENANTS which run with the land will descend to the heir of the covenantee; and he may sue for a breach thereof; as where the lessee covenanted with the lessore, his executors, and administrators, to repair; it was holden, that the heir of the lessor, though not named, might have covenant against lessee for not repairing. Plaintiff declared as heir on a covenant by lessee for years to repair, and assigned for breach, that the premises were out of repair for a period of time which included a portion of his ancestor's life; and on this ground an exception was taken in arrest of judgment, after verdict for the plaintiff; but it was overruled, Holt, C. J. observing, that if the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it was a damage to the heir; and the jury give as much in damages as would put the premises in repair, respect being had, not to the length of time they continued in decay, but to what it will cost at the time of action brought, to put the premises in repair. Upon a covenant with A. and his heirs to do all lawful and reasonable acts for further assurance, upon request, and a request, made by the ancestor in his life to levy a fine, and neglect so to do, the ancestor not being evicted in his life, but the heir being evicted afterwards, the heir may maintain an action upon the request of the ancestor, and refusal made to him; because the ultimate damage had not accrued in the life of the ancestors.

2. By Executor.-A. and B. his wife by indenture, demised lands to C. for 21 years, and thereby covenanted, that they (viz.) A. and B. would, at the end of 21 years, make a good lease to C. and his assigns for 21 yearsh, commencing at the expiration of the first term. During the first term, the lessee died, having made his will and appointed D. his executrix, who entered, &c. and died, having made her will and ap

e Lougher v. Williams, 2 Lev. 92. Skin. 305.

f Vivian v. Campion, Salk. 141.

g King v. Jones and another, 5 Taunt.

418. Affirmed on error, 4 M. & S. 188.

h Chapman v. Dalton, Plowd. 284. a.

pointed the plaintiff her executor, who entered, &c. At the expiration of the first term, A. and B. having refused to grant the further lease, an action was brought by the plaintiff (as executor of D. executrix of C. the lessee, on this covenant against A. the husband; and it was adjudged that the action would well lie. The reasons of the judgment are not mentioned in the report; but it appears to have been decided on the ground that the plaintiff, being executor of D. who was executrix of C. the lessee, was as such entitled to the benefit of his covenant. Covenant by the plaintiff as executor of J. S.i. The defendant sold lands to J. S., and covenanted with him, his heirs, and assigns, that he should enjoy the lands against all persons claiming under one A.; and the breach assigned was, that B. and C. in the lifetime of the testator, entered claiming under A. On demurrer to defendant's plea, it was contended, for the defendant, that the covenant was with J. S., his heirs, and assigns, touching an estate of inheritance; and therefore, that the action ought to have been brought by the heir or assignee, and not by the executor; but it was resolved by the court, that the eviction being to the testator in his life time he could not then have an heir or assignee of this land, and therefore the damages belonged to the executor, though not named in the covenant; for he represented the person of the testator. But where the plaintiff as executrix declared that the defendant, by deed, conveying to plaintiff's testator certain land in fee, subject to redemption on payment of a sum certain, covenanted with the testator, his heirs, and assigns, that he was at the time of the execution of the deed seised in fee, and had a right to convey, &c. and assigned for breach that the defendant was not seised, &c. and had not a right to convey, &c. it was holden, that the executrix could not maintain this action without showing some special damage to the testator in his lifetime, or that the plaintiff claimed some interest in the premisesk. But the plaintiff, being devisee in fee, sued afterwards in that character, stating as damage, that the premises were thereby of much less value than they would have been, and that she had been prevented from selling them at so large a price as she otherwise would, and it was holden1 that the action was maintainable.

Lessee for years by indenture demised for a term longer

i Lucy v. Levington, 2 Lev. 26. 1 Ventr. 175. S. C.

k Kingdon v. Nottle, E. 53. G. 3. B. R. on special dem. 1 M. & S. 355, cited

by Heath, J. delivering judgment of court in King v. Jones, 5 Taunt. 418.

1 Kingdon v. Nottle, 4 M. & S. 53.

than his own, the under lessee covenanting to pay rent to the lessee; it was holden m, that the executor of lessee might sue the under lessee for rent accruing during the continuance of the term; for the deed operated as a demise, and the covenant was for a payment in the nature of rent. Executors", though not named, may sue on a covenant made with testator, in reference to a chattel. Upon a covenant by lessee not to fell timber or cut wood, the executor may maintain an action for a breach in the lifetime of his testator o.

3. By Assignee.-Assignee of part of the reversion of all the land demised, may take advantage of the covenants contained in an indenture of demise; for he is an assignee within the stat. 32 H. 8. c. 34. As the assignee of a term is bound by covenants which run with the land, so he may take advantage of them. If a man demise or grant land to a woman for years", and the lessor covenant with the lessee to repair the houses during the term, the woman takes husband, and dies, the husband shall have an action of covenant as well on the covenant in law upon the words " demise or grant," as upon the express covenant. The law is the same with respect to tenant by statute merchant, or statute staple or elegit, of a term, and with respect to him to whom a lease for years is sold by force of any execution, who shall have an action of covenant in the like case as a thing annexed to the land, although they come to the term by act of law. So the executor of B.S the executor of A. is entitled to the benefit of a covenant made with A. and his assigns, for he is the assignee in law of A. N. The word assignee comprehends the assignee of the assignee, the executors of the assignee of the assigneet, and the assignee of the executor or administrator of the assignee. But covenant does not lie by an assignee for a breach done before his time". A mortgagee died possessed of the residue of a mortgage term, subject to the usual proviso of its being determined on payment of the money on a given day; the money was not paid at the day, and afterwards the mortgagee died, having bequeathed the money to the plaintiff by will, and appointed him his executor: it was held, that the plaintiff could not sue in covenant as assignee of the term, because this was

m Baker v, Gostling, 1 Bingh. N. C. 19.

n Doed. Rogers v. Rogers, 2 Nev. & Man. 550.

o Raymond v. Fitch, 2 Cr. M. & R. 588.

Р

1 Inst. 215 a.

q Cro. Eliz 553

r Spencer's case, 5 Rep. 17. a. 5th Resolution.

s Chapman v. Dalton, Plowd. 284. a. ante p. 482.

t Spencer's case, 5 Rep 17. b.

u Lewes v Ridge, Cro. Eliz. 863.

x Canham v Rust, 2 Moore, (C. P.)

a personal covenant, collateral, and not running with the land, and because it was broken in the lifetime of the testator.

Stat. 32 H. 8. c. 34.-The stat. 32 H. 8. c. 34. after reciting, that many temporal and religious persons had made leases and grants of land for life or lives, or for term of years, by writing under seal, containing conditions and covenants to be performed as well on the part of the lessees and grantees, their executors and assigns, as on the part of the lessors and grantors, their heirs and successors; and that by the common law no stranger to any covenant could take advantage thereof; but only such persons as were parties or privies thereunto; by reason whereof grantees of reversions, and grantees and patentees of lands lately belonging to religious houses, were excluded from any entry or action against the lessees and grantees, their executors and assigns, for breach of any condition or covenant, enacts, "that all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king, of any lands or other hereditaments, or of any reversion of the same which belonged to any of the monasteries, &c. dissolved, or by any other means come to the king's hand, since the 4th day of February, A. D. 1535, or which at any time before the passing this act belonged to any other person, and after came to the hands of the king, and all other persons being grantees or assignees to or by the king, or to or by (26) any other person than the king, and their heirs, executors (27) successors, and assigns, shall have like

(26) It seems to have been the opinion of the court in Lee and Arnold's case, 4 Leo. 29. that the bargainee of a reversion, by bargain and sale, indented and enrolled, was an assignee within this statute, though he hath but an use by the act of the party, and the possession by stat. 27. H. 8.

(27) In respect of this word, it hath been holden, that an assignee of part of the reversion, as an assignee of the reversion for years, of all the estate demised, may enter for condition broken. Matures v. Westwood, B. R. H. 40 Éliz. Cro. Eliz. 599, 600. 67. Moor, 527. S. C. 1 Inst. 215. a. So the grantee, for life, of a reversion, is an assignee within this statute, and may enter for condition broken. Kidwelly v. Brand, Plow. 72. But the grantee of the whole estate, in reversion, in part of the thing demised, is not within the meaning of the statute; as if the reversioner in fee of four acres grants two acres in fee, the grantee cannot enter, because conditions cannot be apportioned by act of the party, 4 Leo. 27. But covenants may. See Twynam v. Pickard, 2 B. & A. 105, where it was adjudged, that covenant will lie by the assignee of the reversion of part of the demised premises against the lessee for not repairing such part.