a house fre ath of the s of the me i rent fra ment, 12 that bes hereditaments, except so far as those words may, by force of any act of parliament, imply a covenant (f). The above act does not apply to the word "demise" (g). If a lessor demise land for a term of years, and afterwards by the words dedi et dimisi demise the same land to A. for life, who enters and is ousted by the termor for years; A. may maintain an action against the lessor on the implied covenant, and have satisfaction in damages for the chattel evicted; for he continues seised of the freehold (h). In covenant on a lease for years made by the defendant by the word dimisi, it was averred, that at the time of the lease made, the lessor was not seised of the land, but a stranger; it was objected, that the entry of the lessee by force of the lease, and ejectment by the stranger, or some person claiming under him, were not alleged; but the court was of opinion, that the action would lie; for the breach of covenant was, that the lessor had undertaken to demise that which he could not, the word dimisi importing a power of letting, as dedi does a power of giving; and they added, that it was not reasonable to enforce the lessee to enter upon the land, and so to commit a trespass (i). And where a lease for years is made by the words "demise," the assignee of the lessee is entitled to the same advantage as the lessee, and may in case of eviction maintain an action on the implied covenant (k). Tenant for life, remainder over, by indenture demised for fifteen years, without any express covenant for quiet enjoyment; the lessee was ousted by the remainder-man, after the death of the tenant for life, but before the expiration of the fifteen years: it was held, that the lessee could not maintain an action of covenant against the executor of the tenant for life; for the covenant in law ends and determines with the estate of the lessor (1). The implied covenant follows the nature of the interest granted; as where A. and B. made a lease by the word "dimiserunt;" it was held, that the implied covenant was joint, viz. that A. and B. had power to demise, and that an action on the ground of their not being seised at the time of the demise should be brought against both, and could not be maintained against one only (m). The generality of an implied covenant may be qualified and restrained by an express covenant. As where the lessor demised, &c. a house for a term of years, and covenanted, that the lessee should enjoy the house during the term, without eviction by the lessor, or any (g) See per Parke, B., in Doughty v. Bowman, 11 Q. B. 454. Whether the words "to let," in an agreement for a lease, imply a contract for quiet enjoyment, quære. Messent v. Reynolds, 3 C. B. 194, and quare, whether the words "to let" in a deed would be equivalent to the words "to demise." Per Cresswell, J., S. C. (h) Pincombe v. Rudge, Yelv. 139. (i) Holder v. Taylor, Hob. 12; 1 Inst. 301. b. (k) Spencer's case, 5 Rep. 17, a, 4th (1) Adams v. Gibney, 6 Bingh. 656. claiming under him (n); it was held, that the express covenant qualified the generality of the covenant raised by implication of law from the words demise, &c. and restrained it by the mutual consent of both parties, so that it should not extend further than the express covenant (o). Sir E. Coke, from whose Reports this case is taken, subjoins as follows: "And there is great reason, that the particular covenant subsequent should qualify the general force of this word "dimisi," for otherwise the particular covenant would be in vain if the force of this word "dimisi" should stand, and these words dimisi et concessi are frequent in every ordinary lease that is made; and the better construction of deeds is to make one part of a deed expound the other, and so to make all the parts agree, and, quoad fieri possit, according to the true intent and meaning of the parties." So where in a covenant on an indenture, whereby the defendant granted a fee farm rent to the plaintiff, and covenanted that he was seised in fee, and had good right to sell; the breach assigned was, that he had not good right; the defendant pleaded, that it was further agreed, in the same indenture, that all the covenants in the indenture should not extend further than to acts done by the vendor and his heirs, whereon the plaintiff demurred; and although this was a remote agreement at the end of the deed, at a great distance from the other covenant, it was adjudged, that it had qualified the first covenant, and restrained it to acts done by the covenantor only (p). See Browning v. Wright, post, p. 511. Where a lessee covenanted that he would at all times and seasons of burning lime, supply the lessor and his tenants with lime, at a stipulated price, for the improvement of their lands and repair of their houses; it was held, that this was an implied covenant also that he would burn lime at all such seasons, and that it was not a good defence to plead that there was no lime burned on the premises out of which the lessor could be supplied (q). So where the plaintiffs covenanted with a water company to complete a well and works mentioned in certain drawings and specifications prepared by the company's engineer, finding all materials, &c., and the specification, which was under the seal of the company, contained the following passage: "The contractor will be required to sink the well, &c. to the depth of 120 feet, &c., after which the company will undertake the erection of the permanent steam engine, and permit the pumping to be performed by it, sufficient interval of time being allowed for the erection of the steam engine, and such time added to the period assigned to the contractor for the performance of the works;" it was held, that (n) See Stanley v. Hayes, 3 Q. B. 105; Spencer v. Marriott, 1 B. & C. 457. (0) Noke's case, 4 Rep. 80, b.; Line v. Stephenson, 4 B. N. C. 678; (in Exch. Cham.) 5 B. N. C. 183, S. C. (p) Brown v. Brown, 1 Lev. 57. (9) Earl of Shrewsbury v. Gould, 2 B. & Ald. 487. See Webb v. Plummer, ibid. 746, but see Gwillim v. Daniel, 2 C. M. & R. 61. there was an implied covenant on the part of the company to erect the steam engine as provided in the specification (r). So where a railway company demised certain refreshment rooms at Swindon to the plaintiffs, and it was declared to be the intention of the defendants and the understanding of the plaintiffs that the defendants should give every facility to the plaintiffs for obtaining an adequate return for their capital invested in the refreshment rooms; that all passenger trains should, with certain exceptions, stop at the station for a reasonable period of about ten minutes, and that the defendants engaged not to do any act which should have an effect contrary to the above intention, it was held that this amounted to a covenant, on the part of the company, not to do any act to prevent the trains from stopping at the station aforesaid. Rigby Rigby v. Great Western Railway, 14 M. & W. 811. But, although, where from words of recital or reference, a clear intention is manifested that the parties should do certain acts, the courts will infer a covenant to do such acts, yet it does not follow that where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants; the presumption is, that, the parties, having expressed some, have expressed all, the conditions by which they intend to be bound under the instrument (s). So the fact that parties have entered into certain engagements, upon the supposition that certain acts would be done, does not imply a covenant on the part of either to do those acts (t). 3. Alternative Covenants. The construction to be put on covenants to which there is an alternative in nowise differs from that of other covenants; it is still the intention of the parties which has to be ascertained. Where the plaintiff granted to the defendant a licence to use a patent for a term of years on payment of a certain royalty, and the defendant covenanted to pay it, and that if the royalty fell short of 2,000l. in any year, he would pay, within fourteen days of the expiration of the year, such a sum as with the royalty reserved made up that amount; 'or, if the defendant shall at any time make default in such sum of money aforesaid within the time appointed for payment, then it shall be lawful for the plaintiff, by writing, &c., to declare that the said indenture and the powers and licence thereby granted shall cease and determine;" it was held, that this was not an absolute covenant to pay 2,000l. a year during the term, but an alternative covenant enabling the plaintiff to put an end to the term (r) Knight v. Gravesend Water Co., 2 H. & N. 6; and see Great Northern Railway v. Harrison, 12 C. B. 576. (8) Aspdin v. Austin, 5 Q. B. 671. (t) Rashleigh v. South Eastern Railway, 10 C. B. 632, per Maule, J.; James v. Cochrane, 7 Exch. 177, per Parke, B. on non-payment of that sum by the defendant (u). But where the plaintiff agreed to serve the defendant in a certain business for seven years at a salary of 100l. a year, and the defendant agreed to pay the salary; and that if the defendant should from any cause give up the business or not require the plaintiff's services, he would use his best endeavours to procure for the plaintiff employment in some similar business, at a salary of not less than 1007. a year; or in case he should be unable to do so, then that he would pay to the plaintiff 1007. a year during the residue of the seven years; it was held, that it was not open to the defendant to choose between using his best endeavours to find the plaintiff a situation and paying him 1007. a year, but that he was bound to use his best endeavours in the first instance, and could only resort to the payment of the 1007. on failure of those endeavours (x). 4. Of Joint and Several Covenants. Where the interest, i. e. the legal interest (y), of the covenantees is joint, the action of covenant generally follows the nature of the interest, and must be brought in the names of all the covenantees; and this rule holds, even where the covenant is in terms joint and several; for such a wording of the covenant cannot make that, which was before joint, several; Eccleston v. Clipsham, 1 Wms. Saund. 153; and a covenant cannot be both joint and several (per Rolfe, B., Keightley v. Watson, post). So on the other hand, where the interest is several, although the covenant be (prima facie) joint, yet it shall be taken to be several. Bull. N. P. 157. "Where the covenant is to several for the performance of several duties to each, the covenant should be moulded according to the several interests of the parties, and each shall only recover for a breach so far as his own interest extends." Per Kenyon, C. J., in Anderson v. Martindale. maintain If the interest of the covenantees be several, they may separate actions, although the language of the covenant be (primâ facie) joint (z). "The result of the cases appears to be this, that, where the legal interest and cause of action of the covenantees are several, they shall 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" (a). If the covenantees can sue jointly, they are bound to do so (b), and vice versâ (c). "The rule is, that a covenant will be construed to be joint or several according to the interest of the (u) Tielens v. Hooper, 5 Exch. 830. (x) Rust v. Nottidge, 1 E. & B. 99. (y) Anderson v. Martindale, 1 East, 501. (2) James v. Emery, 8 Taunt. 245; Palmer v. Sparshott, 4 M. & G. 137. (a) Per Cur. Foley v. Addenbrooke, 4 Q. B. 197. (b) Foley v. Addenbrooke: per Parke, B., Bradburne v. Botfield, 14 M. & W. 564; but see Simpson v. Clayton, 4 B. N. C. 781. (c) Servante v. James, 10 B. & C. 410. parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint” (d). "The rule that covenants are to be construed according to the interest of the parties, is a rule of construction merely, and it cannot be supposed that such a rule was ever laid down as could prevent parties, whatever words they might use, from covenanting in a different manner. It is impossible to say that parties may not if they please use joint words, so as to express a joint covenant, and thereby to exclude a several covenant; and that, because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interest of the parties which they intended to protect, and construe the words according to that interest" (e). Where B. by indenture covenanted with C. and D., and to and with E. and F. his wife (who afterwards became the wife of D.), and their assigns, and to and with each of them, that he B.) at the time of sealing and delivering the indenture was lawfully and solely seised of a certain rectory; and an action was brought by D. and F. his wife, for a breach of the covenant: the judgment for the plaintiffs was reversed on error, upon the ground that notwithstanding the words "and to and with each of them," the other covenantee should have joined in the action (ƒ). Where it appears on the face of the declaration that each of the covenantees is to have a several interest or estate, then the addition of the words "with each of them," will make the covenant several in respect of their several interests; as if one by indenture demise Blackacre to A. and Whiteacre to B., and covenant with each of them, that he is lawful owner of both the said acres; then, in respect of the several interests, the covenant by those words is made several (g). Where the defendant and others, having formed a scheme for erecting by subscription a corn market, executed a deed poll, whereby they covenanted severally and respectively to and with each other and to and with the plaintiffs, each to pay the sums therein mentioned for erecting the same within four years, the money to be advanced at such times and in such proportions, &c., as a committee appointed by the subscribers should direct; and in case of the said committee not requiring any payments within the four years, then, at such times and in such proportions, &c. as the plaintiffs should direct, and, the committee having made default in requiring payments within the four years, the plaintiffs sued alone for the non-payment of the sum set opposite the defendant's name in (d) Per Parke, B., Sorsbie v. Park, 12 M. & W. 158. (e) Per Parke, B., Keightley v. Watson, 3 Exch. 723; per Muule, J., Beer v. Beer, 12 C. B. 78, acc. (f) Slingsby's case (Exch. Cham.), 5 Rep. 18, b. See Lane v. Drinkwater, 1 C. M. & R. 599. (g) Ibid. |