and interest in the thing demised. If the conveyance falls short of this, it will not amount to an assignment, so as to discharge the assignee from his liability. In a plea of this kind, it is usual to aver the entry and possession of the person to whom the defendant assigned the premises; but such averment is not traversablei (35). i Walker v. Reeves, Doug. 461. n. becomes liable on the covenant for payment of rent, although he has never occupied or become possessed in fact: and see Burton v. Barclay, 7 Bingh. 745. (35) See Lord Kenyon's opinion as to this averment in the preceding note. It is to be observed, that assignees of a bankrupt lessee are not liable for rent arrear, where they have not taken possession of thing demised. Per Kenyon, C. J. in Bourdillon v. Dalton, and others, assignees of Bell, a bankrupt, Peake's N. P. C. 238; 1 Esp. N. P. C. 233. Neither are they bound to take possession of a damnosa hæreditas, that is, property of the bankrupt, which, so far from being valuable, would be a charge to the creditors. The assignees may take to the bankrupt's property or not, according as it is or is not beneficial to the creditors; and consequently they may do such previous acts as are necessary to ascertain whether the property be beneficial or not, before they take to it. Hence, where defendants, assignees of a bankrupt lessee, advertised the lease for sale by auction, in which advertisement they did not state that the premises belonged to them, nor for or by whom they were to be sold, but only generally that there was a saleable term, and no bidder offering, they declined interfering any further with the property; and it did not appear that they had ever taken possession, either actually or by receiving or paying any rent; it was holden, that there was not sufficient evidence to fix upon the defendants the characters of assignees of the bankrupt's term, so as to render them responsible for the performance of the covenants in his lease. Turner v. Richardson, 7 East, 335. Some assent of the assignees of a bankrupt to the assignment to them, of the premises, is necessary, in order to charge them with the bankrupt's covenants. Adm. S. C. Until some act is done to manifest the assent of the assignees, the term remains in the bankrupt and he is liable to the payment of the rent accruing due subsequent to the bankruptcy. Copeland v. Stevens, 1 B. and A. 593. But see 6 G. 4, c. 16, s. 75. ante, 480. The assignees of a bankrupt having allowed his effects to remain upon the premises nearly a year after the bankruptcy, in order to prevent a distress, paid the arrears of rent then due, at the same time intimating to the landlord that they did not mean to take to the lease unless it could be advantageously disposed of; the effects were soon after sold, and removed from the premises; the lease was at the same time put up to sale by order of the assignees, but there That the whole interest in the original lease must be conveyed, in order to make a person chargeable as assignee, will appear from the following cases: Lessee for lives, of a messuagek, under a covenant to keep the same in repair during the term, and at the end of the term to deliver it up so repaired, by indenture "granted and assigned all his estate and interest therein to A. and his executors, habendum, to A. and his executors, for ninety-nine years, if cestui que vie should so long live, in as large, ample, and beneficial way as the grantor, his heirs, &c., held the same, paying a certain rent to the reversioner." On the expiration of the lives, the reversioner brought covenant against the executors of A., for not yielding up the messuage in repair. It was alleged in the declaration, that all the estate and interest of the lessee for life vested in A. by assignment. This was denied by defendant's plea. A case having been reserved and argued, the court directed the postea to be delivered to the defendants; Lord Kenyon, C. J. observing, that there were not any words in the indenture, by which the freehold, of which the original lessee was seised, was conveyed to the testator of the defendants: that the conveyance of all the grantor's estate and interest to a man and his executors, for years, could not convey a freehold; that such words meant only their interest, &c., in the legal estate thereby granted; and that the court could not give those words a larger operation than the parties themselves had declared they should have. So the devisee of an equitable k E. of Derby v. Taylor, 1 East's R. 502. were not any bidders for it; they omitted to return the key to the landlord for nearly four months after; however, they were not asked for it, and they did not otherwise make use of the premises. Lord Ellenborough held that they were not liable to the landlord as assignees of the lease; for the mere omission to send the key was not tantamount to entering and taking possession. Wheeler v. Bramah, 3 Campb. 340. But where the assignees of a bankrupt entered and kept possession of his leasehold property for three months, it was holden, that they were chargeable with the covenants in the lease, although the bankrupt's effects were upon the premises during that period, and the assignees immediately after the sale delivered up the key. Hanson v. Stevenson, 1 B. and A. 303. [If assignees take possession with a view to a beneficial occupation, they are liable upon a tenancy from year to year, until it is terminated, the same as upon a lease. Ansell v. Robson, 2 Cr. and J. 610.] But see stat. p. 480. estate is not liable as assignee. So where in covenant for rent arrearm, brought against the defendant as assignee of J. S., it appeared in evidence, that by the deed, under which the defendant held, the premises were conveyed to him by J. S. for a day or some days less than the original term; the court were of opinion, that the action could not be maintained, the defendant being an under-lessee, and not an assignee of the whole term. But where a lessee for years granted the whole of the term to J. S.", it was holden, that J. S. might maintain an action. as assignee of the term against the lessor for a breach of covenant; although in the deed of assignment, the rent was reserved to the lessee, with a power of re-entry in case of non-payment, and although new covenants were introduced into that deed. With respect to declaring against an assignee, it is to be observed, that it is not incumbent on the lessor to set forth mesne assignments. It is sufficient to state, generally, that all the estate, &c.° of the lessee vested in the defendant by assignment; for it cannot be presumed that the lessor is acquainted with the particulars of the assignee's title. A. demised to B. for a term of years, and B. after covenanting for payment of rent, covenanted for himself, his executors, and assigns, that neither he, or his executors, or administrators, would assign without the consent of A. The term vested by assignment in C., who upon being sued for non-payment of rent, pleaded that before the rent became due, he had assigned to D. A. replied the covenant not to assign; but the replication was holdenP bad on demurrer, on the ground that the assignment itself was not void (although a breach of covenant,) and as soon as C. ceased to be assignee, his obligation to perform the covenant was at an end. VI. Of the Declaration, and herein of dependent Covenants, Conditions precedent, and independent Covenants. Venue. As this action is more frequently brought for breaches of covenants contained in leases, than on any other kind of covenants, the following table may be useful, in 1 The Mayor, &c. of Carlisle v. Bla- n Palmer v. Edwards, Doug. 186. n. o Pitt v. Russell, 3 Lev. 19. p Paul v. Nurse, 8 B. and C. 486. which the reader will see, at one view, in what cases such action is transitory, and in what local. The principle on which the table is framed is this: where the action is founded on privity of contract, it is transitory, and the venue may be laid in any county; but where the action is founded upon privity of estate only, it is local, and the venue must be laid in the county where the estate lies. In the third and fourth cases in the table, the privity of contract is transferred by the operation of the stat. 32 H. 8, c. 34. 1. Lessor v. Lessee. 2. Lessee v. Lessor. TRANSITORY. 3. Assignee of Reversion v. Lessee, stat. 32 H. 8. c. 34. Thursby v. Plant, 1 Saund. 237. 4. Lessee v. Assignee of Reversion, stat. 32 H. 8. c. 34. LOCAL. 5. Lessor v. Assignee of Lessee, Stevenson v. Lambard, 2 East, 575. 6. Assignee of Lessee v. Lessor. N. If the locality does not appear on declaration, and no issue is raised on it, the defendant is not entitled to a nonsuit, by reason of the venue being laid in a wrong county. Boyes v. Hewetson, 2 N. C. 575. 7. Assignee of Reversion v. Assignee of Lessee; Barker v. Damer, Carth. 182. Salk. 80. 8. Assignee of Lessee v. Assignee of Reversion. The circumstance of rent being made payable in a different county from that in which the lands lie, will not affect the locality of an action of covenant for non-payment of such renta. Where, however, the action is local, although it be brought and tried in a wrong county, yet the defect will be aided after verdict, by stat. 16 and 17 Car. 2. c. 8. And by stat. 3 and 4 W. 4. c. 42, s. 22, reciting, that unnecessary delay and expense is sometimes occasioned by the trial of local actions in the county, where the cause of action has arisen, it is enacted, that in any action depending in any of the superior courts, the venue in which is by law local, the court in which such action shall be depending, or any judge q Barker v. Damer, Salk. 89. r Mayor of London v. Cole, 7 T. R. 583. of the court may, on the application of either party, order the issue to be tried, or writ of inquiry to be executed, in any other county or place than that in which the venue is laid; and for that purpose any such court or judge may order a suggestion to be entered on the record, that the trial may be more conveniently had or writ of inquiry executed, in the county or place where the same is ordered to take place. It must appear on the face of the declarations, that defendant covenanted by deed; for where plaintiff declared that defendant per quoddam scriptum suum factum apud Westminster concessit, &c., it was holden bad; because scriptum did not import a deed, and factum being joined to apud Westminster, rendered it impossible to be taken as a substantive. As this action is brought on a deedt, with the execution of which defendant is charged, plaintiff must make a profert of the deed in the declaration, and bring the deed into court, in order that the court may see whether it be executed according to law. Profert being made, defendant is entitled to crave oyer, and the court cannot then dispense with oyer, although plaintiff make an affidavit, that he has searched for the deed, and cannot find it any where (36). Every deed is supposed to be executed the same day that it bears date". But though the deed appear on the face of it to have been made, that is, written on one day, yet if in truth it were delivered on a subsequent day, that may be shown by averment. A declaration in covenant stated that the deed was s Moore v. Jones, Str. 814. See also u Stone v. Bale, 3 Lev. 348. See also Southwell v. Brown, Cro. Eliz. 571. Goddard's case, 2 Rep. 4, b. t Thoresby v. Sparrow, B. R. E. 16 Geo. 2. 1 Wils. 16. 2 Str. 1186. S. C. (36) In Read v. Brookman, 3 T. R. 151, in a plea in bar to an avowry, plaintiff, instead of making a profert, pleaded that the deed was lost by time and accident. On special demurrer this averment was holden good, per Kenyon, C. J., Ashhurst, J., aad Buller, J.Grose, J. dissentiente; but, in pleading a lost deed, it is necessary to set forth the supposed names of the parties to the deed and the date. Hendy v. Stephenson, 10 East. 55. If the deed has been destroyed by fire, it may be so alleged as an excuse for the non-production of it, as in Routledge v. Burrel, 1 H. Bl. 254, where the plaintiff declared that by a certain deed-poll made, &c. (which said deed-poll was casually burnt and destroyed by the fire thereinafter mentioned.) But if profert be made in the declaration, the deed must be produced; for the plaintiff, so declaring, will not be permitted to give evidence of the destruction of the deed, or of its being in the hands of the defendant. Smith v. Woodward, 4 East, 585. |