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sererally. It is as competent for each covenantor to covenant for the other as for a stranger to covenant for both. Robinson v. Walker, Enys v. Donnithorne, Lilley v. IIodges, Tippens v. Coates33 ; Eccleston v. Clipsham (supra).

Section 10Tenants in Common.

(1) It is interesting to observe the application of the foregoing principles to such well-known relationships as tenancy in common and partnership.

(2) It is stated in Eccleston v. Clipsham (supra) and in the notes thereto that, though a covenant may be joint and several in its terms, yet, if the interest and cause of action be joint, the action must be brought by all the covenantees. This rule is, doubtless, subject to the exception that, though a covenant is in terms with a number of persons jointly, if the beneficial interest of each is several and there is no interest in any two, one may sue by reason of a breach. In Midgeley y. Lovelace36 it is said that tenants in common may, at their election, join in an action of covenant, but, having several interests, they may likewise, as respects these, sue separately. In Kitchen v. Buckley37 tenants in common joined in a suit upon a covenant to repair. It is obvious that their interest in the repairs was joint. In the case of a joint lease by two tenants in common reserving an entire rent the two may join in an action brought to recover the rent, but if there be separate reservations to each there must be separate actions. Powis v. Smith, Wilkinson v. IIall, Lam y. Danforth.38 The benefit of a covenant by a lessee in what is clearly a joint demise by those who are in fact tenants in common runs with the entire reversion only. Therefore all the lessors of a lease so jointly made must join in suing for a breach of such covenant. Thompson v. Hakewill (supra). Even if one were dead his representatives would be necessary parties. But, under different circumstances it was held in Roberts v. Holland 39 that devise of a reversion of a lease to six tenants in common as such entitled each of them to sue alone as respected his own interest upon the covenants that ran with the reversion. Wills, J., said, at page 667, that “They are not seised per mie et per tout, but each has one undivided sixth part and the covenant becomes equivalent to sir separate covenants on which separate actions

25 (1703) 7 Mod. 154 ; (1761) 2 Burr. 1190; (1723) 1 Str. 553; (1853) 18 Beav. 401. 33 (1701) Carth. 289.

(1675) 1 Lev. 109.
(1822) 5 B. & Ald. 850; (1835) 1 Scott 675; (1871) 59 Maine 322.
(1893) 1 Q. B. 605.


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27-C.B.R.--VOL. III.

can be brought.” He quotes Platt on Covenants, page 130:“Where there is no express contract with all and their legal interest is several the covenantees must sue separately, yet where the contract is entered into with the covenantees jointly and the estate taken by them is several, they may at their option sue jointly or severally; jointly in respect of the joint contract, severally in respect of the interest.” Says Wills, J.:-" That shows that where the co-tenants have separate interests there are in effect separate covenants."

Section 11.Partners.

(1) Covenants by mercantile partners, presumptively joint at law, remain such during the lifetime of the covenantors, and continuance of the partnership, but, upon the death of any one partner covenantoi the covenant is treated in equity (which holds that there is no survival of a partnership estate) and in some jurisdictions by statute, es so far joint and several that the covenantee, who may not administer the deceased's estate, may prove against it. Re McRae, Forster 1. Davis, Norden v. McRae, Clarke v. Bickers, Kendall v. Hamillon, Partnership Act, Re II odgson, Beckett v. Ramsdale*o; Beresford v. Browning (supra). Re Ilodgson, Beckett v. Ramsdale, supra, hold: that the creditor of a partnership, although not strictly a joint and several creditor, has concurrent remedies against the estate of a deceased partner and the surviving partner and it is immaterial which remedy he pursues first; but the surviving partner must be represented at the taking of accounts of the estate of the deceased partner and the partnership creditor should not come into competition with the separate creditors of the deceased partner.

(2) Joint covenants by mercantile partners are treated as several where they concern pre-existing partnership liabilities. A covenant for payment of a partner's share being one for discharging a preexisting joint and several liability, is regarded as if itself joint and beveral. Beresford v. Browning (supra). But in Wilmer v. C'urry'', seemingly a doubtful authority, a joint corenant of continuing partners to pay for the purchase of an outgoing partner's share was hell to be not one concerning pre-existing liability, and not several. If the obligation of the partner is one that arises solely from the covenant the nature, joint or several, of the covenant will depend upon the terms thereof. Sumner v. Powell (supra); Beresford v. Browning (supra).

40 (1983) 25 C. D. 16 (C.A.): (19455) 14 Sim. 639: (1879) 4 A. C. 304; (1890) 53 and 54 Vict. ch. 39, s. 9; (1985) 31 C. D. 177 (C. A.).

(1848) 2 DeG. & Sm. 347.

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Section 12-Effect of Bankruptcy.

(1) The various Bankruptcy Acts provide for the case of a joint covenantor bankrupt, so that his fellow covenantors may sue without joining him or his trustee, and so that creditors may with respect to bankrupt joint and several covenantors prove against the joint estate and also against the separate estate of each covenantor. In Re Parkers, Ex-Parte Sheppard; Banco de Portugal v. Waddell; In re P. Macfadyen, Ex-Parte The Vizianagaram Mining Company, Ltd.; In re Kent County Gas Light and Coke Company. 42

Section 13English Legislation. (1) By the Conveyancing and Law of Property Act (Eng.) (1881), 44 & 45 Vict. ch. 41, sec. 60, a covenant and a contract under seal, made with two or more jointly, to pay money or to make a conveyance, or to do any other act to them or for their benefit is deemed to include and by virtue of the Act implies an obligation to do the act to or for the benefit of the survivor or survivors of them and to or for the benefit of any other person to whom the right to sue on the covenant, contract, bond or obligation devolves. The section, which extends to a corenant implied by virtue of the Act, applies only if and as far as a contrary intention is not expressed in the covenant, contract, bond or obligation, and has effect subject thereto and to the provisions thereof. The section is not retroactive. The effect of it, taken with Sections 58 and 59, is to enable effective covenants to be made in such simple forms as “ A covenants with B that, &c.," or "A hereby covenants with B and C that, &c., except in the case of covenants relating to land the burden whereof is to run with the land. In such covenants the obligation should expressly extend to assigns.

Section 14Law of the United States.

(1) United States law as to joint and joint and several covenants does not differ in any material respect from that of England or of Canada.

(2) The doctrine of Slingsby's Case is upheld. It is a general rule that the effect of the covenant will correspond with the interest of the covenantees unless the language of the covenant compels a different construction. Calvert v. Bradley, Buckner v. Hamilton, Comings v. Little, Westcott v. King.43

42 (1887) 19 Q. B. D. 84; (1580) JA. C. 101 ; (1908) 2 K. B. 817 (C.A.) ; (1913) 1 Ch. 92, 82 L. J. Ch. 28.

(1853) 16 How. (U.S.) 580; (1855) 16 Illinois 487; (1837) 24 Pick. (Mass.) 206; (1852) 14 Barb. (N.Y.) 32.



(3) Covenantors may covenant jointly or severally, or jointly and severally. Ernst v. Bartlett. The presumption is that an obligation assumed by two or more is joint. Donahoe v. Emery, Comings v. Little, Philadelphia v. Reeves45.

(4) One of the conclusions of Smith v. Poclington +6—that the covenant in law for quiet enjoyment, implied from the word “demise" in a lease operates only against the actual demisor and not against one who joins with him merely for conformity-has been accepted and extended. There is quite a body of United States law as to the effect of joinder for conformity. Agar et al. v. Streeter et al.," holds that when a wife joins in her husband's deed of his property, the covenants being in form joint they are usually not hers, but his only. Where, however, she, her husband so intending, receives the consideration, the covenants are treated as joint. The decision follows Arthur v. Caverly*8. The theory of these cases is that the execution by the wife of her husband's deed is impliedly for the purpose of statutes requiring it to make the husband's deed fully effective, and that if the intention is to effect any independent interest of the wife it is reasonable to require some special provision indicating that her separate interests are to be affected. Ketchell v. Mudgett. See also Edwards v. Davenport, Jackson v. Vanderheyden, Marvin v. Smith.49

+ (1 800) 1 Johns. Cas. (N.Y.) 319.

15 (1845) 9 Met. (Mass.) 63 ; (1837) 24 Pick. (Mass.) 266 ; (1865) 48 Pa. St. (Penn.) 472.

** (1831) 1 Cr. & J. 445.
47 (1914) 183 Mich. 600 ; 150 N. W. 160.
48 (1893) 98 Mich. 82 ; 56 N. W. 1102.

49 (1877) 37 Mich. 81: (1883) 20 Fed. 756; (1819) 17 Johns. (NY) 167 ; 8 Am. Dec. 378; (1871) 46 N.Y. 571. Ottawa.




THE CANADIAN BAR REVIEW is the organ of the Canadian Bar Association, and it is felt that its pages should be open to free and fair discussion of all matters of interest to the legal profession in Canada. The Editor, however, wishes it to be understood that opinions expressed in signed articles are those of the individual writers only, and that the Review does not assume any responsibility for them.

It is hoped that members of the profession will favour the Editor from time to time with notes of important cases determined by the Courts in which they practise. IN Contributors' manuscripts must be typed before being sent to the Editor at

44 McLeod Street, Ottawa.


WINNIPEG MEETING OF THE C. B. A.-The Tenth Annual Meeting of the Canadian Bar Association was held at Winnipeg on the 26th, 27th and 28th days of August. In every respect--the number of members in attendance, the presence of representative men from abroad as guests, the high quality of the addresses delivered, and the utility of the reports reflecting the operations of the Association for the past twelve months—the meeting was an unqualified success and well maintained the traditions of value that began with the first of such occasions and have kept even pace with the growth of the organisation in the intervening years.

There is no single feature of these meetings more conducive to the corporate welfare of the Association than that which makes a demand upon each individual member for the gesture of friendship toward his fellow-members; and the measure of realisation of that demand depends much upon the atmosphere of welcome and hospitality supplied by the local Bar at the place of meeting. It is safe to

say that the element of good fellowship was never more in evidence than in Winnipeg last month; and in this respect the occasion was given a happy impulse by the cordial reception and unremitting entertainment of the visitors by the Winnipeg lawyers. As a result the public proceedings were infused with a fine spirit of concord, and events of a purely social character took on a quality of camaraderie that will set the fashion for future gatherings. No one could have left Winnipeg without sheltering in his heart a deeper sense of unity

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