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Marston v. Hobbs,"
2 Mas. Rep. 437, 438.

Ibid. 438.

Ibid.

Marston v. Hobbs,
2 Mas. Rep. 438.
Emerson v. Prop. of
land in Minot,
1 Mas. Rep. 464.

3 Mas. Rep. 523.

no estate passed, to which these covenants could be annexed, and because, being in fact broken before any assignment could be made, they are choses in action, and not assignable.

XIII. Of covenants of warranty.

At common law, a warranty is a foundation of a voucher by the tenant when impleaded, and if he lost the land, he might have judgment to recover of the warrantor other lands of the value. Or when he could not vouch, or feared to be impleaded, he might, while tenant of the land, sue a real action on a writ of warranty of charters in which he might have judgment to recover his warranty, which would bind the lands of the warrantor from the date of the writ. But the demandant could not have execution for other lands in value until he had lost his land. And if they were lost in an assize, or on a writ of entry, in which damages were recovered against him, he might also have execution for other lands in value, and for damages.

Also, at common law, the tenant after he had lost his land, might bring a personal action of covenant, on the covenant to warrant and defend, and recover a satisfaction in damages; but he must assign, as a breach of the covenant, an ouster by a title paramount.

The two former methods of recovering a recompense in value have never been practised in this state; but the immemorial usage has been to recover damages in a personal action of covenant on the warranty.

As the defendant is not bound by a general warranty, to warrant against all claims and ousters, the plaintiff must therefore assign a breach by shewing an ouster by an elder title.

But a legal ouster is sufficient to support an action on a covenant of warranty; and a seizin lawfully acquired, by a rightful and peaceable entry, amounts to an ouster of the

tenant.

Gore v. Brazier,

As where an execution is regularly levied on lands, and seizin is delivered by the sheriff to the creditor on such 3 Mas. Rep. 523. levy; this is a legal ouster of the tenant from the lands.

XIV. Of the exposition of covenants.

1. Covenants are to be construed according to the obvious 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; for he might have expressed himself more clearly.

Plowd. 329.

cited by Ellenborough, C. J. in Iggulden v.

May

7 East's Rep. 241.

Selw. 387.

Per Lord Mansfield, in

2 Burr. 1637.

2. The distinction between the construction of covenants, implied by operation of law, and express covenants, is, Shubricks v. Salmond, that express covenants are taken more strictly; and a man may, without consideration, enter into an express covenant, by hand and seal, to the performance of which he is at all events bound.

But to this rule there are the following exceptions: Thus, If a man covenants to do a thing which then is lawful, and a statute comes, which declares it unlawful, or hinders him from doing it, the covenant is annulled by the statute.

So if a man covenants not to do a thing which it was then lawful for him to do, and a statute comes which compels him to do it, the statute repeals the covenant.

But if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful; yet shall the covenant remain unrepealed.

3. The generality of an implied covenant may be qualified and restrained by an express covenant.

As where the lessor demised and granted a house for a term of years, and covenanted, that the lessee should enjoy the house during the term, without eviction by the lessor or any claiming under him; it was holden, that the express covenant qualified the generality of the covenant raised by implication of law from the words demise and grant, and restrained it by the mutual consent of both parties, so that

Salk. 198.

Ibid.

lbid

Selw. 401.

Noke's case, 4 Co. 80.

Ibid.

Per Sir Edw. Coke quot, in Selw. 401.

1 Esp. Dig. 336.

Moore v. Jones,
Stra. 814.

1 Wils. 16.

2 Stra. 1186. S. C.

it should not extend any further than the express covenant. For the true construction of deeds is, to make one part of a deed expound another, and thus by making all the parts agree, to arrive at the true intention and meaning of the parties.

4. The dependence or independence of covenants is always to be collected from the evident sense and meaning of the parties; and however transposed the words may be, their precedency must depend on the order of time, in which the intent of the parties requires their performance.

XV. Of the pleadings on the part of the plaintiff, in actions of covenant.

The declaration in this action should set out expressly that the covenant was made by deed.

So plaintiff must make a profert of the deed in the deThoresby v. Sparrow, claration, and bring the deed into court, that the court may see whether it be executed according to law. Profert being made, defendant is entitled to crave oyer, and the court cannot then dispense with oyer.

.1 H. Bl. 254.

If the deed has been destroyed by fire, it may be so alRoutledge v. Burrell, leged, as an excuse for the non production of it: As where plaintiff declared, that by a certain deed poll, made, &c. (which said deed poll was casually burnt and destroyed by the fire, &c.) So, in another case, plaintiff instead of making a profert, pleaded that the deed was lost by time and accident; and this averment was adjudged good on special demurrer.

Selw. 434,435, in notis.

Read v. Brookman, 3 T. R. 151.

But if profert be made in the declaration, the deed must Smith v. Woodward, be produced; for the plaintiff, so declaring, will not be permitted to give evidence of the destruction of the deed, or of its being in the hands of the defendant.

4 East's Rep. 585.

Selw. 437.

Marston v. Hobbs,

2 Mas. Rep. 433.

It is sufficient to say "whereas by a certain indenture, &c. it is witnessed," &c. without a direct affirmation, that by such an indenture defendant covenanted.

In assigning breaches of covenants, the general rule is, that the plaintiff may assign breaches generally, by nega

tiving the words of the covenant. The exception to the rule is, that when such general assignment does not neces sarily amount to a breach, the breach must be specially assigned.

Covenants of seizin, and a right to convey, come within the rule. If the defendant was not seized, or if he had no right to convey, these covenants must necessarily be broken. They are called synonimous, because the same fact, the seizin of the defendant, which will support the first, will also support the other covenant. The defendant, in his bar, should regularly maintain his seizin, and then the plaintiff, in his replication, should aver who, in fact, was seized.

Covenants against incumbrances, and also covenants for quiet enjoyment, come within the exception; for the defendant does not covenant against all interruptions of the plaintiff's possession, nor against all possible incumbrances. To these covenants the breaches should be specially assigned, shewing the nature of the incumbrance and interruption complained of. Covenants against incumbrances are, in principle analogous to covenants for quiet enjoyment; and, in the entries, the incumbrance is specially alleged in the count.

2 Mas. Rep. 433.

Ibid.

Where there is a proviso in the deed, defeating the covenant, plaintiff need not set it out in his declaration, but leave 1 Esp. Dıg. 364. defendant to plead it.

Elliot v. Blake,

As on a covenant to deliver so much salt-petre, &c. and there was a proviso, that if defendant was prevented by the Sir T. Raym. 65. sea, that the deed should be void. It was held, that plain

tiff need not state the proviso.

But where there is an exception, making part of the

covenant, plaintiff, in setting out the breach, should also 1 Esp. Dig. 364. shew that the breach was not within the exception: For

the declaration is on the whole covenant, and the breach

will not be within it, unless so set out.

As where plaintiff declared on a covenant by the defen

dant, to repair all the pales of a garden then demised, ex- Sir T. Jones, 125,

7 Esp. Dig. 365.

Sherwood v. Nonnes,

1 Leon, 250.

Smith v. Sharp, 1 Salk. 139.

Esp. Dig. 368.

Syse v. Ellis, 1 Stra. 228.

Bull, N. P. 164.

1 Esp. Dig. 370.

1 Esp. Dig. 370.

cept those to the east side; and assigned the breach in not repairing secundum formam conventionis. This was held well after a verdict; but it was agreed, that it would have been bad on special demurrer, for want of setting out "that the pales were not those excepted."

Where a covenant is in the alternative, that is, where covenantor undertakes for one of two things, breach should be assigned as to both.

As where defendant covenanted that he would not take wood without the assent or assignment of the lessor or his assigns; it was held not sufficient to say that defendant took wood, without the assignment, of lessor or his assigns; for it might be with their assent, and so no breach.

How far the breach should be assigned, as affecting assignees, the distinction is settled in this case, viz. that where a thing is to be done by a man or his assigns, the breach must be in the disjunctive; that it was not done by him or his assigns: But where the act is to be done to a man or his assigns, it is sufficient to assign the breach, that it was not done to him, without mention of his assigns. But this rule does not apply where the action is not against the first covenantor or lessee.

For where the covenant was on a lease to defendant, by which he covenanted, that he, his heirs and assigns, would every year, plant eight crab stocks; and breach assigned, that he had not planted such a year: It was held to be well without mentioning his assigns; for the action being against the first lessee, an assignment was not to be presumed.

In covenant to pay a sum certain, there can be no apportionment of demand; for the breach must follow the covenant which is entire.

As where the covenant was, that defendant was to take plaintiff for his clerk, and allow him two shillings per quire for what he should copy; and breach assigned, the non-payment for four quires and three sheets: Judgment

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