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

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 (b).

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 (c).

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 60l. per ann. but there was a covenant to render 641. Lawes, 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 60l. per ann. 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

tinuance 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 641. 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 Laine's meadows, the defendant covenanted to pay 51. per acre for every acre of meadow, which he should plough up during the lease; and breach assigned in ploughing up Laine's meadow, &c. Plea; that for sixty years past, Laine'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; 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 far 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 (b).

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, &c. But semb. he is not estopped from shewing that the lessor was only seised in right of his wife for 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, yet if

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 oyer 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 (6).

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).

(a) Eccleston v. Clipsham. 1 Saund. 153. | v. Bath. I Stra. 503. et in notis.

(6) Cabell v. Vaughan. Ibid. 291. Gilbert

(c) Pordage v. Cole. I Saund. 320. n. 4.

G G

Therefore, where in a lease for seven years, containing the usual covenants that the lessee should pay the rent, keep the premises in repair, &c. a proviso was, that the lessee might determine the term at the end of the first three or five years, giving six months previous notice, and that then from and after the expiration of such notice, and payment of all rents and duties to be paid by the lessee and performance of all his covenants until the end of the three or five years, the indenture should cease and be utterly void. Ruled that the payment of rent and performance of the other covenants, are conditions precedent to the lessee's determination of the term at the end of the first three years, and that his merely giving six months' notice, expiring within the first three years, is not sufficient for that purpose (a).

Plaintiff covenanted to sell defendant a school-house, &c. and to convey the sameto him on or before the 1st of August, 1797, and to deliver up the possession to him on the 24th of June, 1796; and in consideration thereof, the defendant covenanted to pay the plaintiff 120/. on or before the said 1st of August, 1797: it was holden that the covenant to convey, and that for the payment of the money, were dependant covenants; and that the plaintiff could not maintain an action for the 120/, without averring that he had conveyed or tendered a conveyance to the defendant. Were it to be holden otherwise, the greatest injustice might be done; for supposing, in the instance of a trader who had entered into such a contract for the sale of an estate, that between the making of the contract, and the final execution of it, he were to become a bankrupt, the vendee might be in the situation of having had payment enforced from him, and yet be disabled from procuring the property for which he had paid (b).

But where A. covenanted to build a house for B. and finish it on or before a certain day, in consideration of a sum of money, which B. covenanted to pay to A. by instalments, as the building should proceed; the finishing of the house was held not to be a condition precedent to the payment of the money, but that the covenants were independent; wherefore A. might maintain an action of debt against B. for the whole sum, though the building was not finished at the time appointed (c). It is accordingly laid down that, if a day be appointed for the payment of the money, and the day is to happen before the thing can be performed, an action may be brought for the money before the thing be done : for it appears that the party relied upon his remedy, and intended not to make the performance a condition precedent. So in this case by the terms of the contract, two several sums of money were to be paid before the thing to be done was done.

(a) Porter v. Shephard. 6 T. R. 665.

(6) Glazebrook v. Woodrow. 8 T. R. 366. (c) Terry v. Duntze. 2 H. Bl. 389.

The plaintiffs therefore were clearly entitled to this action for the money without averring performance, and the defendant to his remedy on the covenants (a).

No precise technical words, however, are required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend on the circumstance, whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant, for the same words have been construed to operate as either the one or the other, according to the nature of the transaction: the merits therefore of a question of this kind, must depend on the nature of the contract, and the acts to be performed by the contracting parties, and any subsequent facts disclosed on the record, which have happened in consequence of the contract (b).

In covenant the plaintiff may assign as many breaches as he will. So in debt on bond for the performance of covenants, by stat. 8 & 9 W. 3. c. 11 (c).

On a covenant in London to repair houses in Surrey, the breach must be assigned at the place where, &c. viz. at London (d).

Where there has been an assignment by deed, it is sufficient to prove the assignment by the subscribing witness without calling the witness to the original deed; for the assignment having adopted the original deed in all its parts, it is become as one deed (e).

In covenant, if some breaches be well assigned and some not, and there be a demurrer to the whole declaration, the plaintiff shall have judgment for those breaches which are well assigned (ƒ).

A variance in setting out one of several covenants in a lease on which breaches were assigned, viz. the Cellar Beer Field, instead of Aller Beer Field, being considered as part of the description of the deed declared on, though the plaintiff waived going for damages for the breach of that covenant, is fatal (g).

To a count in covenant charging the defendants as executors for breaches of covenant by their testator as lessee, who had covenanted for himself, executors, and assigns, may be joined another count charging them, that after the death of testator and their proving his will and during the term, the demised premises came by assignment to D. A., against whom breaches were alleged, and concluding that so neither the testator nor the defendants after his death, nor D. A. since the assignment to him had kept the said covenant, but had

(a) Thorpe v. Thorpe. 1 Salk. 170. S.C. 1 Ld. Raym. 662. S. C. Com. R. 98. S. C. 12 Mod. 455.

(d) Sheirs v. Bretton. Cro. Jac. 446.
(e) Nash v. Turner. 1 Esp. R. 217.
(f) Duppa v. Mayo. I Saund. 282-86

(b) Hotham v. East India Company. x T. n. 9. R. 638-43.

(c) Symms v. Smith. Cro. Car. 176.

(g) Pitt v. Green. 9 East. 188.