sealed by the lessee, who is to be charged (b). If A., for a valuable consideration, promises, by deed, not to do a certain act, an action of covenant may be maintained, for the breach of such promise; but an action on the case will not lie. As where A. recovered a debt against B., and B. paid the condemnation money to A. (c), whereupon A., by deed, released all actions, executions, &c. to B., and in the same deed promised to discharge all executions against B. upon the same judgment, and afterwards sued out execution thereon: the court were of opinion, that the promise being by deed, B.'s remedy was by an action of covenant, and not assumpsit (3).

An action of covenant has been holden not within the statute 3 & 4 Will. & Ma. c. 14 (d), which makes the devisee chargeable

(b) Bret v. Cumberland, Cro. Jac. 399, 521, fully stated, post, p. 452.

(c) Bennus v. Guyldley, Cro. Jac. 505; S. C. and S. P., by the name of Bemish v. Hildersley, said to have been adjudged,

1 R. A. 517 (A), pl. 3.

(d) Wilson v. Knubley, 7 East, 128. But this statute is repealed by stat. 11 Geo. IV. and 1 Will. IV. c. 47, s. 1, except as to persons who died before 16 July, 1830.

(3) Although it is a general rule that assumpsit will not lie, where there is a remedy of a higher nature, yet there are some exceptions to this rule; as where two persons entered into articles of partnership for a term of years, and the deed contained a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership; and they dissolved the partnership before the years were expired, and accounted together, and struck a balance, which was in favour of the plaintiff, including several items not connected with the partnership, and the defendant promised to pay it; it was holden, that assumpsit would lie on such express promise. And Buller, J., observed, that if no other articles had been introduced into the account, but those relating to the partnership, he should still have been of opinion, that assumpsit might have been maintained; for the question then would have been, whether a previous partnership being dissolved, and an account settled, was or was not, in point of law, a sufficient consideration for a promise. He had no difficulty in saying, that it was. Foster v. Allanson, 2 T. R. 479. See Rackstraw v. Imber, Holt's N. P. C. 368, and Fromont v. Coupland, 2 Bingh. 170. A stronger exception, however, to the general rule above mentioned, will be found in the case of Nurse v. Craig, ante, p. 276. In Burnett v. Lynch, 8 D. & R. 368; 5 B. & C. 589, (recognized by Park and Gaselee, Js., in Hancock v. Caffyn, 8 Bingh. 368,) it was holden, that case (not covenant) lay by the assignor against the assignee of a lease assigned by deed poll upon his implied duty to perform the covenant in the original lease, although the assignor had, by the assignment, parted with all his interest; and although assumpsit might lie, that case was the better form of action for the injury sustained by the assignor, in consequence of the assignee's breaches of covenant.

* Bulstrode v. Gilburn, Str. 1027; Baber v. Harris, 9 A. & E. 532; 1 P. & D. 360.

jointly with the heir for the debts of his testator in respect of lands devised to him: the remedy there given is confined to the action of debt. But now by stat 11 Geo. IV. & 1 Will. IV. c. 47, s. 3, in the cases mentioned in that act (which see, post, tit. "Debt," VI.) creditors may maintain debt or covenant against the heirs and devisees, or devisees of such devisees, jointly. And by the 4th section, if there is not any heir-at-law, the creditor may bring debt or covenant against the devisee solely.

II. Of the Exposition of Covenants.

COVENANTS are to be construed according to the obvious intention of the parties (e), as collected from the whole context of the instrument, ex antecedentibus et consequentibus, and according to the reasonable sense of the words. If there be any ambiguity, then such construction shall be made as is most strong against the covenantor (4); for he might have expressed himself more clearly(5). It is immaterial in what part of a deed any particular covenant is inserted (f); for, in the construction of it, the whole deed must be taken into consideration, in order to discover the meaning of the parties; as where, in an indenture of a lease of a colliery (g), two lessees covenanted jointly and severally in manner following, viz. &c., here followed a number of covenants in respect to working of the colliery, wherein the lessees covenanted jointly and severally; then followed a covenant, that the monies appearing to be due should be accounted for and paid by the lessees, their executors, &c., (not saying, "and each of them"); it was holden by the court (absente Kenyon, C. J.), that the general words, at the beginning of the covenants by the lessees, "jointly and severally, &c. in the manner following," according to the general rules of construction,

(e) Plowd. 329, cited by Ellenborough, C. J., Iggulden v. May, 7 East, 241. (f) Per Buller, J., 5 T. R. 526.

(g) Duke of Northumberland v. Ward Errington, 5 T. R. 522; Copland v. Laporte and Reynolds, 3 A. & E. 517, S. P.

(4) See the opinion of Sir J. Mansfield, C. J., in Flint v. Brandon, 1 Bos. & Pul. N. R. 78.

(5) In like manner, where the words of the grant are doubtful, they are to be construed in favour of the grantee. This general principle has been applied to the construction of leases; hence it has been holden, that under a lease for fourteen or seven years, the lessee only has the option of determining it at the end of the first seven years. Doe d. Webb v. Dixon, 9 East, 15, in which the authority of Dann v. Spurrier, 3 Bos. & Pul. 399, 442, was recognized.

extended to all the subsequent covenants on the part of the lessees throughout the deed, there not being any thing in the nature of the subject to restrain those words to the former part of the lease. In conformity to the rules before laid down for the construction of covenants, and in support of the apparent intention of the parties, covenants in large and general terms have been frequently narrowed and confined: As where A. leased a manor to B. for years, excepting all woods, great trees, timber trees, and underwood (h), &c., and covenanted with the lessee, that he might take fire-bote, super dicta præmissa; it was holden, that the lessee could not take firebote in a close of wood, parcel of the manor, because, by the exception of the wood, the soil thereof was excepted; and the words super præmissa should be intended of such things only as were demised. It was admitted, however, that, by the covenant, the lessee was entitled to take the wood upon the other lands, for though the wood was excepted, yet the land was demised.

The defendant sold the plaintiff a lease (i) for years of a manor, and entered into a bond, with a condition that he would not do, nor had done, any act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor, or any other person; it was holden, that the condition was confined to acts done or to be done by the vendor, on the ground of the latter words being referable to the former.

Where A. by indenture (k), in consideration of a certain sum, in nature of a fine, and of a yearly rent, demised land for twenty-one years, and covenanted, at the end of eighteen years of the term, or before, on request of the lessee, to grant a new lease of the premises "for the like fine, for the like term of twenty-one years, at the like yearly rent, with all covenants as in that indenture were contained;" it was holden, that this covenant was satisfied by a tender of a new lease for twenty-one years, containing all the former covenants, except the covenant for future renewal.

In covenant (1), the plaintiff declared upon an indenture, whereby the defendant demised to the plaintiff, for a term of years, certain parts of a messuage then lately parted off from the part occupied by the defendant, with certain easements belonging to the same, and a portion of an adjoining yard; and the defendant covenanted that he would permit the lessee (the plaintiff,) to have the use of the pump in the said yard jointly with the defendant, whilst the same should remain there, paying half the expenses of keeping it

(h) Cage v. Paxlin, 1 Leon. 116, cited by Ellenborough, C. J., 7 East, 241.

(i) Broughton v. Conway, Moor. 58, cited by Lord Ellenborough, C. J., in Gale v. Reed, 8 East, 89. To this class of cases where general covenants have been holden to be qualified, may be added that of Mil

ner v. Horton, M'Clel. 647, although its authority has been somewhat shaken in Smith v. Compton, 3 B. & Ad. 199.

(k) Iggulden v. May, 7 East, 237, affirmed on error, in Exch. Chr., 2 Bos. & Pul. N. R. 449. (1) Rhodes v.

Bullard, 7 East, 116.

in repair. The plaintiff assigned for breach, that during the continuance of the lease, the defendant, without reasonable cause, and in order to injure the plaintiff, took away the pump, although plaintiff was willing to have paid half the expenses of keeping the same in repair. On demurrer, it was holden, that the breach was ill assigned; for the use (6) of the pump was not a specific subject of the demise; and by the introduction of the words, "whilst the same should remain there," it appeared that the lessor meant to reserve to himself the liberty of removing the pump, from whatever capricious or unreasonable motive he might do so; and that it was not inconsistent with the stipulation, that the lessee should pay half the expenses of repair, whilst the pump remained on the demised premises.

Where (n) a lessee of a house and garden for a term of years covenanted with the lessor not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business, &c. without the license of the lessor, &c., and afterwards without the license of the lessor assigned the lease to a schoolmaster, who carried on his business in the house and premises, it was holden, that the assignment was a breach of this covenant. But where the covenant (o) was not to exercise particular trades or businesses specified, " or any offensive trade," it was holden, that it was not a trade to use the house as a lunatic asylum: the word trade in this covenant being applicable only to a business conducted by buying and selling. Where in covenant (p) for the further yearly rent stipulated for in case of converting pasture into tillage, the defendant pleaded, that the plaintiff accepted the original rent, as and for the rent due, without demanding the additional rent; it was holden, that the right of the plaintiff to recover a sum of money as stipulated damages and as additional rent, was not waived by receiving the sum due for the original rent; aliter, if it were a forfeiture.

Covenant lies (q) for rent reserved by indenture, and accruing before a re-entry for a forfeiture, notwithstanding the lessor has reentered, and under such re-entry is to have the premises again, "as if the indenture had never been made;" or in other words, re-entry for breach of covenant is no bar to covenant for rent accrued before the re-entry.

(n) Doe d. Bish v. Keeling, 1 M. & S. 95. (0) Doe d. Wetherell v. Bird, 2 Ad. & Ell. 161.

(p) Denton v. Richmond, 3 Tyr. 630;

1 Cr. & M. 734. See Astley v. Weldon, 2 Bos. & Pul. 350.

(q) Hartshorne v. Watson, 4 Bingh. N. C. 178.

(6) The demise of the use of a thing, is the demise of the thing itself. Pomfret v. Ricroft, 1 Saund. 321.

III. Of the different Kinds of Covenants:

1. Express, and herein of Express Covenants running with the

Land, p. 445.

2. Implied, p. 453.

3. Joint and Several, p. 455.

4. Void or Illegal, p. 459.

1. Of Express Covenants, and herein of Express Covenants running with the Land.

THERE is not any precise form of words necessary to constitute an express covenant (r); any form of words or mode of expression in a deed, which clearly evinces an agreement, will amount to a covenant, for breach whereof an action of covenant may be maintained. As if it be agreed between A. and B. (s), by deed, that B. shall pay to A. a sum of money for his lands on a certain day; these words amount to a covenant by A. to convey the lands to B. on that day. So if lessee for years covenant to repair (t), "provided always, and it is agreed, that the lessor shall find great timber;" this word agreed will make a covenant on the part of the lessor to find great timber. Secus, if the word agreed had been omitted (u). So if A. lease to B. on condition (x) that he shall acquit the lessor of charges, ordinary and extraordinary, and shall keep and leave the houses at the end of the term in as good a plight as he found them; if he does not leave them in good repair, an action of covenant lies. So where covenant was brought on a writing sealed (y), whereby the defendant's testator acknowledged himself to be accountable to the plaintiff for all such monies as should be charged by plaintiff on A. to be paid to B.; and alleged, that he the plaintiff charged a certain sum of money on A. to be paid to B., and that the defendant's testator had not paid it; it was objected, that covenant did not lie, and that the proper form of action was an action of account; but it was holden, that covenant would lie in this case, and on any words, in a deed

pur

(u) 1 Rol. Abr. 518, (C.) pl. 3. (x) 1 Rol. Abr. 518, (C.) pl. 5, 40 Ed. 3, 5, b.

(y) Brice v. Carre and others, Executors of J. S., 1 Lev. 47.