once brought, the land was thenceforth discharged. (e) So long, however, as the election had not been made, the rent passed with all its legal rights and incidents to the assignee, who, standing in the shoes of the grantee, had the same right of election as between the land and the person, and might, by suing out a writ of annuity, release the land, and turn the charge entirely on the person of the grantor. (ƒ)

As, however, no personal action other than the writ of annuity could be maintained in respect of a rent granted for life, or in fee, so long as the estate of freehold had continuance, (g) (there being remedies of a higher and more summary nature by way of distress and assise,) (h) no right of action could be transferred to the assignee of a freehold rent; but when the rent was granted for a term of years, then as an action of debt might, it should seem, be maintained for the recovery of such rent, (i) such right of action would pass to the assignee as incident to the interest in the land granted. Thus it has been held that rent reserved on a lease for years may be severed from the reversion, and assigned so as to give the assignee an action of debt for the arrears. (k)

"When rent is severed from the reversion, it is but in nature of an annuity, and an annuity or rent only, are grantable over, because they are things of continuance and are not personal." (1)

Certain premises were demised for a term of years by an indenture of lease, containing covenants by the lessee for the payment of rent; subsequently the rent and the counterpart of the lease, and the benefit of the covenants, were assigned; and it was held that the assignee might maintain debt against the lessee for the recovery of the rent. (m) But although the remedy by action of debt for the recovery of the specific sum payable out of the land passes to the assignee as incident to the direct interest in the land assigned, yet nothing in the shape of contract passes by the assignment, the assignee has no remedy upon any contract or stipulation made concerning the land, or for better securing the payment of the rent, he can maintain no action of COVENANT, for a covenant cannot run with a RENT. (n) Thus, where the defendant covenanted with

Cro. Eliz. 268.

(k) Newcomb v. Harvey, Carth. 161. Wilston v. Pinkney, Ventr. 242, 272; 2 Lev. 80, s. c. Ards v. Watkins, Cro. Eliz. 637. Loyd v. Langford, 2 Mod. 175.

(1) Popham, J., Ardes v. Watkins, Cro. Eliz. 651.

(m) Allen v. Bryan, 5 B. & C. 512.

(n) Milnes v. Branch, 5 M. & S. 411. Randall v. Rigby, 4 M. & W. 135. Boscawin v. Cook, 1 Mod. 223. Cook v. Herle, 2 Mod. 138.

Barnsley to pay him, his heirs, and assigns, a certain rent to be issuing out of the land of the defendant, and covenanted to build one or more messuages on the land for better securing the payment of the rent; it was held that this covenant was a mere personal covenant, operative only between the immediate parties thereto and their privies, and that the assignee of the rent had no title to maintain an action upon the covenant, either for the non-payment of the rent, or for not building the mes

suages.

Of the number of the plaintiffs when there has been a change of interest by assignment.

JOINT TENANTS AND TENANTS IN COMMON.-If the assignees have a joint interest in, and are jointly entitled to the estate to which the covenants are annexed, they must, as we have already seen, bring a joint action upon the covenants, and separate actions when they have several estates, and a separate and distinct damage has accrued to each. Joint tenants, therefore, must sue jointly in respect of their joint estate; but tenants in common may, it seems, when a reversion expectant upon the determination of a lease for years, upon which a rent has been reserved, comes to them, join in an action of debt for the rent, or sever at their election. (o) But upon covenants running with the land, and coming to parties either as tenants in common or joint tenants, the action must be joint or several, according as a joint duty arises in favour of all, or separate duties to each. (p)

A lease of certain houses was granted to Buckley, who covenanted with the lessor to repair them, and afterwards one moiety of the reversion, expectant upon the determination of the lease, was granted to Kitchen, and the other moiety to Knight, and the two brought a joint action against Buckley for a breach of his covenant; whereupon it was objected that the plaintiffs, being tenants in common, ought not to have joined in an action for repairs which concerns the inheritance, but ought to have brought several actions, according to their several estates; but the court held that they were properly joined. (q)

The tenant of a leasehold estate for ninety-nine years, held on renewable lives, on the other hand, having under-let part of the premises on a building lease for sixty-five years and one quarter, entered into a covenant

(0) Holt, C. J., Martin v. Crompe, 1 Lord Raym. 341. Midgeley v. Lovelace, Carth. 289. Harrison v. Barnby, 5 T. R. 246. Cutting v. Derby, 2 W. Bl. 1077. Johnson v. Wilson,

Willes, 254; 7 Mod. 347, s. c.
(p) Ante, 267-271.

(q) Kitchen v. Buckley, 1 Lev. 109; Litt. sec. 311-316.

to do all things necessary to obtain a renewal on fresh lives, when any of the persons on whose lives the estate was holden should die, so that the lessees might hold and enjoy all the demised premises for the full term. The lessees entered, and afterwards assigned their interest; and in the course of time, after divers mesne assignments, five-sixths of the premises became vested in Simpson, and the remaining sixth in another person, as tenants in common. Afterwards the covenant was broken, and all the persons on whose lives the lands were holden died; whereupon the term ceased, and Simpson and his co-tenant in common were deprived of the property. Simpson then brought an action to recover his proportion of the damages, when it was contended that the covenant was not apportionable, and that the owner of the remaining sixth part, should have joined in the action; but the court held, that as Gibson and the latter had separate and distinct interests in the term as tenants in common, the damages were in their nature several, and might well be apportioned by a jury according to the value of the share of each, and that the plaintiff therefore had a right to maintain a separate action in respect of the separate damage sustained by him. (r)

If the entire reversion is divided among several persons, each possessing a distinct interest in his particular portion, and a breach of covenant takes place, affecting the value of the entire reversion, each of the parties interested should bring a separate action, and the damages will be assessed and apportioned according to their several shares and interests in the subject matter of the covenant.

Personal covenants.-We have before seen that a covenant cannot run with a RENT; neither can it run with goods, or any personal, perishable chattel, so as to give the assignee a right of action upon it in his own

name.

Holmes, the owner of a brig, for example, by a charter-party of affreightment, let the brig for a voyage to Minorca to one Foulder, of London, who covenanted with Holmes to pay freight and demurrage to him or his order, and the brig during the voyage was sold, it was held that the covenant was not tranferred by the assignment of the property in the ship, in the same manner as certain covenants are said to run with the land, but that the legal interest therein still remained with Holmes, the late owner, who was the only party entitled to maintain an action upon it. (s) Whenever a covenant in a contract under seal is not annexed to a transferable estate in land, it is a mere personal covenant, which cannot, as has

(r) Simpson v. Clayton, 4 Bing. N. C. 758.
(s) Splidt v. Bowles, 10 East, 279. Sanders

v. Vanzeller, 4 Ad. & E.. N. S. 295. Spencer's case, 5 Co. 16, a.; Com. Dig., Cov. C. 3.

already been observed, be assigned so as to give the assignee a right of action thereon in his own name.

The common law in times past discountenanced the assignment of all rights and causes of action, as tending to increase maintenance and litigation, (t) and would not consequently suffer the right to the fulfilment of a contract of a personal nature to be transferred from hand to hand. But in these days the ancient rule of law has evaporated to a mere shadow. It no longer prevents the assignee from suing, but regulates merely the form of his action. He cannot sue in his own name, but he is permitted to bring his action, and to recover in the name of the original assignor, the party with whom the contract was entered into. Thus, if a bond be assigned, the assignee cannot maintain an action upon it in his own name, but he can sue and recover the money in the name of the obligee; (u) and the courts will set aside a release given by the latter, after notice to the obligor of the assignment, and prevent him from fraudulently interfering to defeat the action. (.) If a ship-owner charters his vessel for a voyage by a charter-party of affreightment under seal, and before the vessel sails, sells the ship, and assigns the charter-party to the purchaser, the latter cannot, as we have before seen, bring an action thereon in his own name, but he can sue and recover the freight covenanted to be paid in the name of the assignor. (y) In modern times, too, the legislature, yielding to the wants and necessities of mankind, has sanctioned the assignment of certain bonds and deeds, and authorised the assignees to sue upon them in their own names. Bail-bonds, for example, have been made assignable to the plaintiff in an action, or his attorney, by indorsement under the hand and seal of the sheriff, or other officer, who has taken the bail; and the assignment may be made either by the high sheriff himself, or by the under-sheriff in his name, or by a clerk in the under-sheriff's office. (z) Replevin bonds, also, are assignable in the same manner by the sheriff, or any officer who has power to grant replevins, "to the avowant or person making conuzance" in an action of replevin; (a) and an action has accordingly been held to lie at the suit of an assignee upon a bond taken and assigned by one of the sheriffs of London alone. (b) If the action be brought by the tenant against both the landlord and the bailiff who has levied the distress, so that there is both an avowant and a person making

(t) Co. Lit. 232, b. n. 1; 265, a. n. 1, ed. 1832. Master v. Miller, 4 T. R. 340.

(u) Legh v. Legh, 1 B. & P. 447. Heath v. Hall, 4 Taunt. 328. Phillips v. Clagett, 11 M. & W. 84.

(x) Alner v. George, 1 Camp. 392.

(y) Morrison v. Parsons, 2 Taunt. 407. (z) 4 Ann. c. 16, s. 20. Tidd's Pr. ch. 13. (a) 11 Geo. 2, c. 19, s. 23. Middleton v. Sandford, 4 Campb. 36.

(b) Thompson v. Farden, 1 M. & Gr. 535.

conuzance upon the record, then the bond may be assigned to both, so as to give them a joint right of action upon it; (c) or the avowant, as the party substantially interested, may take an assignment to himself alone, and bring a separate action upon the bond; (d) but if the action be brought against the bailiff alone, then he, being the only party on the record, and entitled to a return of the distress if he maintain his conuzance, is the only person who can take an assignment of the bond, and maintain an action upon it, and the only person who can sue the sheriff for taking insufficient pledges. (e) If the tenant neglects to appear and prosecute his suit in the county court, so that the bailiff has no opportunity of making conuzance, he may nevertheless take an assignment of the bond, and maintain an action thereon. (f)

The assignee of a Scotch bond, which is a negotiable instrument in Scotland, may maintain an action of assumpsit in this country against the obligor upon the implied promise raised by the indorsement and assignment to him of the bond, (g) and as the assignment of judgments by confession is authorised by act of parliament in Ireland, the assignee of such a judgment may maintain an action in this country upon it in his own name.(h)

India bonds also are now made assignable by statute. (i)

Although the assignee of a personal contract cannot maintain an action in his own name thereon, yet the assignment thereof may be the foundation of a new contract between him and the debtor enabling him to recover the original demand. As the assignment, for example, gives the assignee a claim in equity and a power of suing in the name of the original party to the contract in a court of law, any promise by the person liable upon the contract, to pay the demand or satisfy the claim, in consideration that the assignee will give him time for payment, or forbear for a particular period to sue him, will enable the assignee to maintain an action upon such new contract or promise. Thus, forbearance for a given time, on the part of the assignee of a bond, to sue the obligors at their instance, is a sufficient consideration for a promise by the obligors to pay the assignee at the expiration of that time. (k)

(c) Phillips v. Price, 3 M. & S. 180.
(d) Archer v. Dudley, 1 B. & P. 381, n.
(e) Page v. Eamer, 1 B & P. 378.
(f) Dias v. Freeman, 5 T. R. 195.

(g) Innes v. Dunlop, 8 T. R. 595.

(h) Geo. 2. 25 Geo. 2. O'Callaghan v.

Marchioness Thomond, 3 Taunt. 82.

(i) 51 Geo. 3, c. 64. Glyn v. Baker, 13 East,

509.

(k) Morton v. Burn, 7 Ad. & E. 19. Reynolds v. Prosser, Hardr. 71. Forth v. Stanton, 1 Saund. 210, n. 1, n. a.