6. Non est factum. 7. Non infregit conventionem. 8. Performance. 9. Release. 10. Set-off. VIII. Payment of Money into Court. IX. Evidence. X. Judgment. I. Of the Action for Breach of Covenant. COVENANTS are of two kinds, 1. Express. 2. Implied, or covenants in law. An express covenant is an agreement entered into, by deed indented or deed poll, between two or more persons, for the performance of certain acts, or for the forbearance to do certain acts. An implied covenant, or covenant in law, is an agree ment, raised by implication of law between two or more persons, in a deed indented or deed poll, from certain technical expressions used therein. For the violation of agreements of this kind (1) the law has provided a remedy by action of covenant, wherein the party injured may recover damages (2) in proportion to the loss sustained. A party bringing covenant on a deed poll must be named (1) In F. N. B. 4to. Ed. 343. A. it is said that in London a man shall have a writ of covenant without a deed, for covenant broken, and it is so said by Vavasor, Serj. in 22 Edw. 4. 2. a. cited in Comyn's Dig. London, N. 1. who refers to Priv. Lon. 149. in support of the same position. (2) Where it is necessary to enforce the performance of any agreement in specie, as the conveyance of land, execution of deeds, &c. or what is termed a specific performance, application must be made to a court of equity; for in the action of covenant damages only for the non-performance can be recovered. therein; for, where, upon oyer of the deed poll, it appeared, that the defendant promised to do a certain act, without saying, that he promised the plaintiff, it was holden that an action would not lie. Covenant will lie on letters patent, although there is not any counterpart sealed by the lessee, who is to be charged'. If A., for a valuable consideration, promises, by deed, not to do a certain act, an action of covenant may be maintained for the breach of such promise; but an action on the case will not lie: As where A. recovered a debt against B., and B. paid the condemnation money to A., whereupon A., by deed, released all actions, executions, &c. to B., and in the same deed promised to discharge all executions against B. upon the same judgment, and afterwards sued out execution thereon the court were of opinion, that the promise being by deed, B.'s remedy was by an action of covenant, and not an assumpsit (3). a Green v. Horne, Salk. 197. Comb. 219. S. C. b Bret v. Cumberland, Cro. Jac. 390. 521. fully stated post. 418. e Bennus v. Guyldley, B. R. M. 16 Jac. Cro. Jac. 505.S. C. & S. P. by the name of Bemishe v. Hildersley, said to have been adjudged, 1 R. A. 517. (A.) pl. 2. (3) Although it is a general rule that assumpsit will not lie, where there is a remedy of a higher nature*, yet there are some exceptions to this rule; as where two persons entered into articles of partnership for a term of years, and the deed contained a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership; and they dissolved the partnership before the years were expired, and accounted together, and struck a balance, which was in favour of the plaintiff, including several items not connected with the partnership, and the defendant promised to pay it; it was holden, that assumpsit would lie on such express promise. And Buller J. observed, that if no other articles had been introduced into the account, but those relating to the partnership, he should still have been of opinion, that assumpsit might have been maintained; for the question then would have been, whether a previous partnership being dissolved, and an account settled, was or was not, in point of law, a sufficient consideration for a promise. He had no difficulty in saying, that it was. Foster v. Allanson, 2 T. R. 479. A stronger exception, however, to the general rule above-mentioned will be found in the case of Nurse v. Craig, ante p. 248. Bulstrode v. Gilburn, Str. 1027. An action of covenant is not within the stat. 3 W. & M. c. 14. which makes the devisee chargeable jointly with the heir for the debts of his testator in respect of lands devised to him: the remedy there given is contined to the action of debt. II. Of the Exposition of Covenants. COVENANTS are to be construed according to the ob vious intention of the parties, as collected from the whole context of the instrument, ex antecedentibus et consequentibus, and according to the reasonable sense of the words. If there be any ambiguity, then such construction shall be made as is most strong against the covenantor (4); for he might have expressed himself more clearly (5). It is immaterial in what part of a deed any particular covenant is inserted; for, in the construction of it, the whole deed must be taken into consideration, in order to discover the meaning of the parties; as where, in an indenture of lease of a colliery, two lessees covenanted jointly and severally in manner following, viz. &c. here followed a number of covenants in respect to working of the colliery, wherein the lessees covenanted jointly and seve rally; then followed a covenant, that the monies appearing to be due should be accounted for and paid by the lessees, their executors, &c. (not saying, " and each of them"); it was holden by the court (absente Kenyon C. J.) that the general words, at the beginning of the covenants by the lessees, d Wilson v. Knubley, 7 East, 128. f Per Buller J. 5 T. R. 526. (4) See the opinion of Sir J. Mansfield C. J. in Flint v. Brandon, 1 Bos. and Pul. N. R. 78. (5) In like manner, where the words of the grant are doubtful, they are to be construed in favour of the grantee. This general principle has been applied to the construction of leases; hence it has been holden, that under a lease for fourteen or seven years, the lessee only has the option of determining it at the end of the first seven years. Doe d. Webb v. Dixon, 9 East, 15. in which the authority of Dann v. Spurrier, 3 Bos. & Pul. 399. 442. was recog "jointly and severally, &c. in manner following," according to the general rules of construction, extended to all the subsequent covenants on the part of the lessees throughout the deed, there not being any thing in the nature of the subject to restrain those words to the former part of the lease. In conformity to the rules before laid down for the construction of covenants, and in support of the apparent intention of the parties, covenants in large and general terms have been frequently narrowed and confined: As where A. leased a manor to B. for years, excepting all woods, great trees, timber trees, and underwood", &c. and covenanted with the lessee, that he might take fire-boot, super dicta præmissa, it was holden, that the lessee could not take fire-boot in a close of wood parcel of the manor, because, by the exception of the wood, the soil thereof was excepted; and the words super præmissa should be intended of such things only as were demised. It was admitted, however, that, by the covenant, the lessee was entitled to take the wood upon the other lands, for though the wood was excepted, yet the land was demised. The defendant sold the plaintiff a lease for years of a manor, and entered into a bond, with a condition that he would not do, nor had done, any act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor, or any other person; it was holden, that the condition was confined to acts done or to be done by the vendor, on the ground of the latter words being referrible to the former. So where in covenant against the executors of J. W., the declaration stated, that J. W., by indenture, granted land, &c. to the plaintiff in fee, and warranted the land, &c. against himself and his heirs, and covenanted that he was, notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee simple, and that he had a good right, full power, and lawful and absolute authority to convey; and assigned a breach, that J. W. had not at the time of making the said indenture, nor at any time before or since, good right, full power, and lawful and absolute authority to convey or assure the premises to the plaintiff in manner aforesaid. The defendants prayed oyer of the indenture, Cage v. Paxlin, 1 Leon. 116. cited by Ellenborough C. J. 7 East, 241. Broughton v. Conway, Moor, 58. cited by Lord Ellenborough C. J. in Gale v. Reed, 8 East, 89. k Browning v. Wright, 2 Bos, & Pul. 13. (by which it appeared that J. W. covenanted for himself, his heirs, executors, and administrators, to make a cartway, and that the plaintiff's should quietly enjoy without interruption from himself, or any person claiming under him, and lastly, that he, his heirs, or assigns, and all persons claiming under him, should make further assurance,) and then demurred: (after argument), it was holden, that the words" that he had a good right, full power, and lawful and absolute authority to convey," were either part of the preceding special covenant" that he was notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee;" or, if not, that they were qualified and restrained by all the other special covenants to the acts of himself and his heirs. But where releasors covenanted', that, notwithstanding any act, &c. by them done to the contrary, they were seised of the land in fee; and also, that they, notwithstanding any such matter or thing as aforesaid, had good right to grant the premises; and likewise, that the releasee should quietly enjoy the same without the lawful let or disturbance of the releasors, or their heirs or assigns, or for or by any other person; and that the releasee should be indemnified by the releasors and their heirs against all other titles, charges and incumbrances, except the chief rent payable to the lord of the fee; it was holden, that the general words of the covenant for quiet enjoyment, were not, in necessary construction, to be restrained by the language of the antecedent covenants for title and right to convey; although those antecedent covenants were certainly covenants of a limited kind, and provided only against the acts of the releasors; Lord Ellenborough C. J. (who delivered the opinion of the court) observing, "that the covenant for title, and the covenant for right to convey, are indeed what is somewhat improperly called synonimous covenants; they are however connected covenants, generally of the same import and effect, and directed to one and the same object; and the qualifying language of the one may therefore properly enough be consi dered as virtually transferred to and included in the other of them. But the covenant for quiet enjoyment is of a materially different import, and directed to a distinct object. The covenant for title is an assurance to the purchaser, that the grantor has the very estate in quantity and quality which he purports to convey, viz. in this case an indefeasible estate 1 Howell v. Richards, 11 East, 633. |