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and to leave the premises in repair at the end of the term, are distinct clauses : therefore notice is not necessary to sustain an action for nonrepair at the end of the term; for the notice refers only to reparations within term, to which the lessee is not tied without notice three months before (a).

But a covenant to keep a house in repair from and after the lessor hath repaired it, is conditional, and it cannot be assigned as a breach that it was in good repair at the time of the demise, and that the lessee suffered it to decay; for the lessor must repair before the lessee is liable (b).

A covenant to repair at all times, when, where, and as often as occasion should require during the term, and at farthest within three months after notice of want of reparation, is one covenant} and it cannot be stated as an absolute covenant to repair at all times when, where, and as often as occasion should require during the term (c).

A lessee covenanted, within the two first years of the term to put the premises in good and sufficient repair, and at all times during the term to repair, pave, scour, cleanse, empty and keep the messuages, ground, and other the premises when, where, and as often as need should require, and within the first fifty years of the term to take down the four demised messuages, as occasion might require, and in the place thereof, erect upon the demised premises four other good and substantial brick messuages. Breach, that although fifty years of the term had expired the lessee did not, within the fifty years, take down the four messuages, and in the place thereof, erect four other good substantial brick messuages. Plea, that occasion did not require within the fifty years, that the four messuages should be taken down. Upon demurrer, the Court intimated an opinion, that if within the fifty years the houses should be so repaired a'} to make them completely and substantially as good as new houses, the covenant would be satisfied without taking down the old house; (d).

If a plaintiff declare on a general covenant to repair a messuage, and assign a breach, per quod he was put to expense, it is sufficient for the tenant to plead performance as to all except as to the repairs of a party-wall, and that those repairs were rendered necessary and done under the stat. 14 G. 3. c. 78. and did not become necessary by the defendant's default, and that the defendant was not the owner of the improved rent (e).

Upon a covenant that " the lessee should an d would well and sufficiently repair and keep in proper repair, all and singular the buildings, &c. during the continuance of the term" an action for breaches may be maintained during the continuance of the term (/).

(a)X Saund. 664.

<4) Ibid. 645.

CO Horscfall v. Tertar.

7 Taunt. 385.

(J) Evelyn v. Raddish. 7 Taunt. 411.

(*) Moore v. Clark. J Taunt. 9a

(f) Luxmore v. Robson. 1 B. & A. 584.

If a lessor covenant to let certain lands except such a close, a tor. tious entry by the lessee into the excepted close is said not to be a breach of a condition to perform all covenants contained in the lease (a).

Therefore if H. let a house, excepting two rooms, and be disturbed therein, covenant lies not: but if he had excepted a passage thereto, and had been disturbed in that, it would have lain; for it well lies for a thing which t he lessee agrees to let the lessor have oat of the demised premises (b).

If a copyholder in fee make a lease for years warranted by the custom, in which the lessee covenants to repair during the term, > surrenderee of the assignee of the reversion may maintain covenant for non-repair aga:mst the original lessee, although he had assigned the term before the reversion was surrendered to the plaintiff: for a copyholder is within the stat. 32 H. 8. c. 34 (c).—The doubt in this case arose upon tl te tenure of the messuage; for if it had been freehold, it was agree d, the action might well have been brought by the assignee of a revet sion against a lessee for years after he had assigned his term, notwith standing the lessor or his assigns had accepted the rent from the assignee of the lessee; and this upon the general words of the statute whi ch gives " the grantees and assignees of reversions of lands, tenements, and other hereditaments, the like advantage against lessees by entry for non-payment of rent as the lessors or grantors thcmselve s might have." This clause, therefore, is not confined to a covenant: for payment of rent (d).

If a farm be out of repair in the life of the ancestor and afterwards the heir bring an action, he shall recover damages for the whole time; but he ought: not to allege a breach in the ancestor's lifetime, because that belongs to the executor (e).

A recital of an agreement in the beginning of a deed will create a covenant, upon whic h this action will lie.

As, where on the demise of a coal mine, it was recited " that bebefore the sealing of the indenture it had been agreed that the plaintiff should have the third part dug," &c. on an action of covenant being brought on this, it was objected, that there was no covenant that the plaintiff was to ha ve the third part: but per Hale.—Were it butI recital that before the indenture they were agreed, it is a covenant; so, to say " whereas it: was agreed to pay be fore now the indenture confirms the former a greement by such declaration, and makes «ti covenant (f).

This action lies by 1 he lessor against the assignee of the lessee's assignee for a breach of covenant that runs with the land, though he be

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assignee of part only of the premises demised; for he is liable while he enjoys (u).

A reversioner in fee of a house by one deed, and of a lease for years of land by another deed, may bring covenant on a lease against the person to whom both the house and land have been demised by the grantor of the reversions, although he derive his right from different titles (3).

Where this action was brought on a covenant "to permit the plaintiff, in the last year of the term, to sow clover among the defendant's barley" and the breach assigned was, that the defendant sowed so many acres with barley and so many with oats, without giving "notice" to the plaintiff, by which he was prevented from sowing the clover and grass seeds.—Plea, that the defendant did « not prevent," was upon demurrer holden good: for the covenant made no mention at all about any notice to be given: and the breach assigned, being the not permitting the plaintiff to sow grass seed, the single question was, whether the defendant did or did not prevent him? If, indeed, he had refused to give notice, or had given a wrong notice, it might have been a breach: besides, the plaintiff was the party for whose benefit the covenant was intended; therefore he ought to have used due diligence (e).

In covenant by an executor against a lessee, the declaration stated that one seised in fee by will devised to W. March for life, remainder in tail to the said W. M. with power to grant leases for life reserving the best rent; that W. M. on June 9, 1778, granted to the defendant a lease for twenty years and a quarter; W. M. died and the premises descended to his son, who suffered a recovery, and conveyed them to the plaintiff's testator. The breaches were for non-payment of rent, for not repairing, and for not putting dung upon the premises. The rent, by the reddendum of the lease, was 60/. per ann. but there was a covenant to render 64/. Laives, of counsel for the plaintiff in error, observed, that the breach assigned was non-payment of 161. as a quarter's rent, which was more than the proportion of 60/. per ami. according to the reddendum. The last breach was for not laying dung upon the premises. The covenant was, that the dung should be laid each and every year during the continuance of the term. The fact was, that the plaintiff's testator purchased the estate only eight days previous to the expiration of the lease. Did his Lordship therefore think that he was entitled to the benefit of this covenant and could assign a breach for the non-expenditure of the dung which was to be laid every year upon the premises ?—L. Kenyon, « Yes, beyond all doubt; if the testator were seised of the reversion during the con

Bu Congham v. King. Cro. Car. Mi. I (s) Hughes v. Richman. Cowp. I»S(f) Pyot v. Lady St.John. Cro.Jac. 3*9. I

tinuancc of the term." Judgment affirmed. The first objection as to the breach for non-payment of rent was abandoned, it appearing that in the Judges' copies of the paper-book, the rent reserved was for 64/, The damages were assessed severally on each breach, which (the counsel observed) afforded a presumption that the defendant in error thought some of them not supportable (a).

The tenant is not estopped by the description of the lands in the lease.

Thus in covenant the plaintiff declared, that whereas he had demised to the defendant a house and several parcels of land, which were particularly described, some to be arable, some meadow, and some pasture, and especially two meadows, called Laint's meadows, the defendant covenanted to pay 5/. per acre for every acre of meadow, which he should plough up during the lease; and breach assigned in ploughing up Lame's meadow, &c. Plea; that for sixty years past, Lame's meadow has been arable land, and by times ploughed up and sowed, as the tenants thereof thought proper, and traverse, that at the time of making the lease it was meadow ground, as is supposed in the declaration. To this the plaintiff demurred, on the ground that the defendant was estopped to say that what is in the lease called meadow, is of any other nature. Sed per Curiam 1 The indenture is to be construed according to the intent of the parties, and here the intention was only to covenant against the ploughing up real meadow. Every body knows that in deeds of this nature the parcels are very often taken from former deeds, without regard to every alteration of the nature of the land: and it would be the hardest case in the world, that if this land had been arable at one time and laid down at another, the tenant should be concluded by calling it by either of those descriptions. This is not the essence of a deed, as what is struck at by nil habuit in tenementis. It would be carrying estoppels too »' should we extend them to this case * therefore we are all of opinion) that the defendant had a right to try the fact, whether it was ancient meadow or not (i).

To breach of covenant for not repairing, &c. the lessee cannot plead in bar that the lessor had only an equitable estate in the premises, for that is tantamount to nil habuit, EsV. But semb. he is not estopp from shewing that the lessor was only seised in right of his w>fe 'or her life, and that she died before the covenant broken; because an interest passed by the lease (c).

An assignee in covenant need not name himself assignee where he shews a legal assignment (d).

Though a covenant be joint and several in the terms of it, Jet"

(a) v.Davis,M.T.4*G.3.T.,sMSS. I (0 Blake v. Foster. gT.R.^7

(*) Skipwith v. Green. I Stra. 610. I (J) LordEwre v. Strickland. CroJ«'M°

the interest and cause of action be joint, the action must be brought by all the covenantees: and, on the other hand, if the interest and cause of action be several, the action may be brought by one only (a). So, though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint (a).

But where two persons covenant jointly and severally with another, the covenantee may bring an action against one of the covenantors only, though their interest in the subject-matter of the covenant be joint: as, where A. lets land to B. and C. and they covenant jointly and severally with the lessor to pay the rent or the like, he may bring an action against either of the covenantors; because they are sureties for each other for the due performance of the covenants, and it is as competent for each of them to covenant for the other, as it is for a stranger to covenant for both, which is an usual thing (a).

Even if the covenant were joint, and an action brought against one of the covenantors, he could take advantage of it only by a plea in abatement.—For where there are several covenantees or obligees, and one of them only brings an action, without averring in the declaration that the others are dead, the defendant may either take advantage of it at the trial as a variance upon the plea of non est factum, or pray over of the deed and demur generally. But where an action is brought against one of several joint covenantors or obligors the defendant can only take advantage of it by a plea in abatement; and though it should appear upon the record that there are others who ought to be joined as defendants, yet that will not be error {a).

For wherever any person who ought to have been joined as a defendant is omitted, it is pleadable in abatement only: the reason is because such plea gives the plaintiff a better writ, which is the true criterion to distinguish a plea in abatement from a plea in bar (b).

As to what covenants shall be construed to be precedent or not, it has been laid down, that the dependence or independence of covenants was to be collected from the sense and meaning of the parties, and that, however covenants might be in a deed, their precedency must depend on the order of time in which the intent of the transaction required their performance.—Conditions therefore are to be construed to be either precedent or subsequent, according to the fair intention of the parties to be collected from the instrument, and technical words should give way to that intention (c).

CO Eccleston v. Clipiham. I Saund. Ijj.1 v. Bath. I Stra. 503. re in no fit. '" I (f) Pordage v. Cole, I Saund. ,}10. n. 4.

(t) Cabell v. Vaughan. Ibid. 291. Gilbert I


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