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the benefit of a condition or covenant respecting them may be taken, although the taker thereof be not named as a party to the said indenture.(g)

5. In case of the non-execution of a deed inter partes by a covenantee, and party to the deed, such party is not thereby necessaarily prevented from suing on the covenants entered into with him; at all events he may do so, if there have not been a total failure of consideration; and even where the covenants by the respective parties are mutually dependent, it appears that the nominal consideration in the deed would be sufficient to support the action.(r) In the particular case of a lease, indeed, non-execution by the lessor prevents the relation of landlord and tenant from being perfected according to the original intention of the parties; and, there- [ *5] fore, it is laid down broadly by some authorities (u) that "if a lease be agreed on, and the lessee executes his part, but the lessor does not execute his part, whereby there is not any lease, the covenants in the indenture sealed by the lessee, and also the bond for the performance of covenants, are void." But the proposition thus stated seems to require some qualification, because it is founded upon the assumption that "if the foundation of the covenant fails the covenant also fails;" a rule which, although true in the case of covenants mutually dependent, cannot be held generally applicable, inasmuch as a covenant, being under seal, does not by law require any consideration to support it. In a very recent case, moreover, which will be again adverted to, it was expressly held that the fact of non-execution of the lease by the lessor does not necessarily preclude him from suing upon the covenants in the lease.(v)

6. If an indenture of charter-party is made between A. and B. on the one part, and C. and D. on the other, with covenants on each side expressly made by and with A. and B., but A. alone seals on the one part, and C. and D. on the other; A. and B. may, nevertheless, join in an action against C. and D. for breach of one of the covenants: (x) and where joint covenantees, who have *not executed may join with those who have, they must [ *6] do so, unless there be an allegation of their express disclaimer, renunciation, or refusal, for their assent is to be presumed. (y) Where a deed-poll is used, it need not be executed by the covenantee provided he be named therein.(z)

7. In determining as to the joinder or non-joinder of covenantees, attention must be paid to the nature of their legal interest as well as to the wording of the covenant; for, if the interest is joint, all the covenantees

(9) 8 & 9 Vict. c. 106, s. 5, repealing 7 & 8 Vict. c. 76, s. 11, as from the 1st October, 1745. (r) Rose v. Poulton, 2 B. & Ad. 822;h Glazebrook v. Woodrow, 8 T. R. 366, cited 2 B. & Ad. 831, 832.h

(u) Com. Dig. Covenant, (F); per Lord Tenterden, C. J., Rose v. Poulton, 2 B. & Ad. 828; Soprani v. Skurro, Yelv. 18, post, s. 28.

(v) Cooch v. Goodman, 2 Q. B. 580, post, s. 28

(x) Clement v. Henley, 2 Roll. Ab. Faits, (F), 2; per Parke, J., 2 B. & Ad. 830 ;' Com. Dig. Covenant, (A. 1); Vernon v. Jefferys, 2 Stra. 1145; S. C. 7 Mod. 358.

(y) Petrie v. Bury, 3 B. & C. 353;m recognised Foley v. Addenbrooke, 4 Q. B. 208; Scott v. Godwin, 1 B. & P. 67; Vernon v. Jefferys, 2 Stra. 1145; S. C. 7 Mod. 358. (z) Platt on Covenants, 5, 7; ante, s. 4.

bEng. Com. Law Reps. 22. Id. 22. Id. 42. 1Id. 22. mId. 9. Id 45.

must join in bringing the action, and words of severalty shall not prevail the reason given for this rule being, that, if several, in such a case, we bring actions for one and the same cause, the Court would be in doubt which of them to give judment.(b) Therefore where A., by indent covenanted with several persons, and to and with each of them, that he lawfully seised, it was held, that, notwithstanding the words of severa all the covenantees should join in suing on the covenant.(c) In like m ner, where a covenant *was made to and with A., his execu [ * ] administrators, and assigns, and to and with B. and her assigns pay an annuity to A., his executors, &c., during B.'s life, it was held t although the benefit to be derived from the performance of the cover would enure to one only of the covenantees, yet both had a legal interes the performance of it, and consequently on the death of A. the righ action on the covenant survived to B. (d) The principle which gover the decisions in the preceding cases was likewise applied by the Cou Queen's Bench in that of Hopkinson v. Lee, (e) which will well illust the rule under consideration, and where the facts were as follows: articles of agreement under seal, between the defendant of the one part, the plaintiff and A. of the other part, after reciting that the defendant solicitor of one B., had applied to the plaintiff to lend to B. a sum of 2,9 out of certain moneys of the said A. then in the plaintiff's hands in trust A., on the security of certain stock in the funds and the covenant ther after contained; the defendant, in pursuance of the agreement, and in sideration of the premises, and of the plaintiff having advanced the sun 2,9007. to the said B. at the request of the defendant, did covenant with to the plaintiff, his executors, &c., and also as a separate and dist *covenant with and to the said A., her executors, &c., that he [ *8 ] defendant would pay the plaintiff, his executors, &c., the regu interest on the 2,9001. It was held that, notwithstanding the express wo of severalty, the plaintiff could not sue upon the above covenant with joining A., the legal interest of the covenantees being joint.

8. We must next observe that where a man covenants with two or m persons, using words which primâ facie import a joint covenant, but wh nevertheless admit of being construed severally, there, if the interest cause of action of each of the covenantees appear on the face of the deed be several, the words will be taken disjunctively, and the covenant will constructed to be a several covenant with each, and each covenantee m bring an action for his particular damage. (f) Where, therefore, a co nant, though joint in its terms, was for the payment of an annuity to ea

(a) Servante v. James, 10 B. & C. 413, arg.; Eccleston v. Clipsham, 1 Wms. Sau 154, (1); Petrie v. Bury, 3 B. & C. 353 ;p Scott v. Godwin, 1 B. & P. 67; Bac. Ab. (D.); James v. Emery, 8 Taunt. 245 ; S. C. 5 Price, 529.

(b) Per Lord Kenyon, C. J., 1 East, 501. (c) Slingsby's case, 5 Co. 18. b. (d) Anderson v. Martindale, 1 East, 497, cited 14 M. & W. 573.*

(e) 14 L. J., N. S., Q. B., 101, recognised per Parke, B., Bradburne v. Botfield, M. & W. 564; see also Wakefield v. Brown, Q. B., Trin. T. 1846, Law Times, vii. p. 450.

(f) Per Cur. Lane v. Drinkwater, 1 Cr., M. & R. 612; and supra, note (a); 1 W Saund. 154, (1), and cases there cited; Wilkinson v. Lloyd, 2 Mod. 82; see Palmer Sparshott, 7 Scott, N. R. 743. 748.

⚫Eng. Com. Law Reps. 21. Id. 10. Id. 4. Reprinted by T. & J. W. J. at $2 50 per

hall not prevails such a case, wer ould be in doubtfir e A., by indenta of them, that be words of sevent at.(e) In like m A., his execu and her assigns fe, it was held t ace of the coven d a legal interes: of A. the righ le which gover ed by the Coun will well illustra e as follows:-3,

of the one part, at the defendant B. a sum of 2.90 s hands in trusti e covenant there ement, and in co vanced the sum covenant with rate and disti s, &c., that he t ,&c., the reg the express word Covenant wither

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of two persons, it was held that the interests of the covenantees were several, and that they should sue separately on the covenant.(g) So, where the covenant was with several for payment of the purchase-money of an estate by instalments in equal portions, it was decided that a party entitled to one such portion might sue alone on the covenant. (h) By articles of agreement, reciting, that the defendant had contracted with A., as ["8a] agent for the plaintiff, and others, for the purchase of certain lands at the several prices therein mentioned, the defendant covenanted, with plaintiff and the other parties beneficially interested, to perform such contract, by paying the purchase-money as agreed on; and it was held, that the interest of the parties was clearly several, and that plaintiff might, consequently, sue alone for his share of the purchase-money, without joining the other parties beneficially interested. (i) Likewise, where the covenant is to several, for the performance of several duties to each, the covenant shall be moulded according to the several interests of the parties, and each shall only recover for a breach as far as his own interest extends.(k)

8 a. In several recent cases the law respecting the joinder of covenantees, or rather, the rule of construction applicable to covenants (1) has been much considered; and although some expressions at variance with each other have been made use of by the Courts of Queen's Bench and Exchequer, in delivering their *opinions with reference to this subject, yet it is

believed that the following propositions will be found established by [*86] the cases already cited, and the additional authorities referred to below :(m) -I. Where the covenant is in its terms several, but the interest of the covenantees is joint, they must join in suing upon the covenant-this rule being in accordance with Slingsby's case and Martindale v. Anderson, both of which cases have been repeatedly recognised as law.

8 b. II. Where the covenant is in its terms expressly and positively joint, the covenantees must join in an action upon the covenant, although as between themselves their interest is several. 66 If," said Parke, B., in a recent case,(n) "you covenant with A., B., and C. jointly, and the survivor of them, they must sue jointly on the covenant. It follows from that, that if you join parties to the deed who have no interest, you cannot sever and sue separately." And again: "It is surely as competent for a person, by express joint words, strong enough to make a joint covenant, to do one thing

(g) Withers v. Bircham, 3 B. & C. 254; Lilly v. Hodges, 8 Mod. 166. (h) James v. Emery, in error, 8 Taunt. 245; S. C. 5 Price, 529; see Shaw v. Sherwood, Cro. Eliz. 729.

(i) Poole v. Hill, 6 M. & W. 835;* as to the mode of taking advantage of the nonjoinder of a covenantee or obligee, see Cabell v. Vaughan, 1 Wms. Saund. 291, (ƒ); Scott v. Godwin, 1 B. & P. 67.

(k) Per Lord Kenyon, C. J., Anderson v. Martindale, 1 East, 501; Slingsby's case, 5 Co. 18 b; 1 Wms. Saund. 155, (2); Platt on Covenants, 126, 127. (1) See per Maule, J., Mills v. Ladbroke, 7 Scott, N. R. 1018.

(m) Bradburne v. Botfield, 14 M. & W. 559. 564. 572;* Hopkinson v. Lee, 14 L. J., N. S., Q. B. 101; Sorsbie v. Park, 12 M. & W. 146; Foley v. Addenbrooke, 4 Q. B. 197. 207; Mills v. Ladbroke, 7 Scott, N. R. 1005, 1023. Per Parke, B., Wootton v. Steffenoni, 12 M. & W. 134.*

(n) See the judgment Bradburne v. Botfield, 14 M. & W. 564, 572, the authority of which case was admitted by the Court of Queen's Bench in Harrold v. Whittaker, decided Trin. Term, May 26, 1846.

Eng. Com. Law Reps. 10. Id. 4. Reprinted at $2 50 per vol.

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so construed, it shall be taken to be joint or several, accordin
the interest of the covenantees.(0) "The result of the cases," obse
Lord Denman, C. J., in Foley v. Addenbrooke,(p) "appears to be this,
where the legal interest, and cause of action of the covenantees are sev
they should sue separately, though the covenant be in joint terms; but
several interest and the several ground of action must distinctly appe
It follows from the last rule, that a covenant cannot by express word
made joint and several with the covenantees, where their interests are
eral; neither can it be so where their interest is joint, because the C
will construe a covenant so worded as several or joint according t
interest of the covenantees.(g)

9. When one of several joint covenantees or obligees dies, the survi
and not the personal representatives of the deceased, must sue, with an a
ment in the *declaration of his death;(r) whereas, on a joint
[*8 d]
several bond, or on a several bond or covenant, the representa
of a deceased covenantee or obligee may sue in respect of his sev
interest.(s)

10. After assignment of land, or of a chattel real,(t) in other cases between landlord and tenant, it seems clear that, when the assignee of covenantee is owner of the land to which the covenants relate, he h right to sue on such as run therewith,(u) provided he be in of the s estate as the original grantee or covenantee; (x) the latter party, howe may sue in respect of the privity of contract, although not owner of land to which the covenants relate.(y)

11. Where an express covenant runs with the land, as a covenant title, it is not necessary that the assignee be expressly named therein order to entitle him, being owner of the land, to sue on the covenant; this remark applies also to the heir, who may be considered as assignee, (r) and who is entitled to sue even for a breach of cover

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(0) Judgment, 14 M. & W. 572.*

(p) 4 Q. B. 207. By a covenant "joint in terms," it is presumed that his Lord means a covenant primâ facie joint.

(q) Judgment, 14 M. & W. 573.* In Bradburne v. Botfield, ante, the question, whe one of several lessors being tenants in common can sue on a covenant to repair m with all, was expressly raised on demurrer, but was not decided, the Court observ "There is no decisive authority either way. That all could sue is perfectly clear," ci Kitchen v. Buckly, Sir T. Raym. 80; S. C. 1 Lev. 109; Judgment, Foley v. Ad brooke, 4 Q. B. 208. Wakefield v. Brown, Q. B., Trin. T. 1846; Law Times, vol p. 450; post, s. 32.

(r) Rolls v. Yate, Yelv. 177; affirmed in error, 1 Bulst. 25, 26; Scott v. Godwin, & P. 74; 1 Wms. Saund. 154, (1); Anderson v. Martindale, 1 East, 497.

(s) Withers v. Bircham, 3 B. & C. 254 ;u Shaw v. Sherwood, Cro. Eliz. 729. (1) The right of the assignee is the same in either case: Campbell v. Lewis, 3 1 Ald. 396, in error, affirming Lewis v. Campbell, 8 Taunt. 227; Noke v. Awder, Eliz. 373, 436.

(u) Spencer's case, 5 Co. 16; Middlemore v. Goodale, Cro. Car. 503; Co. Litt. 385 (x) As to this rule, see Roach v. Wadham, 6 East, 289; and how to obviate its co quences, 1 Smith's Leading Cases, 1st ed. 31.

(y) Stokes v. Russell, 3 T. R. 678; affirmed in error, 1 H. Bla. 562; post, s. 46. (r) Spencer's case, 5 Co. 16; Co. Litt. 385. a.; Com. Dig. Covenant, (B. 3); Derisle Custance, 4 T. R. 75.

tEng. Com. Law Reps. 45. Id. 10. Id. 5. Reprinted at $2 50 per vol.

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in the ancestor's lifetime, provided no actual damage were sustained by the ancestor ;(s) as on a covenant for further assurance with the ancestor, and refusal to levy a fine at his request, in consequence of which refusal the heir was evicted after the ancestor's death.(t) So, the devisee is assignee of the testator, and may sue for breach of a covenant in a conveyance by defendant to the testator, that the defendant was lawfully seised, and had a good right to convey; for such covenant runs with the land: and though the breach occurred in the testator's lifetime, yet it is a continuing breach in the time of the devisee; and it is sufficient to allege for damage, that thereby the lands are of less value to the devisee, and that he is prevented from selling them so advantageously.(u)

12. It must be observed, however, that, as a general rule, this right of the assignee is confined to such breaches of covenant as are committed subsequent to the assignment and during the continuance of his estate as assignee;(x) therefore, where a mortgagee died during the continuance of the mortgage term, but after default by the mortgagor, and by will bequeathed the mortgage money to plaintiff, who was likewise appointed his executor; it was held that plaintiff could not maintain *covenant as assignee of the term in respect of such default by the mortgagor, for this [*10] was a personal covenant, collateral and not running with the land, and the breach complained of occurred in testator's lifetime.(y)

13. The preceding observations are confined to covenants relative to land or a chattel real, for it is a rule that covenants do not run with personalty.(z) Hence a covenant in a charterparty to pay freight is not transferred to the assignees of the ship by a bill of sale made during the voyage. (a) And where A., seised in fee of certain premises, conveyed them to defendant and another, in trust to pay a certain rent to A., his heirs and assigns; and defendant covenanted with A., his heirs and assigns, for the payment of the said rent, which was subsequently demised by A. to plaintiff for a long term; it was held that plaintiff could not sue defendant in covenant for nonpayment of the rent, for there was neither privity of contract nor privity of estate.(b) Nor can the assignee of an apprentice, according to the custom of the city of London, sue on the covenants in the indenture of apprenticeship to which he is no party, for custom cannot make an assignee so as to entitle him to sue.(c)

14. It is a well-established principle of law, that choses in action are not assignable, so as to entitle the assignee *to sue thereon in his own

name;(d) and even in equity it is usual, if it be not always indis- [*11]

(8) 1 Sugd, V. & P. 10th ed. 371, and 2 Id. 458, and cases there cited, post, s. 129.
(t) Jones v. King, 4 M. & S. 188, affirming judgment in King v. Jones, 5 Taunt. 418
(u) Kingdon v. Nottle, 4 M. & S. 53.

(x) Lewes v. Ridge, Cro. Eliz. 863; Com. Dig. Covt. (B. 3.)

(y) Canham v. Rust, 2 Moore, 164.

(z) Spencer's case, 5 Co. 16, 3rd Resolution; Seddon v. Senate, 13 East, 63.

(a) Splidt v. Bowles, 10 East, 279.

(6) Milnes v. Branch, 5 M. & S. 411; but covenant in such a case, and not debt, is the proper form of action by the covenantee ; Randall v. Rigby, 4 M. & W. 130,* and the cases there cited; post, s. 172.

(c) Barker v. Beardwell, 1 Show. 4; Com. Dig. Covt. (B. 3).
(d) 2 Bla. Com. 442.

MAY, 1847.-3

yEng. Com. Law Reps. 1. Reprinted by T. & J. W. J. at $2.50 per vol.

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