by fine sur concessit granted certain lands to plaintiff for years, and warranted the same against all men during the term; in an action of covenant on this warranty, the breach assigned was, that one S., after the commencement of the term, and during the term, having lawful right and title to the premises, entered and ejected plaintiff; defendant tendered issue on the ejectment: after verdict for plaintiff, it was moved in arrest of judgment, that the breach was not well assigned; because S. might have had, at the time of his entry, a lawful right and title to the premises under the plaintiff himself; and as it was not stated in the declaration, that S. had title to the premises before the fine was levied, it should be intended, that he had a right to the premises, at the time of his entry, by a puisne title, to which the covenant of defendant did not extend. The court (absente Kelynge C. J.) held that the breach was not well assigned.

So in an action against executors (in their own right) who had assigned a lease belonging to their testator by way of mortgage, and had covenanted for good title and quiet enjoyment of the plaintiff, without disturbance from them or any other person; the breach assigned was, that the plaintiff was evicted in consequence of a judgment in ejectment, by one Yates, having lawful title to the premises. On special demurrer it was objected, that it did not appear that Yates's title commenced by any act of the defendants, or prior to the assignment made by them to the plaintiff, who might therefore have been evicted by means of some act done by himself since the assignment. Judgment for the defendants.

This intendment, viz. that the title of the party evicting was derived from plaintiff, may be precluded by averring, (if the facts of the case warrant such an averment) that the person evicting entered by lawful title, which accrued to him before the date of the conveyance to the plaintiff (28), as in Buckly v. Williams, 3 Lev. 325. Covenant upon ar

i Noble v. King and Smith, 1 H. Bl. 34.

(28) Or by averring that at the time of the demise to the plain tiff, the party evicting had lawful title; as was done in Foster v. Pierson, 4 T. R. 617. and ante p. 432, or that the party evicting entered by virtue of a title theretofore made, by, from, and under the defendant, as was done in Hodgson v. India Company, 8 T. R. 278. But merely averring that J. S. entered claiming title from the defendant, is not sufficient, Aleyn, 38. Eeles v. Lambert.

ticles, whereby defendant covenanted that plaintiff should. quietly enjoy a close, and that one Knolls (who had a title to the premises by virtue of a certain lease to him thereof, made before the making of the articles aforesaid,) entered upon the plaintiff and expelled him. After verdict for plaintiff, it was moved, in arrest of judgment, that the breach was not well assigned; because plaintiff did not shew what title Knolls had; and, perhaps, the title which he had was under the plaintiff; but the objection was overruled; for the title of Knolls could not be supposed to be under the plaintiff; for the declaration states, that Knolls had a title by virtue of a demise made to him before the making of the articles to the plaintiff, and let the title be derived from whom it will, yet being before the articles made with the plaintiff, the covenant is broken.

The preceding remarks have been confined to the cases of general covenants and evictions by strangers; but in cases where the covenant is particular, as against interruption by the grantor or lessor, or by any person expressly named; upon the eviction of the covenantee by the grantor or lessor, or by the person expressly named, it is not necessary for the plaintiff to aver title in the party evicting.

In covenant, the declaration stated that the defendant granted a messuage, with the appurtenances, to plaintiff in fee, and covenanted for plaintiff's quiet enjoyment thereof, without the lawful let, entry, eviction, or interruption of the defendant; and assigned for breach, that defendant hindered plaintiff in the enjoyment of à pew appurtenant to the messuage; on general demurrer it was objected, that the injury complained of ought to be the subject of an action of trespass, but could not be the foundation of this action, the covenant being against all lawful disturbance: to this it was answered, that, where the breach complained of was the act of the covenantor, any interruption was sufficient to support this action against him. Judgment for the plaintiff; Ashhurst J. observing, that it was not necessary that the party against whom the action was brought should have a title; it was sufficient if he did the act under a claim of title; that in this case the act itself asserted a title; for the defendant locked up the pew, which was as strong an assertion of right as could well be imagined.

So where, in covenant', the plaintiff set forth a covenant which recited that defendant had sold, to the plaintiff's testator, goods which had been arrested by one Bell, and 1 Perry v. Edwards, 1 Str. 400.

k Lloyd v. Tomkies, 1 T. R. 671.

therefore defendant covenanted to plaintiff's testator, to save him harmless from any costs or damages relating to such seizure, and then assigned for breach, that the said Bell, having arrested the goods under pretence of a debt due from defendant to him, touching which arrest testator was put to great expense, which defendant neglected to pay. It was objected, that the covenant did not extend to tortious acts, for which the plaintiff had a remedy, and therefore the title of Edward Bell ought to have been set forth; that "having lawful title" was not sufficient; that here it was only said "under pretence," which was not so strong. The counsel for the plaintiff admitted it to be a general rule, that the plaintiff must shew a title in the disturber; but insisted that that rule extended only to the case of a general covenant, and not where it was particular against the acts of particular persons; for in that case it comprehended even tortious acts. And by the court: This pretence of Bell's being recited in the covenant, shews it was meant as a security against it in all events; and though it should be tortious, yet being particular, it falls within the distinction that has been well taken. Adjourned, and Hil. T. following, judgment for plaintiff, defendant's counsel declining to argue it.

IV. By whom the Action of Covenant may be main

tained,

1. Heir.

2. Executor.

3. Assignee.

1. By Heir.-COVENANTS which run with the land will descend to the heir of the covenantee; and he may sue for a breach thereof; as where the lessee covenanted with the lessor, his executors, and administrators, to repair; it was holden, that the heir of the lessor, though not named, might have covenant against lessee for not repairing.

Plaintiff declared as heir on a covenant by lessee for years to repair", and assigned for breach, that the premises were out of repair for a period of time which included a portion

m Lougher v. Williams, 2 Lev. 92. Skin. 305.

n Vivian v. Champion, Salk. 141.

of his ancestor's life; and on this ground an exception was taken in arrest of judgment, after verdict for the plaintiff; but it was overruled, Holt C. J. observing, that if the premises were out of repair in the time of the ancestor, and continued so in the time of the heir, it was a damage to the heir; and the jury gave as much in damages as would put the premises in repair, respect being had, not to the length of time they had continued in decay, but to what it would have cost, at the time of action brought, to put the premises in repair.

2. By Executor.-A. and B. his wife, by indenture, demised lands to C. for 21 years, and thereby covenanted, that they (viz.) A. and B. would at the end of the 21 years make a good lease to C. and his assigns for 21 years, commencing at the expiration of the first term. During the first term the lessee died, having made his will, and appointed D. his executrix, who entered, &c. and died, having made her will and appointed the plaintiff her executor, who entered, &c. At the expiration of the first term, A. and B. having refused to grant the further lease, an action was brought by the plaintiff (as executor of D. executrix of C. the lessee) on this covenant against A. the husband; and it was adjudged, that the action would well lie (29).

Covenant by the plaintiff as executor of J. S.P The defendant sold lands to J. S. and covenanted with him, his heirs, and assigns, that he should enjoy the lands against all persons claiming under one A.; and the breach assigned was, that B. and C., in the life-time of the testator, entered claiming under A. On demurrer to defendant's plea, it was contended, for the defendant, that the covenant was with J. S., his heirs, and assigns, touching an estate of inheritance; and, therefore, that the action ought to have been brought by the heir or assignee, and not by the executor: but it was resolved by the court, that the eviction being to the testator in his life-time, he could not then have an heir or assignee of this land, and therefore the damages belonged to the executor, though not named in the covenant; for he represented the person of the testator.

• Chapman v. Dalton, Plowd. 284. a. p Lucy v. Levington, 9 Lev. 26. 1 Vent. 175. S. C.

(29) The reasons of the judgment are not mentioned in the report; but it appears to have been decided on the ground that the plaintiff, being executor of D. who was executrix of C. the lessee, was as such entitled to the benefit of his covenant.

3. By Assignee.Assignee of part of the reversion of all the land demised, may take advantage of the covenants contained in an indenture of demise; for he is an assignee within the stat. 32 H. 8. c. 34.

As the assignee of a term is bound by covenants which run with the land, so may he take advantage of them'.

If a man demise or grant land to a woman for years, and the lessor covenant with the lessee to repair the houses during the term, the woman takes husband, and dies, the husband shall have an action of covenant as well on the covenant in law upon the words " demise or grant," as upon the express covenant. The law is the same with respect to tenant by statute merchant, or statute staple or elegit, of a term, and with respect to him to whom a lease for years is sold by force of any execution, who shall have an action of covenant in the like case as a thing annexed to the land, although they come to the term by act of law.

So the executor of B. the executor of A. is entitled to the benefit of a covenant made with A. and his assigns, for he is the assignee in law of A. N. The word assignee comprehends the assignee of the assignee, the executors of the assignee of the assignee", and the assignee of the executor or administrator of the assignee.

Stat. 32 H. 8. c. 34.-The stat. 32 H. 8. c. 34. after reciting, that many temporal and religious persons had made leases and grants of land for life or lives, or for term of years, by writing under seal, containing conditions and covenants to be performed as well on the part of the lessees and grantees, their executors and assigns, as on the part of the lessors and grantors, their heirs and successors; and that by the common law no stranger to any covenant could take advantage thereof, but only such persons as were parties or privies thereunto; by reason whereof grantees of reversions, and grantees and patentees of lands lately belonging to religious houses, were excluded from any entry or action against the lessees and grantees, their executors and assigns, for breach of any condition or covenant, enacts, "that all persons and bodies

politic, their heirs, successors, and assigns, having any "gift or grant of the king, of any lands or other heredita"ments, or of any reversion of the same, which belonged to " any of the monasteries, &c. dissolved, or by any other means come to the king's hands, since the 4th day of

q 1 Inst. 215. a.

Cro. Eliz. 553.

■ Spencer's case, 5 Rep. 17. a. 5th Resolution.

t Chapman v. Dalton, Plowd. 284. a.

ante, p. 437.

u Spencer's case, 5 Rep. 17. b.