A. to pay him 10l. for his service. Or it is im-
plied, or in law; i. e. when the deed doth not ex-
press it, but the law doth make and supply it:
as when one doth make a lease for years by the [Butler's notes
words "demise or grant," without any express p. 384 a]
covenant for quiet enjoying; in this case the law
doth intend and make such a covenant on the part
of the lessor; which is, that the lessee shall quietly
hold and enjoy the thing demised against all per-
sons, at least having title under the lessor, and at
least during the lessor's life, and, (as some think,)
during the whole term; and hereupon an action of
covenant may be brought against him in the rever-
sion; so that if the heir that is in by descent, put
out the termor of his father, the termor may have
*this action against him (2). [But an agreement
or stipulation negativing an obligation, and being
only for indemnity, is not a covenant. It does not
create any duty. It is not a negative, pregnant
with an affirmative. Bartlett v. Hodgson, 1 Term.
Rep. 42. It is a clause of discharge and indem-
nity, not of obligation.] A covenant is also either
real; i. e. that whereby a man doth bind himself
to pass a real thing, as lands or tenements; as a
covenant to levy a fine of land, in which case the
land itself is to be recovered; [this is an anomalous
case, Cruise on Fines, p. 13;] or when it doth run [3 Black. Com.
in the realty so with the land, that he that hath 156]
the one hath or is subject to the other; and so a
warranty is, [and is] called, a real covenant.
it, [the covenant,] is personal; i. e. when it doth
run in the personalty, and not with the land, but
some person in particular shall have benefit by it,
or be charged with it: as when a man doth cove-
nant to do any personal thing, as build or repair a
house, serve him, or the like; [and covenants in
the realty, and running with the estate of the land,
are at the same time as against the covenantor, his
executors and administrators, and also against his
heirs, if bound covenants in personam (3). And
(2) Where the covenant is created by law, the covenantee cannot bring an action of covenant, if he be not ousted by one, who has a title; but it is otherwise in case of an express covenant. 2 Brownl. 161, [too general.] The distinction between implied covenants by operation of law, and express covenants, is, that express covenants are taken more strictly. Per Ld. Mansfield, 3 Burr. 1639. [Loyd v. Tomkins, 1 Term. Rep. 671.]
(3) What shall be a real, and what a personal covenant, see Vin Abr. (G. 2.) Bac. Abr. Covenant (E.) Com. Dig. Covenant (A. 2.) Gilb. Law of Covenants, 105.
Co. 1. 154. Lit. Bro. Sect. 309.
27 H 8. 16. Plow. 308.
F. N. B. 145.
these also are some of them said to be inherent;
i. e. such as are conversant about the land, [and
knit to the estate in the land ;] as that the thing
demised shall be quietly enjoyed, shall be kept in
reparations, shall not be aliened; or if it be to be
sold, that the lessor shall have the first refusal; to
pay rent, not to cut down timber trees, or do waste;
to fence the [demised] coppices when they be new
cut, to make further assurance, or the like. And
some of them are said to be collateral; i. e. that
are conversant about some collateral thing that
doth nothing at all, or not so immediately concern
the thing granted; as to pay a sum of money in
gross, to build a house in another man's ground,
to make a feoffment or lease of other land, to give
other security to perform the covenants, or to pay
the rent, or that the lessor shall distrain for the
rent in some other land than that which is de-
mised, or the like; [or are not knit to the estate,
because they are entered into with a person who is
a stranger to the estate;] these are collateral cove-
nants (4). There is also a covenant to stand
seised of land to uses, which is now become a kind
of conveyance of land; [i. e. an assurance, through
the medium of an use, arising from the seisin of
the covenantor, and the execution of that use by
the statute of 27 Hen. 8, c. 10;] for which read
Uses at large (5).
The most frequent use of a covenant is to bind 3. The use and operation of it. a man, [his heirs, &c.] to do something in futuro, and therefore it is for the most part executory; and if the covenantor do not perform it, the covenantee, [and his representatives, and in some cases his assigns,] may have thereupon for his [and their] relief, [viz. reimbursement in damages,] an action, or writ of covenant, against the covenantor, [his heirs, executors, and administrators,] so often as there is any breach of the covenant (6). And this writ of covenant is therefore defined to be a writ lying where a man is bound by a covenant in
A writ or action
Quid.
of covenant.
(4) As to collateral covenants, see 4 Burr. 2446; 2 Wils. 27; [and Lord Uxbridge v. Stoneland, 1 Ves. 56; collateral covenants being, not to do any thing relative to the premises leased; and therefore, not running with the land, will bind executors, being representatives, but will not bind assigns.]
(5) See accordingly, and further as to the different kinds of covenants, 1 Wood, 354. (6) It is a general rule in equity, that what is covenanted to be done, is considered as actually done. 3 Atk, 534.
4. What shall be said a good cove
a deed, and hath broken it. And in this case
commonly the party damnified shall recover da-
mages only for the breach; and if he have a judg-
ment in an action brought for one breach, and
after the covenantor doth break the covenant
again; in this case, [provided the covenant has so
stipulated,] he may bring a new action, and so for
every breach. But a covenant doth sometimes
also make a transmutation of [an use, and through
its medium, and of the statute law, of] a property
and possession, [but not necessarily or formally of
the possession] of things, as in case of a covenant
to stand seised of land to uses, for which see Use.
And in case where one doth covenant that another
shall have a piece of land for five years; this
[agreement, unless there be a context or a reason,
as a custom or a condition to be broken by such
effect,] is a good lease for five years, for which
see Lease. And in case where one doth cove-
nant with another, that if he pay him 107. such
a day, he shall have all his cattle in Dale, or his
lease for years he hath of the manor of * Dale; in
this case it seems if he pay the money at the time
he shall have the property of the goods, and of the
lease for years. [This proposition proves, that
an article of personalty may be granted on a con-
dition precedent. As to leases for years, it has
been doubted whether a man could grant the residue
of a term, reserving part of it. Jermyn and Or-
chard, Show's Parl. Cas. 199. It seems how-
ever that a term, and consequently the residue of
a term, may be granted from a day to come, or
after an event; with the exception, that a grant
after the death of A. would be void. Sed query.]
It is said therefore that in some cases upon the
writ of covenant, [the only instance is on the writ
of covenant for a fine,] the party shall recover the
land itself out of which he hath been ejected; [and
even on this covenant, the land is not recovered
by force of the covenant, but only by its means, as
laying the foundation for a judicial acknowledg-
ment of title. But see 2 Black. Com. p. 350.]
A covenant may be in the affirmative, or in the Plow. 330. nant in a deed, negative (7). And it may be executed, i. e. that 27 H. 8. 16.
(7) As to affirmative and negative covenants, see Vin. Abr. Covenants (D. a.) and 1 Wood, 356.
Co. 3. 63. Ewer's case, 8 Jac.
Lit. Bro. Sect. Lord Cromwell's
450. Co. 2.
162 a thing is done already; or executory, i. e. that a upon which an thing shall be done, [and either at one time, or from action of covetime to time,] hereafter; and these are all good. But and what not. if it be of a thing present, as if I covenant that my the manner of 1. In respect of horse is yours; this is void. [This covenant amounts making it. to a gift of the horse. Plowd. Com. 308 a; Com. F.N.B.145.G. Dig. Covenant (A. 1.)] "And these covenants, being made by a deed poll, are as good and effectual, as when they are made by a deed indented, so as the party have the deed to show; for otherwise a common person cannot have an action of covenant; for it [covenant] doth not lie upon a verbal agreement; neither can it [covenant] be grounded without a writing [sealed and delivered,] except it be by a special custom, as in London (8.) [But an agreement by writing, not sealed and delivered, gives a remedy by assumpsit, viz. the promise.] And there needs not, in this case, formal and orderly words, as covenant, promise, and the like, to make a covenant on which to ground an action of covenant (9), for a covenant may be had by any other words; and upon any part of an agreement in writing, in what words soever it be set down, for any thing to be or not to be done, the party to or with whom the promise or agreement is made, may have this action upon the breach of the agreement (10). [Com. Dig. Covenant (A. 1.)] And therefore if these words be inserted in a deed, amongst other covenants, "that the lessee shall repair, provided always that the lessor shall allow timber; or that the lessor [read, lessee] shall scour ditches, provided always that the lessor do carry away the earth;" these are good covenants on both sides. • And if a lease be made of houses by patent, to I. S. for twenty-one years, and therein is inserted this clause, and that the said I. S. and his assigns shall repair the houses when they shall be decayed; this is a good covenant. And so also it is where these
Dyer, 57. 150. 21 H. 7. 37. 40 E. 3. 5.
'Adjudged Pasch. 14 Jac.
B R. Sir Thomas Bret versus
Cumberland's.
(8) Or by the custom of any other place; though such custom shall be taken strictly. 1 Leon. 2.
(9) Any words, which show the parties concurrence to the performance of a future act, being effectual for that purpose. 1 Leon. 324. 1 Ch. Ca. 294. The word covenant is not necessary to make a covenant. 1 Roll. Abr. 518. No particular technical words are requisite towards making a covenant. 1 Burr. 290.
(10) And therefore if by articles of agreement it is said, that it is intended a fine shall be levied, this amounts to a covenant to levy it. 2 Mod. 91. So also in an indenture of apprenticeship, there are not inserted the formal words of a covenant, but only an agreement that such things shall be done by the parties. 1 Roll. Abr. 519. Gilb. Covenant, 14.
or the like words be inserted amongst other cove-
nants, and that the lessee shall pay 10s. a
year rent, or that the lessee shall not alien; these
shall be said to be covenants, unless it be in such
cases where there is some other means to enforce
the doing of the thing. As if, in case of the rent, Bro. Covenant
there be a clause of distress, re-entry, or nomine 21. 26. & Co. &
Dyer, ubi supra.
pana; [or from the context it can be collected,
that there is not any agreement]. And in all cases
regularly, where words that do begin the sentence
be conditional, and have the effect of a condition,
and do give another remedy, there they shall not
be construed to make a covenant, as in the cases
of condition before. And yet, if words of condi-
tion and words of covenant be coupled together in
the same sentence; as provided always, and it is
covenanted, or the like; in such cases the words
may be construed to make a covenant and a
condition both; [viz. at one and the same time.]
If a man make a lease for life by indenture, and Dyer, 150.
therein are inserted these words, it is provided
that if the lessee die within sixty years, that then
his executors and assigns shall have the land until
the sixty years be ended, to be accounted from the
date of the indenture; this, albeit it be not a good
lease, yet it is a good covenant. [Why is not this
a good lease, as an ulterior term in the lessee?
The only objection is, that the executors were to
take originally as lessees; but, on that point, see
Cranmer's case, Dyer, 309; and Spark v. Spark,
Cro. Eliz. 666; and Bac. Abr. Remainder, (A. 2.)
P. 733.]
If a man make a lease for years, and warrant it to the lessee, his heirs, and assigns, during the term; or he that hath right to the land confirm the estate of the lessee for years, with warranty; in these cases, howbeit this be not a warranty, nor in the nature of a warranty, yet it shall be construed a good covenant in law for the quiet enjoying of the thing. [Being annexed to a chattel interest, it is not a warranty; infra, p. 184.]
Bro. Covenant
38. Descent 50.
21 H. 7. 32.
If the lord grant to his tenant, that he will not Perk. Sect. 69. distrain him in such a part of his land for his rent; this shall be taken to be a good covenant, by this word grant (11). [This is not a release, since it
(11) See more fully by what words an express covenant may be created, Vin. Abr. Cove• nant (C.) Bac. Abr. Covenant (A.) Gilb. chap. 2.
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