was objected, that the action ought to have been brought by the heir or affignee. But it was holden that the eviction being in the life-time of the teftator, he could not have an heir or affignee of this land, and fo the damages belong to the executor, though not named.

The affignee of a term is bound to perform all the covenants which are annexed to the eftate, fuch as to pay rent, repair houses, &c. but if the leffee covenant to build a wall' upon the premiffes, it fhall not bind the affignee unless he be exprefsly named in the covenant, and though he be named, yet if the covenant were broken before the affignment, he shall not be bound.

A. leafes to B. who covenants to repair, and affigns to J. .S. who dies inteftate, the leffor may bring covenant against the adminiftrator of 7. S. and declare against him as an affignee.

If the leffee covenant to repair or pay rent, and grant over his term, yet covenant will lie against him or his executors, though the leflor have accepted rent from the affignee.

So an aflignee who affigns over is liable to covenant for the rent incurred during his enjoyment, and if covenant be brought, he may plead that before any rent was due he granted and affigned all his term to 7. S. who by virtue thereof entered and was poffeffed; and this will be good discharge without alledging notice of the affignment, and the affignment will be good though made the day before the rent due to a prifoner in the Fieet, nor can the plaintiff take any advantage of it by replying per fraudem, unless he can prove a truft: It was the leffor's own fault and folly to take the first affignee for his tenant, nor is he without remedy, for he may bring covenant against the leffee, or diftrain upon the land.

As the affignee fhall be bound by a covenant, which runs along with the land, fo fhall he take advantage of it. If a man lease land to another by indenture, this covenant in law will go to the affignee of the term.

By 32 H. 8. c. 34. reciting, Whereas divers had lands, manors, &c. for life or years by writing, containing certain confiderations and agreements, as well on the part of the leffees and grantees, their executors and affigns, as on the part of the leflors and grantors, their heirs and fucceffors: And whereas by the common law no ftranger to any condition or covenant could

could take advantage thereof: It is enacted, that all perfons, their heirs, fucceffors and affigns, which have or fhall have any grant of the king of any lands, manors, &c. or any reverfion thereof, and alfo all other perfons being grantees or affignees to or by the king, or to or by any other perfon or perfons, and the heirs, executors, fucceflors and affigns of every of them, fhall and may have like advantage by entry for non-payment of rent, or for doing wafte or other forfeiture, and the fame remedy by action only for not performing other conditions, covenants and agreements contained in the faid leafes, against the leffee and grantee, their executors, administrators and affigns, as the leffors and grantors, their heirs or fucceffors ought, fhould, or might have had at any time or times; and by the fame act all farmers, leffees and grantees for years, life or lives, their executors, adminiftrators and affigns, fhall and may have like action and remedy against all perfons, their heirs, fucceffors and affigns, which, by the grant of the king or other perfons, fhall have the reverfion or any part thereof, for any condition, covenant or agreement contained in their leafes, as the leflecs or any of them might or fhould have had against the leffors and grantors, their heirs and fucceffors; recovery in value by reafon of any warranty in deed or in law only excepted.

It is plain, this act does not extend to gifts in tail, nor to a Co. L. 215. grantee by fine till attornment, for it must be intended of fuch

affignees only, as have had all ceremonies by law requifite.

The first claufe extends to grantees of part of the estate of Ibid. the reverfion, but not to grantees of the reverfion in part of the land.

Whoever comes in by the act and limitation of the party, Ibid. though in the post, is a fufficient grantee within this statute, but it does not extend to fuch as come in merely by act of law, nor to him who is in of another estate.

Moor 876.

Co. L. 215.

Cr. J. 476.
Co. L. 215. b.

The grantee shall not take advantage of a condition before he has given notice to the leffee, though he may of a covenant. The words "other forfeiture," fhall be taken for other for feitures like to the examples there put, viz. payment of rent, or doing waste, which are for the benefit of the reversion, and therefore conditions for payment of any fum in grofs, delivery of corn, &c. are not within the meaning of this act. The 1 Saund. 237. privity of action is transferred, and it may be brought in the

country where the covenant was made, as well as where the land lies.

Covenant by the affignee of the leffor against the lefsee after his affignment, and after acceptance of rent from the af fignee, it is good within the ftatute.

It was formerly holden, that the furrenderee of a copyhold was not an affignee within this act; but the latter cafes have holden otherwife.

4 Mod. 8o. Skin. 296. 305.

All covenants are to be taken according to the intent of the parties; as where the condition of a bond was to deliver to the plaintiff an obligation (in which he was bound to the defendant) before fuch a day; if the defendant fue the plaintiff on the obligation and recover, and afterward before the day deliver the obligation, it will not be a performance. But if A be bound to B. that his fon (then being infra annos nubiles) should before fuch a day marry B.'s daughter, and he does marry her accordingly, and after at the age of confent difagrees to the marriage, yet the covenant is performed. But if there be any doubt on the sense of the words, such con, fruction, fhall be made as is moft ftrong against the covenantor. Therefore if. A. covenant with B. that if B. marry his daughter, he will pay him 20l. per annum without saying for how long, yet it fhall be for the life of B. and not for one year only.

A covenant for quiet enjoyment fhall not be conftrued to extend to a wrongful ejectment by a stranger, unless so expressed.

If A. grant a rent charge to B. for the use of 7. S. habendum to B. his heirs and aligns to the use of 7. S. and covenant with B. to pay to the ufe of 7. S. if the rent be behind, B. may have covenant.

Where a man covenants not to do an act or thing which was lawful to do, and an act of parliament comes after and compels him to do it, the ftatute repeals the covenant.

So if a man covenant to do a thing which is lawful, and an act comes to hinder him from doing it, the covenant is repealed. But if a man covenant not to do a thing which was then unlawful, and an act come and make it lawful, fuch ac does not repeal the covenant,

If the principal thing to be performed as the conveyancing Salk. 309. an eftate, &c. be void, further covenants which are relative and dependant thereon, are so likewife; but where the cove- Salk. 199. nants are diftinct and separate, it is not material whether an eftate paffed or not; as a covenant for the payment of a fum

of money.

Tryon and Carter, Tr. 1734. 2 Str. 994. S. C. Poft. 161.

Burr. 944

For the better understanding what fhall be faid to be a breach of covenant, and how far it is neceffary to fet it forth in an action of covenant, it will be proper likewife to take notice what would be a breach of a promife or condition, and how far it is neceffary to fet it forth in an action of debt or upon the cafe. Debt upon bond conditioned to pay on or before the 5th of September, the defendant pleaded payment on the 5th; the plaintiff replied that he did not, and thereupon iffue joined: After verdict for the plaintiff, judgment arrested because the replication should have been, that he did not pay at the day, nor at any time before; for otherwife he does not fhew a breach to intitle himself to his action, which is neceffary in all cafes where the plea is founded upon fomething within the condition. But it is otherwife where the plea is of a collateral matter, (as a release, &c.) for fuch plea admits a breach, and this rule holds in all cafes, except in bonds for the performance of an award; for Salk 138. S. P. there, though a collateral matter be pleaded (fuch as nul agard fait,) yet the replication must fhew a breach, that it may appear to the court to be in fuch part of the award as is good'; for an award may be good in part and bad in part.

In cafe for that the defendant promifed to deliver, on or be- Salk. 140.fore the 5th January, 20 quarters of corn out of a fhip into a barge, to be brought by the plaintiff, and breach affigned that the defendant did not deliver on the 5th; on non affumpfit verdict for the plaintiff, and on motion in arreft of judgment it was holden by Helt Ch. Juft. that as the defendant could not make a tender before the laft day, it fhall not be prefumed that the plaintiff was there to receive it fooner, therefore the declaration would have been good on demurrer, but clearly fo after verdict, because an actual delivery at any time might have been given in evidence on the non affumpfit.

In debt upon bond the defendant prayed oyer of the condi- 1 Saund. 316. tion, which was to perform covenants in an indenture, and thereupon he brought the indenture into court, and pleaded that there were no covenants on his part to be performed. The plaintiff

M 4

Bufher and
Philips, H. 8
G. 2.

Rodham v.
Strother, M.

plaintiff prayed øyer, and in fact there being feveral covenants on the defendant's part to be performed, he demurred. Saunders for the defendant objected, that the plaintiff had demurred trop haflivement, for that he ought to have fhewed a breach to maintain his action; but the plaintiff had judgment, for it appeared judicially to the court, of the defendant's own fhewing, that he had pleaded a falfe plea, and therefore there was no occafion for the plaintiff to fhew any matter of fact to maintain his action.

In debt upon a bail bond, the declaration fet forth that A. and B. and the defendant became bound jointly and severally for the appearance of A. that A. did not appear, and that the defendant had not paid; fpecial demurrer, becaufe not averred that the money was not paid by either of the other two, and compared to a covenant by three. However, upon search of precedents, the plaintiff had judgment.

Debt on bond conditioned to perform an award, the defend29 Car.2. K. E. ant pleads nul agard. The plaintiff replies, and fhews an award to pay a fum of money, but no time expreffed when, and affigned a breach in non-payment licet fæpius requifitus. On demurrer the court held it not neceffary to alledge a fpecial requeft but where the other party may traverse it, which he could not do here without a departure.

1 Raym. 107.

There is a great difference between affigning a breach in an action of covenant, and in debt upon bond conditioned for the performance of covenants, because in covenant all is recoverable in damages, and those will be what the party can prove he has actually fuftained, but in the other cafe a breach. is a forfeiture of the whole bond; therefore in covenant it is fufficient to affign the breach in the words of the covenant, but that would not do in debt upon bond for the performance of covenants.

And this leads me to take notice of another difference between covenant and debt, viz. That at common law in debt upon bond, with condition to perform covenants, the plaintiff could affign only a fingle breach, but in covenant he might affign as many breaches as he pleased; but now by the 8 & 9 W. 3. c. 11. the plaintiff may in debt on bond, or on a penal fum for performance of covenants, affign as many breaches as he shall think fit, and the jury shall affefs not only such damages and cofts as have been heretofore ufually done in fuch

cafes,