advantages against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing waste or other forfeiture (28), and by action only for not performing other conditions, covenants, or agreements expressed in the indentures of leases and grants, against the said lessees (29) and grantees; their executors, administrators, and assigns, as the said lessors and grantors, their heirs or successors, might have had. By s. 2. all lessees and grantees of land or other hereditaments, for terms of years life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the king, or of any other persons, of the reversion of the same lands and hereditaments so letten, or any parcel thereof, for any condition or covenant, expressed in the indentures of their leases, as the same lessees might have had against the said lessors and grantors, their heirs and successors."

دو

The first section of the preceding statute gives to the assignee of the reversion two remedies, one, by entry for nonpayment of rent, doing waste, or other forfeiture; and the other, by action, for not performing other conditions, &c.; and as the remedy by entry, according to the construction, 1 Inst. 215 b. is confined to forfeitures by force of such conditions, as either are incident to the reversion, or for the benefit of the estate; so it hath been resolved, that the remedy by action is confined to the breaches of such covenants, as relate to the thing demised, and not to collateral covenants. And on this ground, where the mortgagor and mortgagee of a term made an under-lease", in which the covenants for the rent and repairs were with the mortgagor and

q Spencer's case, 5 Rep. 18. a.

r Webb v. Russell, 3 T. R. 402, 3.

cited and relied on in Whitton v. Peacock, 2 Bingh. N. C. 411.

(28) Although the words of the statute be for non-payment of the rent, or for doing of waste or other forfeiture, yet the grantees or assignees shall not take advantage of every forfeiture by force of a condition, but of such conditions only, as either are incident to the reversion, as rent; or for the benefit of the estate, as for keeping the house in repair, for making fences, scouring ditches, preserving woods, or such like, and not for the payment of any sum in gross, delivery of corn, wood, or the like. 1 Inst. 215. b. Moor, 876. pl.

1228.

(29) This statute does not extend to covenants upon estates tail. 1 Inst. 215. a. See also the preamble.

his assigns only; it was holden, that the assignee of the mortgagee could not maintain an action for the breach of these covenants; because they were not covenants running with the land, but collateral covenants, being entered into with a stranger to the land, that is the mortgagor, who had only an equity of redemption. If the estate in reversions, in respect of which the condition or covenant was made, be extinguished, the condition or covenant is also extinguished: As where a lease was made for 100 years, and the lessee made an under-lease for 20 years, rendering rent, with a clause of re-entry; and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term; it was holden, that the grantee should not have either the rent, or the power of re-entry; for the reversion of the term, to which they were incident, was extinguished in the reversion in fee. Tenants in common of a reversion may maintain covenant against the assignee of the term for the recovery of arrears of rent, although it should appear, that at time of action brought, the reversion was out of the plaintiffs, they having granted it over, after the rent became due t N. In Glover v. Cope", B. R. Pasch. 3 W. and M. Carth. 205, it was adjudged, after two solemn arguments, by Holt, C.J. and the court, that the grantee of the reversion of copyhold lands was within the intention and equity of the preceding statute, which is a remedial law, and of great and universal use, and absolutely necessary as well for copyholders as others; and that by this construction of the statute the lords of copyhold manors could not be injured. A remainder-man is an assignee of the reversion within this statute: Devise to A. for life, remainder to B. for life, &c. with power to make leases for 21 years: A. leases for 14 years, by indenture, in which lessee covenants with lessor, his heirs, and assigns, for payment of the rent to lessor, his heirs, and assigns, for payment of the rent to lessor, and such other person as should be entitled to the freehold, &c. A. dies pending the term, and after the death of A. rent becoming in arrear, B. brings covenant: held that it would lie, for B. is, within the meaning of the statute, an assignee of the reversion of that estate out of which the lease is granted. But where J. B. being seised in fee, conveyed to defendant and T. J., their heirs, and assigns, to the use that J. B., his heirs, and assigns, might have

s Moore, 94, pl. 232, recognized by Kenyon, C. J. delivering the opinion of the court in Webb v. Russel, 3 T. R. 402, 3.

t Midgley and another v. Lovelace, Carth. 289. 12 Mod. 45. S. C.

u 3 Lev. 326. Skin. 305. S. C. See also Whitton v. Peacock, 3 Myl. & K. 325.

x Isherwood v. Oldknow, 3 M. and S. 382.

and take to his use a rent certain to be issuing out of the premises, and subject to the said rent, to the use of defendant, his heirs, and assigns; and defendant covenanted with J. B. his heirs, and assigns, to pay to him, his heirs, and assigns, the said rent, and to build, within one year, one or more messuages on the premises, for better securing the said rent; and J. B. within one year, demised the said rent to plaintiffs for 1000 years: it was holdeny, that covenant would not lie at the suit of the plaintiffs for non-payment of the rent, or for not building the messuages, for here was neither privity of contract, nor privity of estate; the rent was reserved out of the original estate; the covenant was a covenant in gross. Lessee for years assigns over his term by indenture to J. S.; and, in the same deed, he covenants that J. S. and his assigns shall enjoy the land during the term without interruption from any person; after which J. S. assigns over the term by parol, and the assignee being disturbed brought an action of covenant; and adjudged, that it well lies; although the assignment was not by writing, because the assignee was privy in estate. But now by stat. 29 Car. 2. c. 3. s. 3. leases, estates, or interests, either of freehold, terms of years, or uncertain interest, cannot be assigned, unless by deed or note in writing signed by the assignor or his agent, or by operation of law. A person to whom an apprentice is assigned according to the custom of the city of London a, cannot maintain covenant on the indenture of apprenticeship to which he is not a party; because custom cannot make an assignee, so as to entitle him to an action.

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

1. Heir.

2. Executor.

3. Assignee.

1. Against Heir.-An action of covenant will lie against the heir on a covenant by his ancestor for himself and his heirs, as well as an action of debt will lie against the heir

y Milnes v. Branch, 5 M. and S. 411. z Awder v. Nokes, Cro. Eliz. 436. re

cognized and briefly stated in 3 Rep. 63. a.

a Barker v. Beardwell, 1 Show. 4.

on a bond, wherein the ancestor has bound himself and his heirs. It is not necessary to allege in the declaration, that the heir has lands by descent. It seems, however, that in this case, as well as in debt on bond against the heir, if the heir has not any lands by descent, he may insist on it by way of defence to the action. See the form of plea of riens per descent to an action of covenant against heir. Lutw. 290.

In an action on a breach of covenant in a lease for quiet enjoyment, the declaration, after stating that defendant's ancestors granted the lease in question, alleged, that the reversion vested in the defendant by assignment; defendant, by guardian, pleaded that the reversion did not vest in him modo et formá; it appeared in evidence, that the estate descended to the defendant, an infant, as heir at law to the lessors; whereupon it was objected, that the reversion vested in the defendant by descent, and not by assignment; and that if the declaration had charged the defendant as heir, he might have prayed the parol to demur, in order that he might have an opportunity of electing whether he would take the estate subject to the incumbrance or not. But the court was of opinion, that if the defendant had intended to avail himself of his infancy, he ought to have pleaded it; that it was sufficient to prove the substance of the issue, which was, that defendant was clothed with such a character as would make him liable to the covenant; and that was sufficiently proved by shewing that the estate was vested in him; for whether he was in possession as assignee or heir at law, he was equally liable to this covenant.

2. Against Executor.-Executors and administrators are bound by the covenants of their testator or intestate, although they be not named; unless the covenants are such as in their nature determine by the death of the covenantor. It was said by the court in Hyde v. Dean of Windsor, Cro. Eliz. 553. that covenant lies against an executor in every case, although he be not named, unless it be such a covenant, as is to be performed by the person of the testator, which the executor cannot perform. Executors and administrators may be sued as assignees ; for they are assignees in law of the interest of the term. Where covenant is brought against an executorf; although the breach assigned be for default of reparation committed in the time of the executor, yet the

b Dyke v. Sweeting, Willes, 585.
c Derisley v. Custance, 4 T. R. 75.
d Tilney v. Norris, E. 12 W. 3 B. R.
Carth. 519. 1 Ld. Raym. 453. Salk.
309. S. C.

e Per Fleming, C. J. 1 Bulstr. 23.
f Collins v. Throughgood, Hob. 188.

judgment must be de bonis testatoris; for it is the covenant of the testator which binds the executor as representing him, and therefore he must be sued by that name. Covenant by testator to teach an apprentice his trade is binding on the executors, and they ought to see that the apprentice is taught his trade; and if they are not of the same trade, they ought to assign him to another who is of the trade, so that he may be taught according to the covenant. Where an administrator had occupied premises demised by indenture to the intestate, it was holden 1, that a plea to covenant for nonpayment of rent, taxes, and non repair, stating that the premises yielded no profit, could not be supported.

3. Against Assignee.-1. If the covenant extends to a thing in esse, parcel of the demise, as a covenant to repairi; to reside constantly on the demised premises, to leave part of the land demised every year for pasture, to insure against fire premises situated within the limits mentioned in the party-wall act, 14 Geo. 3. c. 78.m or the like, the thing to be done by force of the covenant, is in a manner annexed and appurtenant to the thing demised: it is a parcel of the contract, and tends to the support of the thing demised; hence, it shall bind the assignee, although he be not named; and the assignee by act in law, as tenant by elegit of a term, or he to whom a lease for years is sold by force of any execution, is equally bound with the assignee by act of the party". Where it is proved that A. is tenant, and that upon his quitting the premises B. takes possession, B. may be presumed to have come in as assignee of A.

A covenant by a lessor to supply the premises demised, (two houses) with a sufficient quantity of good water at a certain rate for each house is a covenant that runs P with the land.

2. If the covenant relates to a thing not in esse at the time of the demise, but to be done upon the thing demised, as a covenant to build a new wall upon the thing demised; it shall bind the assignee, if named.

3. If the covenant relates to a thing merely collateral to and not in any respect concerning the thing demised, as a

g Walker v. Hull, 1 Lev. 177. Sed quæ. h Tremeere v. Morison, 1 Bingh. N. C. 89.

i Dean and Chapter of Windsor's case, 5 Rep. 24. a.

k Tatem v. Chaplin, 2 H. Bl. 133. 1 Cockson v. Cock, Cro. Jac. 125. m Vernon v. Smith, 5 B. & A. 1.

n 6th Resolution. Spencer's case, 5 Rep. 17 b.

o Doe v. Murless, 6 M. & S. 110, recognized by Bayley, J. in Doe d. Morris v. Williams, 6 B. & C. 42.

p Jourdain v. Wilson, 4 B. & A. 266. q Spencer's case, 2nd Resolution.