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tioned without the plaintiff's confent; contrary to the covenant of the faid James Whitmarth, the leffee, and his affigns, in that be half made. The defendant pleaded non infregit conventionem, and a verdict was found for the plaintiff.

It was moved in arreft of judgment, (laft term,) that an action does not lie against the affignee upon the covenant whereof the breach is affigned, for that is a covenant merely perfonal, collateral, binding the leffee only, and does not at all affect the affignee; alfo that tithes are incorporeal, lying in grant; and therefore fuch a covenant cannot run along with them, as it would with lands which lie in livery. After this cafe had been very well argued at the bar by Burland, the King's ferjeant, for the defendant, and Glynn Serjeant for the plaintiff: The court took time, until this term, to confider; when judgment for the plaintiff was given to the following effect, in the absence of Mr. Juftice Gould, who heard the argument at the bar.

Curia. We are all of opinion (and fo is our brother Gould) that this action may well be fupported, and that the intention of the parties to the leafe fhall have it's due effect, without breaking through any of the cafes in the books concerning the many diverfities of covenants: The intention of the parties clearly was to keep the tithes continually in pernancy; for the covenant is (in effect) that the leffee and his affigns fhall take them in kind, that they might continue in the fame ftate as when the leafe thereof was made; that by temporary compofitions, and unity of poffeffion of the land and tithe thereof, modufes might not be let in, nor the manner of tithing be thereby obliterated; but that the existence of taking tithes in kind might be preferved.The leffee has alfo covenanted, for himself and affigns, to find fufficient wheat-ftraw for thatching the tithe-barn, &c, and al. though ftraw might be got elsewhere, yet it is plain the leffor's eye was upon the tithe of wheat-ftraw for thatching, although it is not fo expreffed in words.

This being the plain intention of the parties, and the end of the two covenants, in equity and justice, whereof the affignee had full notice (the equity being molt tranfparent), he ought to take the leafe cum onere; for, qui fentit commodum, fentire debet et onus: So that if we can poffibly make law and equity to flow in one channel, we will not leave the plaintiff remedilefs here, and fend him away to the court of Chancery. Therefore let us fee whether this equity cannot be got at, in a court of law? and whether there is any difference between land and tithe, with regard to the covenant in this cafe?

Con

Concerning exprefs covenants, and covenants in law; and which of them run with the land, and which of them are col. lateral and do not run with the land; and where the affignee fhall be bound without naming him, and where not; and where he fhall not be bound, although that he be exprefsly named; Spencer's Cafe, 5 Rep. 16. a. is a leading cafe; wherein the 5 Rep. 16. a court came to the following refolutions, which fhall be fhortly Spencer's

ftated.

Refolved,

1. When the covenant extends to a thing in effe, parcel of the demife, the thing to be done by force of the covenant is in a manner annexed and appurtenant to the thing demifed, and fhall run with the land, and fhall bind the affignee, although he be not bound by exprefs words; as if the leflee covenant to repair the houses, this is parcel of the contract, and extends to the fupporting of the things demifed.

2. It was there refolved, that if the leffee hath covenanted for himfelf and his affigns to make a new wall upon part of the land demifed, this fhall bind the affignee, becaufe named, and he is to take the benefit of it: So if warranty be made to a man, his heirs and affigns, the affignee shall take the benefit thereof, and fhall have a warrantia charta. Fitz. N. B. 135. But although the covenant be for him and his affigns, yet it is otherwife if the thing to be done be merely collateral to the land, and not concerning the thing demifed in any fort, and the af fignee fhall not be charged; as if the leffee covenant for himself and his affigns to build a house upon the land of the leffor which is not parcel of the demife, or to pay any collateral fum of money to the leffor, or to a firanger, this fhall not bind the affignee.

3. It was there refolved, if a man demife a flock of cattle or goods for any time, and the leffee covenants for himself and his affigns, at the end of the term, to deliver fuch cattle and goods, or a certain price for them, and the leffee affign the cattle, &c. this covenant fhall not bind the affignee; for it is merely a thing in action in the perfonalty, and wants fuch privity as is between the leffor and leffee of lands, in refpect of the reverfion. The fame law, if a man demife a houfe and lands for years, with a ftock of cattle or fum of money, rendering rent, and the leffee covenants for himself, his executors, adminiftrators and affigns, to deliver the ftock of cattle or fum of money at the end of the term, yet the affignee fhall not be charged with this covenant; for although the rent referved was increafed in refpect of the stock or fum, yet the rent iffues out of the land only; and therefore as to the ftock or fum, the covenant is perfonal, and fhall bind the covenantor, his executors and admini

ftrators,

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ftrators, who reprefent him, and not the affignee; and because it is not certain that the stock or fum will come to the hands of the affignee, for it may be wafted, or otherwife confumed or perished, through the leffee; and therefore the law cannot determine, at the time of making the leafe, that such covenant fhall bind the affignee.

4. It was there refolved, that if a man make a feoffment by the word dedi, (which implies a warranty) the affignee of the feoffee fhall not vouch; but if a man makes a lease for years, by the word conceffi or demifi, (which import a covenant), if the affignee of the leffee be evicted, he shall have a writ of covenant."

5. It was there refolved, that tenant by the courtefy, or any other who comes in in the poft, fhall not vouch, (which is inftead of an action), but if a wardship be granted by deed to a woman who takes a husband, and the woman dies, the hufband fhall vouch, by force of this word grant, although he come to it by act in law. So if a man demife or grant land to a woman for years, and the leffor covenants with the leffee to repair the houfes during the term, the woman takes a husband and dies, the husband fhall have an action of covenant, as well upon the covenant in law, upon these words demife or grant, as upon an express covenant. The fame law is, of tenant by ftatute merchant, ftatute ftaple or elegit of a term; and he to whom a lease for years is fold by force of an execution, fhall have an action of covenant in fuch cafe, as a thing annexed to the land, although he come to the land by act in law: As, if a man grant to a lessee for term of years, fo much lovers as fhall be fufficient to repair his house, or as he fhall burn in his house, or the like, during the term; it is as appurtenant to the land, and fhall run with it as a thing appurtenant to the land, into whatsoever hands the fame shall come.

6. It was there refolved, that a covenant by the leffee for years to repair, fhall bind all others; as well thofe who come in by the act of the party, as by act in law; and if it were otherwife, it would be great prejudice to the leffor.

7. It was there refolved, that the affignee of an affignee, shall have an action of covenant; fo fhall the executors of the affignee of an affgnee; fo fhall the affignees of the executors or adminiftrators of every affignee; for they are all comprised within this word, affignees: For the fame right which was in the teftator or inteftate, hall go to his executors or adminiftrators.

This cafe of Spencer was thus ftated by the court, (with fome brevity) to fhew what the law is, concerning covenants; which of them are [as it were] inherent, and run with the land, and

which of them are only collateral, or do not run with the land; and where the affignee fhall be bound without naming him, and where not; and where he fhall be bound although he be not expressly named,

There must always be a privity between the plaintiff and defendent to make the defendent liable to an action of covenant; the covenant must respect the thing granted or demifed; when the thing to be done, or omitted to be done, concerns the lands or eftate, that is the medium which creates the privity between the plaintiff and defendant. As if leffee for life, covenants for him, his executors, and adminiftrators, to build a wall within his term, and afterwards he affigns over his eftate, the grantee of the reverfion fhall have covenant against the affignees, and notwithstanding the covenant wants the word affigns, yet every affignee by accepting the poffeffion, hath made himfelf fubject to all covenants concerning the land, but not to collateral covenants; and covenants of repairs, and building walls or houses, are covenants inherent to the land, with which the affignee without fpecial words fhall be charged. Alfo where the leffor for years covenanted in his leafe, that at the end of the term, he would make a new leafe to the leffee or his affigns, and afterwards granted over his reverfion, and at the end of the term, the leffee brought covenant against the grantee of the reverfion, it was agreed, by all the juftices and ferjeants, that the action did well lie, Moore 159. c. 300.-For a covenant, which runs, and refts with the land, an action lies for or against the affignee at the common law, quia tranfit terra cum onere, although the affignees be not named in the covenant. And covenant lies against executors in every cafe, although they be not named, unless it be fuch a covenant as is to be performed by the perfon of the teftator, which they (the executors) cannot perform. Cro. Eliz. 553. and fee 1 Ro. Rep. 359, 360. Cro. Car, 221.

A man being leffee of two houfes and lands, .covenants for him and his affigns, to repair the houses; leffee affigns one of the houses, and parcel of the land to 7. S.; and the leffor for not repairing the houfe afligned to 7. S. brought an action of covenant against J. S., and adjudged that the action lies; for this is a covenant which runs with the term affigned; and although he be affignee of parcel, yet covenant lies against him for not repairing the faid parcel, and thereupon judgment was given for the plaintiff. W. Jones 245. pl. 3.

· Covenant against the defendant affignee of Dalton, for that upon an indenture of demife, Dalton covenanted for himself, his executors, and adminiftrators, to leave 15 acres every year for pafture abfque cultura; and that he granted his eftate to the de

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fendant, and that the defendant non reliquit quindecem acras ad. acras pafturam, but fuch a day and year plowed up all. And upon this count it was demurred, because the affignee not being named, it is not any covenant which fhall bind the affignee, for it is collateral. But all the court held, that this covenant is to be performed by the affignee although he be not named; because it is for the benefit of the eftate, according to the nature of the foil; but to do a collateral covenant, as to build de nova, or such like, fhall not bind him unlefs named; wherefore it was judged for the plaintiff. Cro. Jac. 125, 126.

.

We have cited thefe cafes (which are all good law) in order to fhew where affignees fhall, or fhall not be bound in covenant concerning lands; and fhall now confider, whether there is any difference between lands and tithes as to this matter.

It is objected, that tithes are incorporeal, and cannot endure or fupport a covenant by the leffee thereof, for him, and his affigns, to run with them, fo as to bind the affignee; but if we can ftrip the mind of the idea of matter, there feems to be no difference between an inheritance in lands and an inheritance in tithes.

Tithes is a tenth part of the profits of the lands; the profits of the land is the land itfelf; tithes are tangible and visible, may be put in view in an affize; an ejectment lies of them; a præcipe quod reddat lies of a portion of tithes, and they are realized by the ftat. 32 Hen. 8. which need not be mentioned; a warranty may be annexed to incorporeal inheritances. See Coke Lit. cap. Warranty; they have every property of an inheritance in land, except that they lie in grant, and not in livery. See Dier. 85.a.

47. a.

It was objected, that a rent cannot be referved out of any incorporeal inheritance, as of an advowson, tithes, &c. Co. Lit. But if the leafe be made of them by deed for years, it may be good, by way of contract, to have an action of debt against the leffee, but the leffor cannot diftrain; so that such rent referved upon a leafe of tithes, lying only in privity of contract, the affignee of the tithes is not chargeable with the rent to the plaintiff, and confequently cannot be chargeable with breach of covenant in the prefent cafe.

In anfwer to this, 2 Saund. 303, 304. The Dean and Chapter of Windfor v. Gover; Saunders, in his argument (which is an exceeding good one), touching a rent referved upon a leafe of tithes, fays, that it was a rent payable for the tithes, although it did not iffue out of the tithes ; as if a barn with a portion of tithes be demifed, referving 100l. per annum rent, this is referved as well in refpect of the tithes, as of the barn, and if the

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