arise even from words put in a clause, introduced as a proviso or condition; if there be sufficient to show that the parties contemplated an agreement that the particular act mentioned in the clause should be done (u). Thus if a lessee covenant to repair, "provided always, and it is agreed that the lessor shall find timber, &c.," the lessor is liable to an action of covenant, if he refuse to find it; and the clause is not a mere qualification of the lessee's covenant (x). So, where a lease was granted to A., on condition that he should keep and leave the premises in as good plight as he found them; it was decided he was liable in covenant for omitting to leave the premises in good plight; for such an agreement was to be implied (y). But if the lessee of a term assign it by indenture, sealed by the assignee, and thereby assign "subject to the rent reserved by the lease, and the covenants therein," the latter cannot merely by force of these words be sued by the lessee in covenant for not paying the rent to the lessor (z).

The general mode of construing deeds to which there are exceptions, is to let the exceptions controul the instrument, so far as the words of it extend, and no farther; and then upon the case being taken out of the letter of the exception, the deed operates in full force (a).

Although in the construction of all instruments, it is the duty of the Court not to confine itself to the force of a particular expression, but to collect the intention from the whole instrument taken together, yet the judges are not authorised to deviate from the force of a particular expression, unless they find in other parts of the instrument expressions which manifest that the author of the instrument could not have the intention which the literal force of a particular expression may impute to him. However capricious may be the intention which is clearly and unequivocally expressed, every court is bound by it, unless it be plainly controlled by other parts of the instrument (b).

When case lies, see Burnett v. Lynch, 5 B. & C. 589; 8 Dowl. & R. 368; post. Assumpsit does not lie if the assignment contains the word "grant," on which covenant might be brought; Baber v. Harris, 1 P. & Dav. 360.

(a) Per Lord Kenyon, in Bowring v. Emslie, cited in 7 T. R. 216, note.

(b) Per the Vice-Chancellor, Hume v. Rundell, 1 S. & S. 177. An express particular covenant will qualify the generality of a covenant in law, or

A covenant was entered into by the assignor of certain shares in a patent right, that he had good right, full power, and lawful authority to assign and convey the said shares, and that he had not by any means directly or indirectly forfeited any right or authority he ever had or might have had over the same. It was held, that the generality of the former words of the covenant was not restrained by the latter (c). Lord Altanley, C. J., in delivering the judgment of the court, said, "From all the cases upon this subject it appears to be determined, that, however general the words of a covenant may be if standing alone, yet if from other covenants on the same deed it is plainly and irresistibly to be inferred, that the party could not have intended to have used the words in the general sense which they import, the court will limit the operation of the general words. The question therefore always has been, whether such irresistible inference does arise; for if such an inference does arise from concomitant covenants, they will control the general words of an independent covenant in the same deed."

The case of Barton v. Fitzgerald (d) is a strong authority that where neither the recital, nor the other covenants in a deed, evince a clear intention to restrict the plain general words of an independent clause, that clause shall receive its exclusive, unrestricted, and absolute meaning. In that case, the assignor in a deed of assignment of a lease, (after reciting the original lease granted to another for the term of ten years, which by mesne assignments had vested in him, and that the plaintiff had contracted for the absolute purchase of the premises,) bargained, sold, assigned, transferred, and set over the same to the plaintiff, for and during all the rest, &c., of the said term of ten years, in as ample a manner as the assignor might have held the same, subject to the payment of rent, and performance of covenants; and then covenanted that it was a good and subsisting lease, valid in law, of and for the said premises thereby assigned, and not forfeited, &c., or otherwise determined, or become void or voidable. It was held that the generality of this covenant for title, which was supported by the recital of the bargain for an absolute term

implied covenant; as in the case of the words demise and grant in a lease, followed by a covenant by the lessor for quiet enjoyment, against his own act, or the acts of others claiming under him, Platt on Cov. 381, 45; Merrill v. Frame, 4 Taunt. 329; Line

v. Stephenson, 6 Scott, 447; 5 Bing. N. C. 183, S. C.

(c) Hesse v. Stevenson, 3 B. & P. 565. See Platt on Cov. 379.

(d) 15 East, 530. See further as to covenants of this nature Platt on Cov. 34, 49, 137, 379.

of ten years, was not restrained by other covenants, which went only to provide for or against the acts of the assignor himself, or those who claimed under him; such as, 1st, a covenant against incumbrances, except an underlease of part by the assignor for three years; 2ndly, for quiet enjoyment; 3rdly, for further asAnd, therefore, as it appeared that the original lease was for ten years, determinable on a life in being, which dropped before the ten years expired, though not till after the covenant of the assignor; the court decided that the assignee might assign a breach upon the absolute covenant for title.

surance.

A covenant was entered into for quiet enjoyment during a term, without the lawful let, suit, interruption, &c. of J. M., his executors, &c., or any other persons whatsoever, claiming or having any estate or right in the premises, and that free, &c., discharged by J. M., his heirs, &c., defended and indemnified from all former gifts, grants, &c., by J. M., or their or either of their acts, procurement, &c. ; preceded by a covenant that the lease was a good lease, notwithstanding any act of J. M., and follorced by a covenant for further assurance by J. M., his executors, &c., and all persons claiming any estate under him or them. The court held (Park, J., dissentiente), that the covenant for quiet enjoyment extended only against the acts of the covenantor, and those claiming under him, and not against the acts of all the world. The court considered, that looking to the whole of the deed, and viewing the restrictive nature of the covenants immediately preceding and following, the intention of the party must have been to covenant only for his own acts, and those claiming under him; and that the words "all persons whatsoever," must be understood to mean persons of the description in the other covenants (e).

The defendant purchased an estate charged with an annuity to M. S., and as part of the bargain he covenanted with the vendor "to pay the annuity to the person who, for the time being, should be entitled thereto; and that he would at all times indemnify the vendor from all actions, claims, &c. on account of the annuity." The annuity was only charged on the land, and was not a personal charge on the vendor. The court decided, that the covenant to pay the annuity was absolute and independent, and not qualified by the covenant of indemnity; and therefore

(e) Nind v. Marshall, 3 Moore, 703; 1 B. & B. 319, S. C.

that the vendor might sue for the non-payment of the annuity to the party entitled, although he (the vendor) was not, and could not be damnified (ƒ).

In general an instrument must be construed by the provisions contained in it, and not by any thing dehors; but the acts of the parties may be considered, in order to ascertain their intention (g); and in some cases equity will look even to a second instrument, in construing the effect of a former (h). And several deeds made at the same time to effect one object, will, at least in equity, be construed as one assurance, but so that each shall have its distinct operation to carry on the main design (i). Thus, where a father put his son apprentice, and entered into a bond of 10007. for his fidelity, and at the same time took a covenant from his master, that he should at least once a month see his apprentice make up his cash. It was held, on a bill filed to be relieved against an action brought on the bond, that the bond and the covenant ought to be taken as one agreement; and therefore that the father should be answerable for no more than the master could prove the apprentice embezzled in the first month when the embezzlement began (k). So where a man covenanted by marriage articles to pay the legacies charged upon his wife's estate, and gave a statute and also a mortgage of his own estate to secure the same, and by an indorsement upon the mortgage the same was to be void, unless the wife's estate was settled upon him for life, &c., according to the marriage articles; this indorsement, though upon the mortgage only, was held to be sufficient in equity to discharge the statute and articles; for all the instruments being executed at one and the same time, authenticated by the same witnesses, and part of the same agreement, were to be viewed but as one conveyance (7).

Lex Loci.-We have observed that, in many instances, regard shall be had to the usage or custom of the place where a contract

was made, or to which it has reference, in order to discover the meaning of dubious terms used therein (m)." It may be nccessary to put a different construction on leases made in populous cities, from that on those made in the country. We know that in London different persons have several freeholds over the same spot; different parts of the same house are let out to different people. That is the case in the Inns of Court. Now it would be very extraordinary to contend, that if a person purchased a set of chambers, then leased them, and afterwards purchased another set under them, the after-purchased chambers would pass under the lease (n)."

A lease was granted of a warren in Suffolk: the landlord covenanted to pay 601. per thousand for the rabbits, which the tenant was to leave on the premises. It was held that parol evidence might be received, to show that by custom in Suffolk in such cases, one thousand rabbits meant one thousand two hundred; that there was an understanding between the parties to that effect; and that the landlord was therefore only bound to pay for rabbits reckoned at that rate (o).

It is, however, a question for the jury on the evidence, whether a contract has been made with reference to a particular custom shown to exist; and the mere fact of a custom existing in a particular district does not raise a conclusion of law, that the contracting parties used expressions in their contract according to such custom, but is only evidence from which a jury may draw that conclusion (p).

It is an undoubted general rule, that a contract shall be construed according to the law of the country where it is made, and in which it is to be performed; and not according to the law of another country into which either of the parties may happen to remove, and in which a suit thereon is instituted (q).

Cur. in Melan v. Duke de Fitzjames, 1 B. & P. 138; and De la Vega v. Vianna, 1 B. & Ad. 284. By the Code Napoleon, or French Civil Code, book 1, tit. 1, art. 13, &c. it is provided, "That the foreigner who shall have been permitted by the government to establish his domicile in France, shall enjoy in that country all civil rights, so long as he shall continue to reside there."

"A foreigner, although not resident