Id, that the on for the breach and is in law Of which the c made for 10 ty years, rear ds the o se pandanti Lee should Or the reverse guished in 1016, where thes urrenderedra hant unde e estent de obligation Tour theed tant to of the statute, an assignee of the reversion of that estate out of which the lease is granted (k). And this is so, even although the person leasing under the power, e. g. the tenant for life, have an equitable estate only (1). 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 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 the defendant covenanted with J. B., his heirs and assigns, to pay to him, his heirs and assigns, the said rent, and to build one or more messuages on the premises, for better securing the rent: and J. B. demised the said rent to plaintiffs; it was held, 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 (m). Lessee for years assigns over his term by indenture to J. S., and covenants with J. S. and his assigns for quiet enjoyment; 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 (n). But by 29 Car. II. c. 3, s. 3, leases, estates, or interests, either of freehold, terms of years, or any uncertain interest, cannot be assigned, unless by deed or note in writing, signed by the assignor or his agent, or by operation of law; and now by 8 & 9 Vict. c. 106, a lease of any tenements required by law to be in writing, and an assignment of a chattel interest, shall be void, unless made by deed. A person to whom an apprentice is assigned, according to the custom of the city of London, 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 (o). As an assignee of a lessee is charged in covenant for repairs, though assignees are not named, in respect of his having the possession; so an assignee of the reversion has an action of covenant for default of repairs in respect of his having the reversion, though assignees are not named in the covenant (p). Tenants in common may join in covenant for repairs (q), but no case has decided that they must join (r). Hence an assignee of (k) Isherwood v. Oldknow, 3 M. & S. (1) Greenaway v. Hart, 14 C. B. 340. Lev. 109; T. Raym. 80. (q) Kitchen v. Buckly, supra. (r) Per Tindal, C. J., in Simpson v. Clayton, 4 B. N. C. 781; but see Wallace v. McLaren, 1 M. & Ry. 518, n., and ante, p. 506. M M part only of the interest of the original lessee may sue upon a covenant to procure a renewal of letters patent, without joining the assignee of the remaining part; for they are tenants in common, having separate and distinct interests in the term, and the damages are, in their nature, severable, and may be apportioned by the jury according to the value of the share of each (s). VI. Against whom the Action of Covenant may be maintained. 1. Against Heir.-An action of covenant will lie against the heir on a covenant by his ancestor for himself and his heirs (t). It is not necessary to allege in the declaration, that the heir has lands by descent; but, if the heir has not any lands by descent, he may insist on it by way of defence to the action. See a form of plea, Lutw. 290. In an action on a breach of covenant in a lease for quiet enjoyment, the declaration, after stating that the defendant's ancestors granted the lease in question, alleged, that the reversion vested in the defendant by assignment; the defendant pleaded, that the reversion did not vest in him modo et formå; it appeared in evidence that the estate descended to the defendant as heir at law to the lessors; whereupon it was objected, that the reversion vested in the defendant by descent, and not by assignment. But the court was of opinion, that it was sufficient to prove the substance of the issue, which was, that the defendant was clothed with such a character as would make him liable on the covenant: and that was sufficiently proved by showing that the estate was vested in him; for whether he was in possession as assignee or heir at law, he was equally liable on this covenant (u). 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. But a covenant by a testator to teach an apprentice his trade is binding on the executors, and they ought to see that the apprentice is taught his trade: if they are not of the same trade, they ought to assign him to another who is, so that he may be taught according to the covenant (v). (s) Simpson v. Clayton, supra. (u) Derisley v. Custance, 4 T. R. 75. Executors and administrators may be sued as assignees (x); for they are assignees in law of the interest of the term (y); but an executor in such a case "may by proper pleading discharge himself from personal liability, by alleging that he is no otherwise assignee than by being executor, and that he has never entered or taken possession of the demised premises; and, as is well known, from all liability as executor, by alleging that the term is of no value, and that he has fully administered, &c." (z). Where covenant is brought against an executor, although the breach assigned be for default of reparation committed in the time of the executor, yet the 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 (a). Where, however, an administrator had entered and occupied premises demised by indenture to the intestate, it was held, that a plea to an action of covenant for non-payment of rent, taxes and non-repair, stating that the premises yielded no profit, could not be supported (b); and in such a case the judgment would be de bonis propriis (c). The general rule is, that the executor of a lessee who enters is liable as assignee, except that, with respect to rent, his liability does not exceed what the property yields. No such exception applies to the covenant for repairs (d). 3. Against Assignee.-1. If the covenant extends to a thing in esse, parcel of the demise, as a covenant, to repair (e), to reside constantly on the demised premises (ƒ), to leave part of the land demised every year for pasture (g), to insure premises situated within the limits mentioned in the 14 Geo. III. c. 78, by which the landlord is enabled to have the sum insured laid out in rebuilding the premises (h), to supply the premises demised with a sufficient quantity of good water at a certain rate per house (i), 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 (k). Where it is proved that A. is tenant, and that upon his quitting the premises B. takes pos (x) Tilney v. Norris, Carth. 519. (a) Collins v. Throughgood, Hob. 188. Hornidge v. Wilson, 11 A. & E. 645. (f) Tatem v. Chaplin, 2 H. Bl. 133. session, B. may, in the absence of evidence to the contrary, be presumed to have come in as assignee of A. (1). 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 (m).-Thus where a lease contained a demise of all mines and minerals then opened or discovered, or which might during the term be opened or discovered, under certain lands, and also all smelting mills then standing upon the lands, with full liberty to sink shafts there, and to build thereon any mills or other buildings requisite for working the mines; and the lessor afterwards granted his reversion to A., who by will devised the same to the plaintiffs; it was held, that the covenant to build the new smelting mill (which was implied from the language of the deed) tended to the support and maintenance of the thing demised, and that the assignee of the reversion might therefore sue upon it (n). But a covenant to repair the demised premises, and all other buildings which might thereafter be erected during the term, i. e., substantially, a conditional covenant, to repair them if erected, runs with the land and binds the assignee, although he be not named (0). 3. If the covenant relates to a thing merely collateral to and not in any respect concerning the thing demised, as a covenant to build a house on the land of the lessor which is not parcel of the demise; or to pay any collateral sum to the lessor, or to a stranger; the assignee, though named, is not bound by such covenant; because the thing covenanted to be done is merely collateral, and not in any respect touching or concerning the thing demised (p). In order to bind the assignee, even though named, it is essentially necessary, that the thing covenanted to be done, or not to be done, should directly affect the nature, quality or value of the thing demised, or the mode of occupying it. Hence, where in a lease of land, with liability to make a water-course, and erect a mill, the lessee covenanted for himself and his assigns not to hire persons to work in the mill who were settled in other parishes, without a certificate of their settlement; it was held, that this covenant was not binding on the assignee of the term: because the state of the thing demised would be the same at the end of the term, whether the parish were more or less burdened with poor; and although the value of the reversion would not be so great if the poor's rate were increased, yet that burden would be increased (1) Doe v. Murless, 6 M. & S. 110; Doe v. Williams, 6 B. & C. 42. (m) Spencer's case, 2nd Res.; but see Minshull v. Oakes, infra. (n) Sampson v. Easterby, 9 B. & C. 505; (in error) 6 Bingh. 644, S. C. (0) Minshuil v. Oakes, 27 L. J., Exch. 194. (p) Spencer's case; and see Mayho v. Buckhurst, Cro. Jac. 438. by a collateral circumstance: and, the work to be done being the same, whether it were done by workmen from one parish or another, could not affect the mode of occupation (g). "The In 4. If a covenant relates to personal goods, as on a demise of sheep for a certain time, if the lessee covenants for himself and his assigns to re-deliver the sheep at the end of the time, and the lessee assign the sheep over, this covenant will not bind the assignee, though named, because there is not any privity (r). covenant in this case is not collateral, but the parties, that is, the lessor and assignee, are total strangers to each other, without any line or thread to unite and tie them together, and to constitute that privity which must subsist between debtor and creditor to support an action." Wilmot, C. J., in Bally v. Wells, Wilmot, 345. the case of realty there subsists a privity between the lessor, and the lessee and his assigns, in respect of the reversion; but in the case of a lease of personal goods, there is not any reversion, but merely a chose in action in the personalty, which cannot bind any but the covenantor, or his personal representative. To carry the lien of a personal obligation over to an assignee, and to make him the object of an action at the suit of a person with whom he did not originally contract, he must in all cases be named, and there must also be a privity between the assignee and the person to whom he becomes engaged; and the covenant must respect the thing leased. The chose in action, which of itself is not assignable, loses that property under those circumstances, and in a waiting dependent state follows its principal; and assignees of leases become liable to assignees of reversions, and vice versa." Per Wilmot, C. J., in Bally v. Wells, Wilmot, 345. A lessee of tithes covenanted for himself and his assigns not to let any of the farmers occupying the estate out of which the tithes arose have any part of the tithes without the consent of the lessor; the lessee assigned to the defendant, who suffered several of the farmers to retain part of the tithes without the lessor's consent; it was contended, that an action would not lie against the defendant, inasmuch as the covenant was merely personal and collateral, binding the lessee only; that tithes were incorporeal, lying in grant, and would not, therefore, endure such an annexation of covenant to them. But the court were of opinion, that there was not any difference between land and tithes as to the annexation of covenants; that this covenant was not a mere collateral covenant, but related to the thing demised, materially and essentially tending to preserve it, and as such obligatory on the assignee being named, and there being a privity in respect of the reversioner, the lessor (s). Covenant by lessee against the assignees of lessor. The lessee (q) Mayor of Congleton v. Pattison, 10 East, 130. (r) Spencer's case, 3rd Res. |