versioner."

On the expiration of the lives, the reversioner brought covenant against the executors of A., for not yielding up the messuage in repair. It was alleged in the declaration that all the estate and interest of the lessee for life vested in A. by assignment. This was denied by defendants' plea. A case having been reserved and argued, the court directed the postea to be delivered to the defendants Lord Kenyon C. J. observing, that there were not any words in the indenture, by which the freehold, of which the original lessee was seised, was conveyed to the testator of the defendants; that the conveyance of all the grantor's estate, and interest to a man and his executors, for years, could not convey a freehold; that such words meant only their interest, &c. in the legal estate thereby granted; and that the court could not give those words a larger operation than the parties themselves had declared they should have.

The devisee of an equitable estate is not liable as assignee : In covenant against the defendants, " as assignees of all the estate and interest of one George Denton, in certain grounds called Dentonholme," which G. Denton, thereto fore, by an indenture, dated in the year 1654, had granted to the mayor, &c. of Carlisle, so much of the river or water of Caldew, running along his said grounds, as should be sufficient for the grinding of corn and grain at all times at their mills, with certain other liberties and powers for the use and advantage of those mills; and had covenanted, that he, his heirs, and assigns, &c. should not at any time thereafter divert or obstruct any part of the water granted. The breach assigned was, that the defendants had, after these grounds had vested in them by assignment, wrongfully continued a weir or dam, before then wrongfully erected, in and across the river Caldew, which diverted the water to the prejudice of the plaintiffs' mills. Plea: That "all the estate and interest of G. Denton, in the said grounds, called, &c. did not come to and vest in the defendants by assignment thereof;" upon which issue was joined. It appeared that one Jonathan Wilson was, at and long before the time of the breach of covenant complained of, mortgagee in fee of the lands called Dentonholme, the defendants being only seised of the equity of redemption thereof, as devisees of one Lucy Dixon, the heir of G. Denton. Rent also appeared to have been paid to Lucy Dixon, the owner of the equity of redemption, in her life-time, and to the defendant, Tyson, as her devisee after her decease. The court were of opinion, that, con

g The Mayor, &c. of Carlisle v. Blamire and Tyson, 8 East, 497.

G G

sidering that the whole legal estate in the premises was before, and at the time of the breach of covenant in question, vested in J. Wilson, the mortgagee, and that the defendants, the devisees, were not assignees of any part of that legal estate therein, which formerly belonged to G. Denton, the covenantor, but entitled to the mere equity of redemption thereof, it was impossible to say that the defendants were assignees of the estate of G. Denton, within the sense and meaning of the terms in which the issue was framed; and which terms respected that description and quality of estate alone, namely, legal estate, in virtue whereof parties are at all liable to actions of covenant, as assignees.

So where in covenant for rent arrear", brought against the defendant as assignee of J. S., it appeared in evidence, that by the deed, under which the defendant held, the premises were conveyed to him by J. S. for a day or some days less than the original term; the court were of opinion, that the action could not be maintained, the defendant being an under-lessee, and not an assignee of the whole term.

But where a lessee for years granted the whole of the term to J. S., it was holden, that J. S. might maintain an action as assignee of the term against the lessor for a breach of covenant; although in the deed of assignment, the rent was reserved to the lessee, with a power of re-entry in case of non-payment, and although new covenants were introduced into that deed.

With respect to declaring against an assignee, it is to be observed, that it is not incumbent on the lessor to set forth mesne assignments. It is sufficient to state, generally, that all the estate, &c.* of the lessee vested in the defendant by assignment; for it cannot be presumed, that the lessor is acquainted with the particulars of the assignee's title,

VI. Of the Declaration, and herein of dependent Covenants, Conditions precedent, and independent Covenants.

Venue. As this action is more frequently brought for breaches of covenants contained in leases, than on any other kind of covenants, the following table may be useful, in

Holford v. Hatch, Doug. 182. i Palmer v. Edwards, Doug. 187.m.

k Pitty Russell, a Lev. 19.

which the reader will see, at one view, in what cases such action is transitory, and in what local. The principle

on which the table is framed is this: where the action is founded on privity of contract, it is transitory, and the venue may be laid in any county (45); but where the action. is founded upon privity of estate only, it is local, and the venue must be laid in the county where the estate lies. In the 3d and 4th cases in the table, the privity of contract is transferred by the operation of the stat. 32 H. 8. c. 34.

3. Assignee of Reversion v. Lessee, stat. 32 H. 8. c. 34. Thursby v. Plant, 1 Saund. 237.

4. Lessee v. Assignee of Reversion, stat. 32 H. 8. c. 34.

LOCAL.

5. Lessor v. Assignee of Lessee, Stevenson v. Lambard, 2 East, 575.

6. Assignee of Lessee v. Lessor.

7. Assignee of Reversion v. Assignee of Lessee; Barker v. Damer, Carth. 182. Salk. 80.

8. Assignee of Lessee v. Assignee of Reversion.

The circumstance of rent being made payable in a different county from that in which the lands lie, will not affect the locality of an action of covenant for non-payment of such rent'.

It is to be observed, however, that where the action is local, although it be brought and tried in a wrong county, yet the defect will be aided after verdict, by stat. 16 & 17 Car. 2. c. 8.

It must appear on the face of the declaration", that defendant covenanted by deed; for where plaintiff declared, that defendant per quoddam scriptum suum factum apud Westminster concessit, &c. it was holden bad; because scrip

1 Barker v. Damer, Salk. 80.

m Mayor of Londou v. Cole, 7 T. R.

583.

n Moore v. Jones, Str. 814. See also Southwell v. Brown, Cro. Eliz. 571.

(45) If the deed bears date in a foreign country, it must be so stated in the declaration, and the venue must be added under a scilicet, for a place of trial.

tum did not import a deed, and factum being joined to apud Westminster, rendered it impossible to be taken as a substantive (46).

As this action is brought on a deed, with the execution of which defendant is charged, plaintiff must make a profert of the deed in the declaration, and bring the deed into court, in order that the court may see whether it be executed according to law. Profert being made, defendant is entitled to crave oyer, and the court cannot then dispense with oyer, although plaintiff make an affidavit, that he has searched for the deed, and cannot find it any where (47).

Every deed is supposed to be executed the same day that it bears date. But though the deed appear on the face of it to have been made, that is, written on one day, yet if in truth it were delivered on a subsequent day, that may be shewn by averment.

A declaration in covenant stated that the deed was indented, made, and concluded, on a day subsequent to the day on which the deed itself was stated on the face of it to have been indented, made, and concluded; it was holden, that such allegation was no more inconsistent with the deed, than if it had been alleged that it was sealed and delivered

o Thoresby v. Sparrow, B. R. E. 16 Geo. 2. 1 Wils. 16. 2 Str. 1186. S. C.

p Stone v. Bale, 3 Lev. 348. See also Goddard's case, 2 Rep. 4. b.

q Hali v. Cazenove, 4 East's R. 477

(46) Reynolds J. said, that it had been holden well enough to call it factum, indentura, scriptum indentatum, because they implied the circumstances of sealing and delivering.

(47) In Read v. Brookman, 3 T. R. 151. in a plea in bar to an avowry, plaintiff, instead of making a profert, pleaded that the deed was lost by time and accident. On special demurrer this averment was holden good, per Kenyon C. J., Ashhurst J., and Buller J.-Grose J. dissentiente; but, in pleading a lost deed, it is necessary to set forth the supposed names of the parties to the deed and the date. Hendy v. Stephenson, 10 East, 55. If the deed has been destroyed by fire, it may be so alleged as an excuse for the non-production of it, as in Routledge v. Burrel, 1 H. Bl. 254. where the plaintiff declared that by a certain deed poll inade, &c. (which said deed poll was casually burnt and destroyed by the fire therein after mentioned). But if profert be made in the declara tion, the deed must be produced; for the plaintiff, so declaring, will not be permitted to give evidence of the destruction of the deed, or of its being in the hands of the defendant. Smith v. Woodward, 4 East's R. 585.

on a day subsequent; that it was quite immaterial when it was indented and equally so when it was made, by which might be understood when it was written; the only material word was concluded, and a deed could only be said to be concluded when it was delivered. The time of delivering was the important time when it took effect as a deed; and from the preceding case of Stone v. Bale, it appeared that the delivery might be after the date.

In framing the declaration, it is not necessary to set forth the provisions of the deed in letters and words. It will be sufficient to state the substance and legal effect. Neither is it necessary to set forth all the provisions of the deed; stating such parts as are necessary to entitle the plaintiff to recover will be sufficient (48).

Hence in covenant on a mortgage deed', the court were of opinion, that it was sufficient for the plaintiff to set forth in his declaration, that defendant, by a certain indenture, had demised certain premises therein mentioned (not specifying the premises) subject, among other things, to such a proviso; then setting out the substance of the covenant⚫ for the payment of the money, and breach for the non-pay

ment.

If the deed on which plaintiff declares contain a proviso, operating by way of defeasance of the covenants, the plaintiff is not obliged to state such proviso in his declaration; if the defendant means to rely on it, it is incumbent on him to shew it.

It is sufficient to say," whereas by a certain indenture,

r Duudas v. Lord Weymouth, Cowp. s Elliott v. Blake, 1 Lev. 88. T. Raym. 665. 65. S. C.

(48) This rule ought to be strictly adhered to, as well to prevent the extension of the record to an unreasonable length, as to avoid the danger resulting to the party setting forth the deed, from vari ances and formal objections. In Dundas v. Lord Weymouth, Cowp. 665. the court said, they would animadvert upon any future instance of putting parties to the enormous expense of setting out deeds at length, or superfluous parts of them. And in Price v. Fletcher, Cowp. 727, where the plaintiff in an action for breach of covenant for quiet enjoyment under a lease, had set out the whole lease verbatim, it was referred to the master to strike out the surperfluous matter in the declaration, with costs. See I Willms's. Saunders, 233. n. (2). where the learned serjeant has given a concise form of declaration in covenant for non-payment of rent,