ECCLESTON 2. CLIPSHAM. Joint Covenants-Several Covenants. Conveyance of a rectory to two, and a covenant with them and with each of them that the covenantor was lawfully seised of the said v. Hedges. S. C. 8 Mod. 166 (b). And even if the covenant were joint, and an action brought against one of the covenantors, he could only take advantage of it by a plea in abatement. For the disFor the distinction which runs through all the cases is between actions brought by one of several covenantees, obligees, or by one of several with whom any contract, whether in writing or parol, is made, and actions brought against one of several joint covenantors, obligors, or contractors. In the former case the action must be brought by all the parties. For where there are Chanter v. Leese. 4 Q. B. 197. Foley v. Addenbrooke. 3 G. & D. 64. S. C. See infra, p. 165, n. (e), and vol. ii., notes to Coryton v. Lithebye.] (b) As to what words make a joint and separate covenant on the part of the covenantors, see 1 Salk. 393. Robinson v. Walker, where the words were "for them"selves and each of them." See also 5 T. R. 522. The Duke of Northumberland v. Errington, where the covenants of the lessees were introduced thus: " and the "and the several covenantees or obligees, and one of them only brings an action without averring in the declaration that the others are dead, the defendant may either take advantage of it at the trial as a variance upon the plea of non est factum, or [might formerly] pray oyer of the deed and demur generally. So where an action is brought by one of several with whom any contract has been made, the defendant may take advantage of it upon evidence at the trial upon the plea of non assump sit; or if it appears upon the face of the declaration that the contract promise, and agree to and with "the said Duke of Northumber land, his heirs, and assigns, in "manner following, that is to say," then followed covenants by the lessees, then covenants by the duke, and afterwards other covenants by the lessees, in one of which the words "and each of them" were inserted, and in all the others omitted. The court held all the covenants several as well as joint by reason of the introductory words. See also 7 T. R. 852. Mansell v. Burredge. [1 B. & C. 682. Collins v. Prosser. 3 D. & R. 112. S. C. 1 Lee v. Nixon. A. & E. 201. S. C. 3 A. & E. N. & M. 441. 3 Joint Covenants-Severul Covenants. rectory, and it was held that they must both join in an action of covenant upon this breach, although the words are "with each of them," because the interest of the covenantees is joint and not several (2). was made with others as well as the plaintiff, it will be error. 5 Rep. 9. Slingsby's case. 1 Saund. 153. Eccleston v. Clipsham. 2 Str. 820. Leglise v. Champante. Ibid. 1146. Vernon v. Jefferys. Post, n. (4) to Cabell v. Vaughan, passim. S. C. 1 Vent, 34. 1 Skin. 401. Saunders v. Johnson. Com. Dig. Pleader (2 V. 2). Bull. N. P. 158. 1 Sid. 238. Osborn v. Crosbern. All. 41. Holdwich v. Chafe; in which last case a distinction seems to be made between the plea of non est factum, and praying oyer and demurring: but this distinction does not seem to be warranted by any of the modern cases. where an action is brought against one of several joint covenantors or obligors, the defendant can only But (c) From what has been said in the beginning of note (1), and which has since been acknowledged to be good law, it is clear that the insertion or omission of the words "cum quolibet corum," can make no difference as to the covenantees, but that the action will, in all cases, follow the interest without regard to the words of the covenant. [It is observed, however, in Preston's edition of Sheph. Touch. p. 166, that this doctrine requires take advantage of it by a plea in abatement. And though it should appear upon the record that there are others who ought to be joined as defendants, yet that will not be error. 5 Rep. 119. Whelpdale's case. 1 Str. 503. Gilbert v. Bath. So in contracts. 5 Burr. 2611. Rice v. Shute. 2 Black Rep. 947 Abbot v. Smith. (2) And this difference was agreed; when it appears by the declaration that every of the covenantees hath, or is to have, a several interest or estate, there, when the covenant is made with the covenantees, et cum quolibet eorum, these words cum quolibet eorum, make the covenant several in respect of their several interests (c). As if a man by indenture demises to 4. Black some qualification, and the correct rule is there stated to be, that by express words, clearly indicative of the intention, a covenant may be joint, or joint and several to, or with, the covenantors or covenantees, notwithstanding the interests are several; and so it may be several, although the interests are joint. But the implication or construction of law, when the words are ambiguous, or are left to the interpretation of law, will be, that the words have Joint Covenants-Several Covenants. acre, to B. White-acre, and to C. Green-acre, and covenants with them et quolibet eorum, that he is lawful owner of all the said acres, &c., in that case, in respect of the said several interests by the said words "et cum quolibet "eorum," the covenant is made several. But if he demises to them the acres jointly, then these an import corresponding to the interest, so as to be joint when the interest is joint and several when the interest is several, notwithstanding language, which, under different circumstances, would give to the covenant a different effect. The qualification of the rule thus stated by Mr. Preston was adopted by Lord Abinger and Parke, B., in 12 M. & W. 146, 156, 158. Sorsbie v. Park; and the latter learned judge stated the true rule to be, that "a covenant will be construed to be joint or several, "according to the interest of the parties appearing on the face of "the deed" (see also 12 M. & W. 134; Wootton v. Stefenoni), "if "the words are capable of that "construction; not that it will "be construed to be several by "reason of several interests, if it words cum quolibet eorum are void; for a man by his covenant (unless in respect of several interests) cannot make it first joint, and then several, by the same or the like words " cum quolibet eorum." 5 Rep. 18 b, 19 a. Slingsby's case. S. C. 3 Leon. 160, 161. S. P. 2 Leon. 47. A. and B. have several interests, 'they must sue separately; for though the words be primi "fucie joint, they will be con"strued to be several, if the "interest of either party appear ing upon the face of the deed "shall require that construction." In a later case, Foley v. Addenbrooke, 4 Q. B. 197. 3 G. & D. 64. Post, vol. ii., notes to Coryton v. Lithebye, the rule was laid down to be, that where the legal interest and cause of action of the covenantees are several, they should sue separately, though the covenant be joint in terms; but the several interest and the several ground of action must distinctly appear. On the other hand, if the cause of action be joint, the action should be joint, though the interest be several. See also Accord. 19 C. B. N. S. 713. Thompson v. Hakewill. 9 Q. B. 209. Wakefield v. Brown. The correctness of Mr. Preston's qualification was next mooted in the case of Hopkinson v. Lee, Joint Covenants-Several Covenants. 6 Q. B. 964, where the court appear to have disapproved the qualification, and to have considered that the old rule ought to stand absolute, and disagreed with the dicta of Lord Abinger, and Parke, B., in Sorsoie v. Park (ante, p. 166), considering those dicta, and the qualification itself, as contrary to Anderson v. Martindale, 1 East, 497, and Slingsby's case, 5 Rep. 18. This case was followed by Bradburne v. Botfield, 14 M. & W. 559, which called for no decision but on the old rule. But Parke, B., took occasion (p. 572) to observe, that though he thought Hopkinson v. Lee was good law, still he agreed with Mr. Preston's qualification of the rule laid down in James v. Emery (ante, p. 162), which, if unqualified, would establish that there was a rule of law too powerful to be controlled by any intention, however express. And the learned Baron added (p. 573), that it was far from his intention, or Lord Abinger's, to sanction any doctrine at variance with the cases of Anderson v. Martindale, and Slingsby's case. And the learned Baron added, "Perhaps the Court of Queen's "Bench misunderstood what I "said in Sorsbie v. Park. When "I used the word joint,' I meant "expressly joint." Again, in Knightley v. Watson, 3 Exch. 716, the rule was stated, by Pollock, C. B. (a rule which he was by no means inclined to break in upon), that the same covenant cannot be treated as joint or several at the option of the covenantee. If the covenant be so constructed as to be ambiguous, that is, so as to serve either the one view or the other, then it will be joint if the interest be joint, and it will be several if the interest be several. On the other hand, if it be in its terms unmistakeably joint, then, though the interest be several, all the parties must be joined in the action. So, if the covenant be made clearly several, the action must be several, though the interest be joint. It is a question of construction; and Parke, B., repeated the explanation he had given of the dicta of himself and Lord Abinger in Sorsbie v. Park, and adhered to his approval of Mr. Preston's qualification of the rule laid down in James v. Emery (ante, p. 162). And he added it was impossible to say that parties may not, if they please, use joint words so as to express a joint covenant, and thereby exclude a several covenant :-If there be words capable of two constructions, the court must look to the interest of the parties which they are intended to protect, and construe the words according to that interest-and that no case could be found at variance with that rule, unless Hopkinson v. Lee (supra) might be thought to have a contrary aspect. The learned Baron added that the rule that had been Joint Covenants-Several Covenants. adopted in Bradburne v. Botfield was undoubtedly the correct one. He said that it was impossible to doubt that the rule was one of construction, and that, like all rules of construction, it must bend to express words. Rolfe, B., fully concurred in the rule as stated in Bradburne v. Botfield (ante, p. 167), and said it appeared to him that Mr. Preston's suggestion was perfectly well founded -that the rule in Slingsby's case was not a rule of law, but a mere question of construction. In the last case on the subject, Haddon v. Ayers, 1 E. & E. 118, Mr. Preston's qualification appears to be treated as fully established lawand the rule was stated by Lord Campbell, p. 148, to be, that where there are separate interests through many covenantors, there the covenants are severed, unless the words unequivocally shew the meaning to be that the covenant shall be joint. See also the law as stated by Maule, J., in 12 C. B. 78. Beer v. Beer. See post, vol. ii, notes to Coryton v. Lithebye.] ', |