I see no reason to doubt the correctness of the opinion of the learned Vice Chancellor that, under the last covenant, the buildings were to be replaced as often as burned during the term. Although a very literal reading might fail to find words expressly saying so, yet nothing is said to the contrary. The language is sufficiently applicable to the asserted obligation; and, in the events which have happened, it would be impossible for the lessee to perform the next preceding covenant, by insuring during the last ten years of the term, if he had no building there to insure. There are cases in which impossibility of performance, by reason of the destruction of the subject of a contract, affords an excuse for non-performance; but, in this instance, reading the whole contract together, it is, I think, clear enough that the agreement was, that the lessor should have at the end of the term a building, or if burnt too near the end of the term to be capable of rebuilding in time, then perhaps only the insurance money; but certainly one or the other: See Nouaille v. Flight, 7 Beav. 521; Hodson v. Williams, 39 L. T. N. S. 632.

The main question is, the liability of the defendant as an assignee. The original lessee of course remains liable on his contract.

First, are the assigns named in the covenant by virtue of the statute, as they are not named in the document itself?

The statute provides (schedule B 4) that, where the premises demised are freehold, the covenants 1 to 8 shall be taken to be made with, and the proviso 9 to apply to the heirs and assigns of the lessor, and when leasehold, to the lessor, his executors, administrators and assigns.

There is no such general provision touching the lessee, and that just quoted would not apply to an added covenant, being expressly confined to those enumerated. It is only in the form of the first covenant we have the word lessee extended to the representatives or assigns. The covenant in column one is, "1. That the said lessee covenants with the said lessor to pay rent;" and this, by column

two, means "1. And the said lessee doth hereby for himself, his heirs, executors, administrators, and assigns, covenant with the said lessor that he," &c. This, without repetition in any other covenant, is carried in its effect through them all. I take it that if, instead of the short form of column one, the extended form of column two were used throughout, the effect at common law would be the same, and the covenants would be all read as one, at least for the purpose of regarding each of them as expressed to be made by the lessee for himself, his heirs, executors, administrators, and assigns. And, further, inasmuch as we should see upon the face of the lease, through the magnifying medium of the statute, the extended form of words, the same effect would run on, just as if those words were written out in full, into any added covenants, so long, at all events, as the same grammatical structure was adhered

to.

Thus the first of these special covenants, namely, that one by which the lessee undertakes to build a house and other buildings, and to leave those buildings and all buildings and fences erected by him on the premises, thereon; and that they should be the property of the lessor, would properly be read as expressly binding assigns as well as the lessee himself. I attach no importance to the substitution of the words " party of the first part," and "party of the second part," for the words "lessor" and "lessee" given in the forms. It is true the statute (sched. B. 1) merely says that any name or names may be substituted for the words "lessor" and "les see;" but I do not think we should give this so narrow a construction as to confine it to proper names, or refuse to consider it as covering so usual a description of the parties as that here employed-particularly as the same description is used in the form of lease. given in schedule A.

But the plaintiff, or his conveyancer, if it was really the intention to bind the assigns of the lessee by the covenants to insure and to rebuild, has created the difficulty by altering the form, and beginning, as it were, a new series of

covenants, with the words, "And the said party of the second part further covenants with the said party of the first part,"-words which in this place take no extended meaning from the statute, while they break the connection. which so far had carried down the extended meaning. I confess I am unable to find any satisfactory reason for making the words say more than is conveyed by their ordinary signification, or for holding that the assigns are named in these later covenants.

This reduces the inquiry to one point: Is this covenant to rebuild one which, under the circumstances, can be held to run with the land, so as to be obligatory, either at law or in equity, upon assigns who are not named in it?

I have come to the conclusion, after much consideration, that we ought to hold that it does bind the assigns of the lessee.

On all questions concerning covenants running with the land we resort to the resolutions in Spencer's Case, 5 Co. 16, as the ultimate authority. That case, it will be recollected, was an action of covenant against an assignee of a lessee, upon an indenture by which the lessee had for him, his executors and administrators, covenanted with the plaintiffs that he, his executors or assigns, should build a wall upon part of the land demised. The first, second, and sixth resolutions are those which concern us at present: They read as follows:

"1. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being; as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee, although he be not expressly bound by the covenant: but in the case at bar, the covenant concerns a thing which was not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the 42-VOL. VII A.R.

covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being."

"2. It was resolved that in this case, if the lessee had covenanted for him and his assigns, that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore it shall bind the assignee by express words.

"6. If lessee for years covenants to repair the houses during the term, it shall bind all others as a thing appurtenant, and goeth with the lands into whose hands soever the term shall come, as well those who come in by act in law, as by the act of the party, for all is one having regard to the lessor. And if the law should not be such, great prejudice might accrue to him; and reason requires that they who shall take the benefit of such covenant when the lessor makes it with the lessee, should, on the other side be bound by the like covenant when the lessee makes it with the lessor."

I have passed over part of the second resolution which treats of covenants to do things merely collateral to the land, which do not bind the assignee even if named.

In the present case, if the house had never been built, and if the covenant to build resembled the covenant to rebuild, in omitting to name the assigns, the first resolution as well as the actual adjudication in Spencer's Case, would have been directly opposed to the defendant's liability upon the covenant; and, however difficult one might find it to appreciate the grounds of the distinction between a covenant relating to a thing in esse and one not in esse at the time of the demise, or to understand why the arguments in the second resolution should not apply with equal force when the assigns were not named as when they were named, the authority would be conclusive.

Here the house had been built before the defendant acquired the term; it had become part of the thing demised; it was, as a thing in esse, the subject of the covenants, (except the one as to building it, which had been performed) just as it would have been if it had been there when the lease was made; the defendant had taken the benefit of it, not merely by way of legal title, but with distinct appreciation of his ownership, as shewn by his

insuring it. If there had been a house on the place when the lease was made, no one supposes that a covenant to repair or rebuild would not have bound the unnamed assignee to repair or rebuild any house that had taken the place of the original one. If he is not bound in this case, he must owe his escape to some positive rule which we are not at liberty to disregard, even though we do not know the reason of it. What "reason requires," as it is put in the sixth resolution, so that prejudice shall not accrue to the lessor, would seem to be the same in the one case as in the other.

There are considerations of convenience in favour of holding such a covenant to run with the land. The ordinary covenant to repair and to yield up in good repair, extends in its terms, to buildings which at any time during the term shall be upon the land, as well as to those which are there at the time of the demise; and the repair it calls for includes rebuilding after a fire: Bullock v. Dommitt, 6 T. R. 650. If the two sets of buildings were subject to different rules, it might be sometimes embarrassing to determine to what extent the covenant bound the assignee and how far it left him free. The question would be pertinent which was asked by Parke, B., in Doughty v. Bowman, 11 Q. B. 444, “ Can part of the same covenant run with the land and part not?"

Doughty v. Bowman, is the only case I have seen in which the question of the liability of the assignee upon a covenant to build, when the assignee was not named and the building was not erected, was directly raised. The action was brought by a sub-lessee against the assignee of his immediate landlord upon a covenant that the landlord, his heirs, executors, or administrators, not naming assigns, would perform the covenants in the principal lease, and indemnify the plaintiff from them. One of those covenants bound the principal lessee and his assigns to build upon the demised premises. He had not done so, and he had assigned his reversionary interest in the term to the defendants. The lessor had entered by reason of