signed for want of repairs, on a lease for years; plea that lessor was only tenant for life, and traverses that the reversion was in him 6 and his heirs, held good. Brudnell v. Roberts. 2 Wils. 143.

2 A lessee of a house, who covenants generally to repair, is bound to repair it if it be burned by an accidental fire. Bullock v. Dommitt. 6 Term Rep. 650.

3 So on a covenant to build a bridge in a substantial manner, and to keep it in repair for a certain time, the party is bound to rebuild the bridge, though broken down by an extraordinary flood. Brecknock, &c. Navigation Co. v. Pritchard. 6 Term Rep. 750.

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When the law creates a duty, and the party is disabled to perform it without any default in him, the law will excuse him: but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good notwithstanding any accident by inevitable necessity. 6 Term Rep. 751. 5 Covenant in a lease that the lessee, would not dig gravel out of any part of the demised premises without consent of the lessor, or paying to him 10s. per load, except what should be dug out of two acres, part of the premises demised, and part of a garden late in the possession of A. B.: By indorsement made on the lease before execution, it was agreed that it should be lawful for the lessor to let any part of the within demised premises for the purpose of making bricks or tiles, he paying the lessee 37. for every acre which he should so let; and further, that it should be lawful for the lessee to break up and dig, for gravel, any part of the within demised premises, he covenanting to pay to the lessor 20l. for every acre he should break up and dig, at or before the expiration of the time, and to make good the same; held that the lessee was not entitled to dig for gravel in the two acres of

garden ground mentioned in the lease without making them good. Flint v. Brandon. New Rep. 73.

The lessee covenanted to repair, &c. "casualties by fire and tempest excepted:" quære, if the landlord be bound to repair in either of the excepted cases? Weigall v. Waters. 6 Term Rep. 488.

To an action by a lessor for a breach of covenant on an indenture of lease in not repairing, &c. the lessee who has occupied during the whole term, and left the premises out of repair, cannot plead in bar that the lessor had only an equitable estate in the premises; for that is tantamount to a plea of nil habuit in tenementis. But, semble, the lessee is not estopped from shewing that the lessor was only seized in right of his wife, for her life, and that she died before the covenant broken; because an interest passed by the lease. Blake v. Foster. 8 Term Rep. 487.

It was covenanted in a lease, "that in case the lessee should suffer or permit more than one family or tenant to every 100 acres, to reside on, use or occupy any part of the premises, the lease should be void," &c. In an action for the breach of this covenant, it was held, that letting part of the premises to persons for a year, to cultivate on shares, made such persons tenants within the meaning of the covenant. Persons so occupying the land have an interest in it, and are not mere labourers or servants to the lessee. Jackson ex dem. Colden and others v. Brownell. 1 Johns. Rep. 267. In an action on a similar covenant, in another lease, where the quantity of land demised was 135 acres, it was held, that the allowing one tenant, besides the lessee, to occupy the premises, was not a breach of the covenant. Jackson ex dem. Colden and others v. Agan. 1 Johns. Rep. 273.

A covenant to repair, and deliver up the demised premises in good or

der and repair, runs with the land, and shall bind the assignee as much as the lessee, even if the assignee were not named by express words, 3 on account of the privity. 1 Dal

las, 210. 11 Covenant to deliver up the premises in good order on the 1st of March, 1778, but the same being taken possession of by an alien enemy, and held until the end of the term, and afterwards: It was adjudged, that the assignee of the lessee was excused from performance of his covenant; 1st, because a covenant to deliver up the premises in good repair, against an act of God or an enemy, ought to be special and express; 2d, because the defendant had no consideration, no premium, for the risque; and it was not in the contemplation of either party; and 3d, because equality is equity, and the loss should be divided; he who had the term, will lose the temporary profits of the premises; and he who has the reversion, will bear the loss done to the permanent buildings. Ibid.

VIII. Quiet enjoyment, Tille, Sc.

1 In covenant the breach may be assigned as large as the covenant. On a covenant for the quiet enjoyment of an office. if the plaintiff assigns for breaches, 1st, That the defendant put in a deputy, per quod he (the plaintiff) was compelled to sue out a mandamus; and 2d, prosecuted a writ of assize for the office, he need not state either the mandamus or assize, with a prout per recordum. In debt upon bond conditioned to perform covenants, a precise breach must be shewn. Brigstock v. Stanion. 1 L. Raymond, 106.

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2 Covenant for quiet enjoyment is generally to be understood against disturbance by lawful title: for lessee may have trespass for unlawful disturbance, and the law will 9 not intend that another covenants

to do for him what he can and ought to do for himself. Anon. Lofft, 460.

A covenant to save harmless against all persons, extends not to tortious acts; secus where it is particular against the acts of a particular personu. Perry v. Edwards. 1 Str. 400.

Covenant to save the lessee harmless from a rent charge; if he pay it without compulsion, he pays it in his own wrong. Hannam v. Redman. 3 Salk. 109.

If there is a power for husband and wife jointly to declare the uses of a fine of the wife's estate, and the husband covenants with a lessee for quiet possession against any person claiming under the husband, his executors shall be liable, if the lessee is evicted by a remainderman claiming under a joint exeention of the power. Hurd v. Fletcher. 1 Doug. 43.

II. lets a house excepting two rooms, and is disturbed therein, covenant lies not; otherwise, if excepting a passage thereto, and is disturbed in that. Coles's Case. Salk. 196.

In alleging a breach of covenant for quiet enjoyment, it is sufficient to allege that, at the time of the demise to the plaintiff, A. B. had lawful right and title to the premises, and having such lawful right and title, entered, &c. and evicted him, &c.; without shewing what title 4. B. had, or that he evicted the plaintiff by legal process, &c. Foster v. Pierson. 4 Term Rep. 617.

And on the authority of the foregoing case, the court (of K. B.) held that in alleging such a breach the plaintiff may state generally that A. B. lawfully claiming the title under the defendant, entered by vir tue of such title on the plaintiff, without setting forth the the particulars of A. B.'s title. Hodgson v. E. I. Company. 8 Term Rep. 278. Non infregit conventionem cannot be pleaded where the plaintiff as

signs a breach (as above,) adding, "and so the defendant did not keep his covenant, &c." 8 Term Rep. 278. 10 Alleging that "the party having a lawful right and title entered,” is equivalent to saying, "he entered by lawful right and title." 4 Term Rep. 621.

11 If a lessor covenant for quiet enjoyment against the lawful let, suit, entry, &c. of himself, his heirs and assigns, the declaration for a breach of the covenant need not expressly allege that he entered claiming title, if the disturbance complained of be such as clearly appears to be an assertion of right. Lloyd v. Tomicies. 1 Term Rep. 671. 12 In an action against executors, in

their own right, on a covenant for good title and quiet enjoyment against any person or persons whatever, contained in an assignment (by way of mortgage) of a lease to their testator, the declaration must shew a breach by some act of the covenantors: or that the evictor's title commenced prior to the assignment made by them. Noble v. King et al. 1 H. Black. 34.

13 A covenant in a conveyance of lands in America, during the time of the rebellion in that country, that the grantor had a legal title, and that the grantee might peaceably enjoy, &c. without the let, interruption, &e. of the grantor and his heirs, or of any other person whomsoever, is not broken by the States of America seizing the lands as forfeited for an act done previous to the conveyance; notwithstanding the subsequent acknowledgement of their independence by this country. Dudley v. Folliot. 3 Terin Bep. 584. 14 Such a covenant does not extend to the acts of wrong-doers, but only to persons claiming by a legal title: for, "let, interruption," &c. means lawful let and interruption." Term Rep. 584.

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15 In covenant for quiet enjoyment, the declaration stated, that before the demise to the plaintiff, the de

fendant had made a demise to A., which was then subsisting; that in order to get into possession, the plaintiff brought an ejectment but was nonsuited on account of that prior demise; and that he had never been in possession; plea that for the first half year of the plaintiff's lease, the plaintiff might have enjoyed, &c. but that for nonpayment of the reut for 21 days af ter that half year, the defendant had a right to re-enter, according to a proviso in the lease, and that he did re-enter, &c.: it was held on demurrer, that this was no answer to the plaintiff's demand. Ludwell v. Newman. 6 Term Rep. 458. 16 The seller covenants to the purchaser of an estate that he shall enjoy and receive the rents, &c. without any action, &c. or interruption by the seller or those claiming from him, or by, through, or with his or their acts, means, defaults, &c.: held that a breach was well assigned in respect of certain quit rents in arrear before and at the time of the conveyance, though not stated to have accrued while the seller was tenant of the premises. Howes v. Brushfield. 3 East, 491.

17 A. after granting certain premises in fee to B., and warranting the same against himself and his heirs, covenanted that notwithstanding any act by him done to the contrary, he was seized of the premises in fee, and that he had a good right, full power, &c. to convey; held, that either these general words, "good right, &c." though introduced by the words" and that," were part of the preceding special covenant; or if not, that the general construction of the instrument required, that the restriction in the other covenants to the acts of the covenantor and his heirs, must be applied to them also. Browning v. Wright. 2 Bos. S

Pull. 13.

18 Bat where the assignor of certain shares in a patent right covenanted that he had good rigl.t, full power

and lawful authority to assign and convey the said shares, and that he had not by any means, directly, or indirectly, forfeited any right or authority he ever had over the san.e; it was held, that the generality of the former words of the covenant was not restrained by the latter. Hisse v. Stevenson. 3 Bos. & Pull.

565.

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19 The lessor, after a demise of certain premises with a portion of an adjoining yard, covenanted that the lessee should have the use of the pump in the yard jointly with himseif, whilst the same should remain there paying half the expences of repair. "The word whilst, &c." reserve to the lessor a power moving the pump at his pleasure; and it is no breach of the covenant though he removed it without a reasonable cause; and in order to injure the lessee. But without those words it would have been a breach of covenant to have removed the pump. Rhodes v. Bullard. 7 East, 116. 20 Though a bill of sale for transferring the property in a ship by way of mortgage may be void, as such, for want of reciting the certificate of registry therein, as required by stat. 26 G. 3, c. 60, s. 17; yet the mortgagor may be sued upon his personal covenant contained in the same instrument for the repayment of the money lent. Kerrison v. Cole, 8 East. 231.

21 in actions of covenant the general

rule is, that breaches may be assigned by negativing the words of the covenant. But when such general assignment does not amount to a breach, the breach must be specially assigned-Covenants that the grantor is seized, and that he has a right to convey are within the rule covenants for quiet enjoyment, and against incumbrances, are within the exception. So is a covenant to warrant, and defend. Upon a breach of covenant of seizin, the legal measure of damages is the con

sideration paid, and interest thereon. 2 Mass. 433.

22 if one grant land, and by his deed covenant that he has good right to convey, when in fact he had no such right, such covenant is broken immediately on executing the deed. Such a covenant does not pass with the land to an assignee. The measure of damages in an action for the breach of such covenant is the consideration paid with interest thereon. 2 Mass. 455.

23 No action lies upon a covenant of warranty of real estate until eviction. 1 Mass. 464.

24 A covenant in a lease, that the lessee shall hold and occupy the demised premises during the term, amounts to a covenaut for quiet enjoyment during the term. Ellis & al. v. Welch. 6 Mass. 246,

25 The location of a town way over land so leased is no breach of such covenant; the lessee having by statute a remedy against the town, equally with the lessor. Ibid. 26 Where the grantor in a deed covenanted generally that he was well seized, &c. and had good right to convey the premises, &c. and then added further that he warranted the premises to the grantee and his heirs against all claims and demands, except the lord of the soil, it was held that both covenants must be taken together, and that the last qualified and restrained the first. Cole v. Howes. 2 Johns. Cas. 203. 27 In an action for a breach of the

covenants contained in a deed of seizin, power to sell, and for quiet enjoyment, &e. The declaration stated, that the defendant, at the time of executing the deed, was not seized or possessed of any right or title in lands, but that the title was in one Holland, &c. and that the plaintiff was expelled and disposses sed, &c. It was held that in declaring for a breach of the covenant for quiet enjoyment, it must be alleged that the plaintiff was evicted by one having a lawful title, and by

process of law. If the grantor was hot seized at the time of executing the deed, the covenant is immediately broken, and no action can be brought by the assignee of the grantee against the grantor: After the covenant is broken, it becomes a chose in action, and cannot be assigned, so as to enable the assignee to bring an action in his own name. Greenby and Kellogg v. Wilcocks. 2 Johns. Rep. 1.

28 A covenant to execute a good and sufficient deed means an operative conveyance, or one that conveys a good and sufficient title to the lands conveyed. Clute v. Robinson, (in error.) 2 Johns. Rep. 595.

29 A conveyance of a title, admitted to be doubtful, is not a good performance of a covenant to execute a good and sufficient deed. Ib. 30 But if the party covenanting to convey, has a good title, at the time of the decree of the court of chancery, or on the coming in of the master's report, it is sufficient, and he may then be allowed to perform the covenant, and save the forfeiture of his bond, on making compensation for the delay of performance. Ibid.

31 When A. conveyed land to B. and

the deed contained a covenant of seizin, &c. and B. afterwards, reconveyed the land to A. it was held, that the re-conveyance of the land did not extinguish the covenants in A.'s deed, but that B. might maintain an action for a breach thereof, against A. Bennett and Wife v. Irwin. 3 Johns. Rep. 363.

32 M. gave a deed to W. and covenanted, that he would warrant and defend W.in the quiet and peaceable possession of the premises. At the time of the coveyance, there was a previous mortgage on the land, and a suit in chancery was afterwards, brought by the mortgagee, and a sale of the premises decreed; and W. purchased the same at the master's sale and then brought an action against M. for a breach of

the covenant of warranty for peaceabie enjoyment; and it was held, that an action could not be maintained on the covenant, until there had been an eviction or aetual ouster, by a paramount law ful title. Waldron v. M.Carty. 3 Johns. Rep. 471.

33 In an action for breach of covenant of seizin and of quiet enjoyment, in a deed, the plaintaiff can recover only the consideration money paid, with interest and the costs of ejectment. Pitcher v. Livingston. Johns. Rep. 1.

34 He cannot recover damages for the improvements he has made, or the increased value of the land. Ib. 35 In an action for the breach of the covenant of seizin, in a deed, brought by the heirs, of the grantee against the grantor, it was held, that there being a failure of title, the covenant was broken as soon as it was made, and the grantee had an immediate and perfect right of action in his life-time, which went to his personal representatives, on his death, and did not descend to his heirs, who could not, therefore, maintain the action. Hamilton and

others v. Wilson. 4 Johnson's Re

ports, 72.

36 In action on the covenant of seiz

in in a deed, the defendant is not allowed to give in evidence a title acquired by him subsequently to bringing the action; but the rights of the parties must be determined, according to their existence and extent, at the time when the action was commenced. Morris v. Phelps. 5 Johns. Rep. 49.

37 If A. conveys land to B. with covenant of seizin, &c. and the title to part only of the land fails, the sale will not be rescinded, so as to give the vendee a right of action to recover back the whole consideration money; but the plaintiff is only entitled to recover damages in proportion to the value of the part lost; and the measure of damages is the value of the part for which the ti