Dyer, 198.

Co. super Lit.

292.

40 E. 3. 5.

43 E. 3. 17.

18 E. 4. 8. Kelw. 34. Trin. 36 El. B. R. Carrell v. Reade.

was fixed,] for otherwise the covenant will be
broken.

If a lessee covenant to do all the reparations of
a house demised, at his own costs and charges,
and he cut trees upon some of the ground demised
to amend the house; it seems this is a breach of
his covenant (36).

If one covenant to pay money at five several To pay money. days, and he fail of payment [on] the first [or on any other] day; by this [default] the covenant is broken (37).

&c.

If one take land sowed, or a stock of cattle, in To leave a stock, lease for years, and the lessee covenant to leave it in as good plight as he doth take it; in this case he must leave it sowed again, and if any of the cattle die, he must make up the number, otherwise he doth break his covenant.

If a corporation do covenant not to take toll, Not to take toll. and their common officer appointed for that purpose doth take it; this is a breach of the covenant.

If A. covenant with B. to build a house by a To build a day, and B. doth forbid him, and thereupon he house. doth forbear to do it, and doth it not; in this case the covenant is broken, for this [denial] will not excuse him, [though it may mitigate the damages.] But if he do by any actual impediment hinder him, or be the cause why the thing is not done, then the not doing of it is no breach of the covenant. And therefore if a lessee covenant to cleanse one of the To cleanse a ditches in the land demised, and the lessor enter upon the land itself and keep out the lessee, [from the land, as distinct from the ditch,] and he doth not cleanse the ditch by the time; by this [default] the covenant is broken: but if in this case the. lessor do by force keep the lessee out of the ditch or place itself, contra.

ditch.

(36) As to the extent and construction of covenants to repair, in addition to the references before in page 165, note 1, see Vin. Abr. Covenant (L. 5.)

(37) An action of covenant lies upon the first default, but an action of debt will not lie till the last. See 3 Co. 22 a. In Co. Lit. 292 b, a distinction is taken between a debt due by contract or bond, and a debt due by recognizance, for if a recognizance be to pay money atfive several days, after the first day of payment (and default), execution may be taken on the recognizance for the whole sum, it being in the nature of several judgments; but no action of debt will lie on the bond or contract, before the last day be past. See further as to covenants for payment of money, Stiles, 59. 172. A covenant to pay money, which is by deed, cannot be discharged without deed. See Rogers v. Payne, 1 Wils. pt. 2. p. 376. [But after a cause of action hath incurred, there may be an accord and satisfaction, and this will be a bar to the action; for it is a compensation of the damages. The accord is a plea to the damages, or gist of the action, and not to the covenant.]

To have liberty

of a shop.

If A. and B. be joint-tenants of a shop, and A. Hil. 16 Jac. B.R. to go in and out covenant with B. that he and his assigns shall Siliard v. Loe. have free ingress and egress in and out of the shop, and A. doth appoint C. his servant to enter as servant to him, and to occupy in common with A. and this servant doth expel the servant of B.; in this case this [expulsion] is a breach of the covenant.

To come into a house.

8. Who shall or may have advan

If A. covenant with B. that B. shall come four 3 H. 4. 8. times a year into the house of A. without being ousted by A., and A. when he doth see B. coming, doth shut the doors and windows, and doth not suffer B. to come in; by this [exclusion] the covenant is not broken.

If A. covenant with B. to marry the daughter of B., make a feoffment, or do any other act to C. (who is a stranger to the covenant,) and A. doth tender it and offer to do as much as doth lie * in his power, but the stranger doth refuse it, and thereby it is not done; yet this [refusal] doth not excuse it, but the covenant is broken. [But see C. T. Talb. 164.] But if the covenant be to do any such act to the covenantee himself, and the covenantor tender it and the covenantee refuse it; by this [refusal] the covenant is performed (38). [See 1 Mod. 300.]

33 H. 6. 16.

Bro.Covenant 3.

Fitz. Barre, 62.

See more in the last question; and in Obligation, Mich. 7 Jac. numb. 7, 8, 9; and in Condition, numb. 9, 10.

Any one that is party to the deed, to whom the tage of a covenant Covenant is made, may take advantage of the in deed or law, covenant, but not a stranger; for if A. covenant and bring a writ with B. to do an act to C. who is no party to the the breach of it; deed, and he [A.] doth it not, B. and not C. must sue him upon this breach.

of covenant upon

or not.

Co. B.

47 E. 3. 12.

If a lease be made of land to a husband and Co. 5. 17. wife for years, and the lessor doth enter upon the Dyer, 257. land and put them both out, or the one of them after the death of the other; in this case both of them, whilst they both live, and the survivor, after the death of one of them, may have this action of covenant upon the covenant in law. So if a wardship be granted to a woman by deed, and she take a husband and die; the husband shall have advantage of this covenant in law, made by the

(38) See more amply what shall be deemed a breach or performance of a covenant, Com. Dig. Covenant (E.) Vin. Abr. Covenant (L. 7.) Gilb. Covenants, 184. Bac. Abr. Covenant (H.) In what cases, and how, a court of equity will decree a performance of a covenant, see Com. Dig. Chancery (2 X.)

word "grant", if he be disturbed. So if one by the
words, "demise or grant', lease land to a woman
sole for years, who taketh a husband and dieth; in
this case if the husband be disturbed he shall take
advantage of this covenant in law. [So husband
alone, as assignee of his wife, may take advantage
of an express covenant with his wife, which runs
with the estate. Com. Dig. Covenant, (B. 3.) And
sometimes the heir shall have the benefit of a
covenant, 1 Mau. & Selw. 355, though broken
in the time of the ancestor.]

If a feoffment be made in fee, and the feoffor doth Heir.
covenant to warrant the land, or otherwise, to the
feoffee and his heirs; in this case the heir of the feoffee
shall take advantage of this [covenant] (39). As
if A. covenant with B. and his heirs, to enfeoff B.
and his heirs of land, and B. die before it be done;
in this case his heirs, [though not named,] shall
take advantage thereof. [2 Lev. 92.] And if A. B.
and C. have lands in coparcenery, and they pur-
chase other lands in fee, and they covenant, each to
[and with the] other, his heirs and assigns, to make
such conveyance to the heir of him that shall die
first, of a third part, as he shall devise; in this
case the heir, not the executor, shall take advantage
of the covenant. [2 Lev. 92.]

Executors and administrators shall take advan- Executors and tage of inherent covenants, [read, covenants con- administrators, cerning personalty,] albeit they be not named (40). And therefore if A. covenant to do a thing to B. and do not name his executors or administrators, and it be not done, it seems the executors or administrators of B. may have an action of covenant for the not doing of it. As if one covenant with I. S. to pay him money at Michaelmas, and do not say to his executors, &c. and he die before the time; in this case his executor or administrator shall take advantage of this covenant, and may recover the money; [or they may maintain the action, if broken in the lifetime of I. S. In short,

(39) And where the covenant relates to the inheritance, and is such as runs with the land, though the covenant be with the lessor, his executors and administrators, without naming the heir, yet the heir shall have an action of covenant for breach. 2 Lev. 92, Lougher v. Williams.

(40) Executor, although he is not named, yet shall have an action of covenant in all cases by the common law, because he is privy and quodammodo party, because he represents the person of the testator more than the heir. Co. Lit. 208, 209 a. See further in Gilb. Law of Covenants, 322.

Assignee or grantees.

*P. 176.

they represent the testator, and are entitled to all
damages which accrue to the testator in his life-
time; and to the benefit of all covenants and duties
belonging to the testator, except those duties which
concern acts to be done to the testator personally,
in respect of his person, and which become impos-
sible of performance by his death, or which are
to be done for creating a title, to be communicated
to the heir. Fitz. N. B. 145 c.]

Numb. 12.

only) for

Co. 5. 18.
9 Jac. B. R.
Betwich's case

Wilborne &

Grantees of reversions shall have the like See Condition, advantage against termors (by action any covenant or agreement contained in their lease, as the lessors, their heirs or successors might. And so also shall lessees against grantees accord. of reversions (recoveries in value excepted) by the statute of 32 H. 8, cap. 34. And herein (as in the case of a condition before) a difference is taken between covenants that are inherent, and covenants that are collateral. For the covenants, whereof grantees by this statute shall take advantage, are inherent covenants; i. e. such covenants, as do concern the thing granted, and tend to the supportation of it as where a lessee for life or years doth covenant with [the lessor and] his heirs to keep the houses demised in good reparations, or the like; [otherwise, if the covenants respect a house or lands not demised;] and after the lessor doth grant away the reversion of all, or part of the houses to I. S.; in this case I. S. shall take Mich. 8 Jac. advantage for any breach of the covenant in his Pime's case, time, but not for any breach before the time the reversion was granted. But if the lessee doth covenant with his lessor and his heirs to pay him a [Kingdon v. Nottle, 1 Mau. sum of money [in gross], or make him a feoffment & Selw. 355-] or the like, and then the lessor doth grant the reversion to I. S.; in this case I. S. shall not take advantage of this covenant; and yet the executors or administrators, [and in the second case, the heirs] of the lessor shall take advantage of this covenant (41).

Regularly every assignee of the land, or thing Co. 5. 17. demised, shall take advantage of inherent cove

nants as if a covenant be, to have estovers to

(41) The reader will find the operation of the statute of 32 H. 8, c. 34, (which forms a material part of the doctrine of covenants), and to what persons it extends, clearly explained, and well supported by authorities, in Bac. Abr. Covenant (E. 6.); and in Vin. Abr. Covenant (K. 3.) [Co. Lit. 215 a. Thomas's Co. Lit. 2 vol, p. 89. 440.]

Co. 4. 80.

Dyer, 257.

30.

burn in the house demised, or to have timber to
repair; or if the covenant be, that the lessor or
lessee shall repair, or the like. And therefore of
these assignees in deed, and in law; assignees of
assignees in infinitum shall take advantage; and
assignees of executors or administrators, tenants
by statute, or elegit; or after a sale upon a fieri
facias, a husband in the right of his wife; any one
of these, and any other that shall come lawfully to
a term unto which such a covenant is incident,
albeit he be not named, yet may he take advantage
of it (42).

If a lease for years be made to I. S. by the Fitz. Covenant, words, "demise or grant," and the lessee assign this over to I. D.; in this case I. D. may take advantage of the covenant in law, and bring an action against the lessor if he be disturbed.

Co. 3. 63.

F. N. B. 145.

Co. super Lit. 385.

Co. 5. 23. 18.

If a lease for years be made of land, and the lessor doth covenant with the lessee and his assigns to do, or not to do, something [which concerns the thing demised;] in this case an assignee by word, [at this day there cannot, by reason of the statute of Frauds and Penalties, 29 Car. 2, c. 3, be an assignment without writing,] or an assignee by deed, may take advantage of this covenant (43).

And, funder the rules of the common law, independently of the statute of H. 8, for the statute does not apply to these cases,] if two coparceners make partition of land, and the one of them doth covenant with the other to acquit her and her heirs of a suit that issued out of the land, and the covenantee doth alien her part to a stranger; in this case the alienee shall have the same advantage for acquittal of the land, as the covenantee had. So if A. be seised of the manor of B. whereof a chapel is parcel, and a prior, with the consent of his convent, had covenanted with A. and his heirs, * lords *P. 177. of the manor, to celebrate divine service in the chapel, and after A. had sold the manor; in this case the vendee or assignee of the manor, should have had the same advantage of the covenant [as] the vendor had. But if the lord had sold the chapel, the assignee of the chapel should not have taken

(42) See Moor, 242. Godb. 270. Prec. in Chan. 39.

(43) See further in what cases an assignee shall take advantage of a covenant, Cro. Eliz. 373. Cro. Car. 137. Br. Abr. Covenant, pl. 45. Com. Dig. Covenant (B. 3.) Vin. Abr. Covenant (K.) Bac. Abr. Covenant (E. 5.)