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When the covenantees

should join.

binds him, and he may be sued in covenant. (c) By local custom also, (as in London and Bristol,) covenant lies, though the demise be by parol; (d) which custom must be taken so strictly as only to charge the party to the demise, and not his representatives. (e)

An action of covenant cannot be brought upon an indenture or deed-poll by a person who is not a party thereto, although the covenant be for his benefit. (ƒ)

Tenants in common may sue in covenant the lessee of a house, who after the demise, but before the breach alleged, becomes a co-tenant with the plaintiffs in the same estate. (g)

The necessity of joining the several covenantees as plaintiffs, in an action of covenant depends entirely upon the nature of their interest, and of the cause of action arising out of the covenant; for if such interest be joint, no words of severalty can dispense with the necessity of joining the parties. For instance, if the interest be joint, though the covenant be made with A. and B. jointly and severally, or with A. and B. and with each of them, A. and B. must nevertheless join in the action. (h)

A. demised premises to B. and died, having devised a moiety of his reversion to C. and the other moiety to D.; it was agreed by the Court that C. and D. might sue jointly for the rent. (i)

B., by indenture covenanted with C. and D. and to and

(c) Lord Ewre v. Strickland,
Cro. Jac. 240. Brett v. Cumber-
land, sup. S. C. Cro. Jac. 522.

(d) Fitz. Nat. Brev. 146. (A.)
Wade v. Bemboe, 1 Leon. 2.
(e) Ibid.

(f) Green v. Horne, 1 Salk. 197.
Ex parte Richardson, 14 Ves. 187.
(g) Yates v. Cole, 2 B. & B. 660.
(h) Slingsby's case, 5 Co. 19.
Barry v. Perin, Moore, 849.

Anon. 2 Leon. 47. Saunders. Johnson, Skin. 401. Yate . Roules, 1 Bulstr. 25. S. C. Yelv. 177. Eccleston v. Clipsham, 1 Saund. 153. S. C. 2 Keb. 338, 335. Spencer v. Durant, 1 Show. 8. S. C. Comb. 115. Anderson . Martindale, 1 East, 497, et vide Platt on Covenants, 127.

(i) Midgley v. Lovelace, Carth. 289.

with E. and F. his wife, (who afterwards became the wife of D.) and their assigns, and to and with each of them, that he (B.) at the time of sealing and delivering the indenture was lawfully and solely seised of a certain rectory. An action was brought by D. and F. his wife for a breach of the covenant. After verdict and judgment for the plaintiffs in B. R. the judgment was reversed on error in the Exchequer Chamber, upon the ground, that notwithstanding the words "and to and with each of them," the other covenantee should have joined in the action, because the interest which passed to the covenantees by the covenant was joint, and not several. (k) So if a man demise black-acre, white-acre, and green-acre to A. B. and C., and covenants with them, and each of them, that he is the lawful owner, this is a joint covenant, and A. B. and C. must all join in an action for a breach of it. (1) And where one covenants with three to pay money to one of them, this is a joint covenant, and all must join in suing upon it. (m)

So where the plaintiff declared that A. covenanted with him and two others, parties to the deed, to pay them an annuity for the use of a third person; though the plaintiff averred that the other two never sealed the deed, it was held on demurrer, that the interest which passed being joint, and the other two being named in the deed as covenantees, not only they might sue though they had not executed, (n) but they must; and that the declaration was bad, it not appearing that they had refused to assent to the deed which they had omitted to execute. (o) But it is left doubtful by the case, whether the declaration would have been good if it had alleged such refusal.

Where rent was reserved to a person who was not a party to the lease, but whose guardian consented for him, and the

(k) Slingsby's case, 5 Rep. 19. S. C. (called Beckwith's case,) 3 Leon. 160. (1) Ibid.

(m) Per Fenner, J., 1 Bulstr. 26.

(n) See Clement v. Henley, 2 Rol. Abr. Fait. F. pl. 2. Vernon v. Jefferys, 2 Str. 1146. 7 Mod. 358. (0) Petrie v. Bury, 3 B. & C.

M M

353.

When they may sever.

lessees covenanted with him and the lessors, who were his trustees, to pay rent, &c.: it was held that he could not join with the actual lessors in an action upon the covenant, the Court not being at liberty to presume that any interest passed from any person except the demising parties. (p)

If a lease is made by A. to B., and the lessee enters into the usual covenants, and afterwards A. grants the reversion to C. and D., and the heirs of D., but as to the estate of C. in trust for D., the benefit of the covenants will pass to them jointly, and a declaration for breach of covenant by C. alone will be bad on demurrer. (q)

On the other hand, if the interest conveyed by the covenant be several, no words of joinder can make it imperative upon all the covenantees to join in the action; for though, inasmuch as the covenant is expressed to be joint, they may all join; yet as the interest is several they may sever at their option. (r) As if a man demise black-acre to A., white-acre to B., and green-acre to C., and covenant with them that he is the lawful owner of the several acres, the covenant is several, because their interests are several; and each may maintain a separate action against the covenantor in case of a breach respecting his particular interest. (s) So if by deed reciting two distinct annuities granted to A. and B., the grantor covenants with them, their executors, &c., for payment, the covenant is several, and the executors of one of them dying, may maintain an action for breach of covenant; (1) but if the grant of an annuity be to two habendum in moieties, with a covenant for payment, the interest is joint. (u)

(p) Lord Southampton v. Brown, 6 B. & C. 718, et vide Berkeley v. Hardy, 5 B. & C. 355. 8 Dowl. & Ryl. 102.

(q) Scott v. Godwin, 1 B. & P. 67. (r) Justice Windham's case, 5 Rep. 8. Wotton v. Cooke, Dyer, 337. Barrey v. Perin, Moore, 849. Wilkinson v. Lloyd, 2 Mod. 82. Eccleston v. Clipsham, 1 Saund.

153. S. C. 2 Kel. 338, 385. James v. Emery, 8 Taunt. 245. Sed vide Anon. 2 Leon. 47.

(s) Slingsby's case, ub. sup. (t) Withers v. Bircham, 3 B. & C. 254. 5 D. & R. 106.

(u) Lane v. Drinkwater, 1 C. M. & R. 599, et vide Selwyn's N. P. 465, 9th edit.

If one of several joint covenantees be dead, the survivor must aver the death in his declaration. (s) And so if one named in the indenture have omitted to seal it, this must be specially averred. (t)

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covenantors

When several persons covenant jointly, all the covenantors When the must be made defendants: (u) but if they covenant jointly should be and severally, then it is at the option of the covenantee to joined. sue them jointly or severally; (v) which distinction between the necessity of joining several covenantors and several covenantees is thus elucidated by Lord Coke :-" Between Matthewson and others plaintiffs, and Lydiate defendant, the case was such a charter party indented between the master and the owner of the ship of the one part, and George Lydiate and six other merchants of the other part; by which the master and owner covenant with the merchants to ship certain merchandizes at such a port beyond sea, and to transport them to the city of London; for which each of the merchants covenants separatim with the master and owner, that one merchant shall pay 31., another 31., &c. et sic de cæteris. And the words of the covenant are conveniunt separatim, &c., and in the end is this clause, et ad performationem omnium et singularum conventionum ex parte præd mercatorum perimplend' quilibit mercatorum præd separatim obligat seipsum præfat' magistro et proprietariis, in double the freight. And now on one of the several covenants an action of debt was brought against Lydiate, one of the merchants on the said indenture. To which the defendant pleaded that the seal of another of the merchants fixed to the said indenture was broken from the deed; upon which the plaintiff did demur in law. And in this case it was resolved :

·

"1st. That although the merchants join in covenant scil.

(s) Osborn v. Crosbern, 1 Sid.

238.

Scott v. Godwin, 1 B. & P.

67.
(t) Vernon v. Jefferys, Str. 1146.
S. C. 7 Mod. 358.

(u) 1 Wms. Saund. 154, n. 1.
(v) Lilley v. Hedges, 1 Str. 553.
S. C. 8 Mod. 166. Enys v. Doni
thorne, Burr. 1190.

conveniunt separatim, yet this word separatim makes it several covenants, and not a joint covenant. Also the said later clause ad performationem omnium et singularum, &c., is in law several, by reason of this word separatim, and this word shall be referred to the several covenants before.

"2d. It was resolved, that although the covenants on the part of the master and owner were joint, yet the covenants on the part of the merchants stood several: and for this cause if the seal of one of the merchants be broken from the deed, it should not avoid the deed but only against him; but if any of the seals of the master or owners had been broken from the deed, all their covenants had been defeated. And if the deed had been razed in the date after the delivery, it had gone to the whole. But when the covenants are several, they are as several deeds written in one and the same piece of parchment. And judgment was given accordingly.” (w)

It is to be observed, that though a covenant be joint, yet if it be broken by the tort of one of the covenantors, the other covenantor shall not be charged with this breach of covenant; thus, though on a joint demise by A. and B. an action for breach of the covenant for quiet enjoyment by the entry of a stranger, must be against both, yet if one of the covenantors enter tortiously upon the lessee, his act shall not be charged upon the other; but the covenant shall for this purpose be taken as several, and the wrong-doer alone be sued. (1)

Upon the whole, therefore, it appears that where there are several covenantees, they must all join if their interest be joint, although the covenant be several; but may all sever if their interest be several, although the covenant be joint; and that when there are several covenantors, they must all be joined, where the covenant is joint, and not several; but may either be joined or sued separately, when the covenant is several as well as joint.

(w) Mathewson's case, 5 Rep. 23. (x) Coleman v. Sherwin, Carth.

97. S. C. 1 Salk. 137.

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