-and real or personal. covenant for payment of rent by a lessee, implied from the reddendum of a lease (a). Covenants are never implied, except when express covenants on the same points are altogether wanting: it is usually said, that an express covenant qualifies and restrains the generality of an implied covenant, but it seems more correct to say, that the law implies a covenant in certain matters, when there is no express covenant on such matters, because it considers that there must necessarily have been some agreement thereon; but if there be any express covenant, that shews there was an agreement, and also what it was, and removes all ground for implying any further agreement (b). Covenants are also divided into real and personal. Covenants real are those which have for their object land or other real property, or something annexed to or connected therewith, and which run with the land, so that he which hath the land hath the benefit, or is subject to the burden of the covenants (c). Covenants personal are those which do not run with the land, but of which the benefit or the burden goes with sor; as, where a tenant for life : tion against the executor of the plied covenant for quiet enjoyment. Adams v. Gibney, 6 Bing. 656. (a) Infra, vol. iv. p. 30, n. (e). (b) 4 Cru. Dig. by White, 370; Line v. Stephenson, 5 Bing. N. C. 183. (c) Touchst. p. 161; 4 Cru. Dig. by White, p. 371. some particular person (a). Thus, a covenant to levy a fine of land (b), or a covenant by tenants in common, that the survivor shall convey to the heir of such as die first (c), is a covenant real; but a covenant by a man to pay another a sum of money, or to serve him, is a personal covenant. The important and essential distinction between real and personal covenants is, that the burden or benefit (as the case may be) of the former runs with the land, and extends to the heir or purchaser, and to all others who claim the land through such covenantor or covenantee, while the burden or benefit of a personal covenant extends only to the covenantor or covenantee himself, and his personal representatives (d). The leading case on the subject of covenants running with the land is Spencer's case (e). It was there resolved, that when the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words, (i.e. by the use of the word "assigns"); but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being; and the rule is illustrated by the case of a covenant to repair a house actually de (a) Touchst. p. 161; 4 Cru. Dig. by White, p. 371. (d) 4 Cru. Dig. by White, 372. Distinction bepersonal cove tween real and nants. (b) Touchst. 161. (c) 6 Jenk. 241. (e) 5 Co. Rep. 16. mised, which is a real covenant, and that of a covenant to build a house after the demise, which is a personal covenant. The latter covenant would, however, (according to the second resolution in the same case), be a real covenant, and run with the land if the assigns had been expressly named in the covenant, that is, if the lessee had covenanted for himself and his assigns. As the assignees of the estate of a lessee or grantee are bound by all covenants which run with the land, so are they entitled to the benefit of all such covenants as are entered into by the grantors or lessors (a). But, in either case, the assignee must be assignee of the whole estate, and not an undertenant (b); and the fact of the assignee becoming liable to a covenant does not remove or affect the liability of the original covenantee (c). The benefit of covenants real entered into by lessees or assignees at common law went to the heirs of the lessor or grantor (d); but no assignee or grantee of a reversion could take advantage of a covenant of this kind (e). By the statute 32 Hen. 8, c. 34, however, it was enacted, "that grantees and assignees of reversions, and their representatives, might take advantage of all covenants and conditions contained in the grant or lease, (a) Spencer's case, 5 Co. Rep. 16; 4 Cru. Dig. by White, 272. vol. iii. p. 537. (c) Barnard v. Godscall, Cro. Jac. 309; 1 T. R. 92, 95. (d) Lougher v. Williams, 2 Lev. 92. (b) Holford v. Hatch, 1 Doug. 183; Earl of Derby v. Taylor, 1 East, 502. Hence the practice of making mortgages of leaseholds by demise; see infra, 375. (e) 4 Cru. Dig. by White, in the same manner as the original grantors or lessors;" and by the same statute it was also enacted, "that lessees and grantees, their executors, administrators, and assigns, should have the same remedies against the grantees of reversions as they might have had against the original lessors or grantors." The points which had then been decided upon this statute are methodically stated by Sir Edward Coke (a); and the more recent decisions are mentioned in the notes on the statute in Evans's Collection of Statutes. See too, further, infra, Vol. iii. p. 74, n., p. 83, n. (b). If there are two or more covenantors, or two or Covenants, joint and more covenantees, the covenant may either be joint several. or several, or both joint and several. Thus, if there be two covenantors, they may bind themselves jointly, or may bind themselves severally, or may bind themselves both jointly and severally (c). And if there be two or more covenantees, the covenant may be entered into with them jointly, or with them severally, or in both ways (d). When, however, a covenant is entered into with two or more, and with each of them, it will not be considered joint and several, unless distinctly expressed as such by the deed itself, (a) 1 Co. Litt. 215. (b) It may be convenient to refer to a recent case, which has decided that the assignee of a reversion is not entitled, under the stat. 32 Hen. 8, c. 34, to an arrear of rent which has ac crued prior to the assignment. (c) See examples, infra, vol. (d) See examples, infra, vol. iii. p. 484, vol. v. pp. 370, 550. but will be deemed joint or several according as the interest of the covenantees in the subject-matter is joint or several (a). So, though the covenant be in form joint, yet, if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several; and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint (b). But where two persons covenant jointly and severally with another, the covenantee may bring an action against one of the covenantors only, though their interest in the subject-matter of the covenant be joint (c). From the ambiguous manner in which covenants are often worded, questions frequently arise on the words themselves, whether a covenant was intended to be joint or several or both (d); and also whether (a) Slingsby's case, 5 Co. Rep. 18; Eccleston v. Clipsham, 1 Saund. Rep. by Williams, 153; Anderson v. Martindale, 1 East, 497; Servante v. James, 10 B. & C. 410. Hence, when the covenant is intended to be joint and several, the expression should be, "with the said [covenantees, &c.] their heirs and assigns, and also as a separate covenant with each of them, his heirs, and assigns." (b) Windham's case, 5 Rep. 8 a; Dyer, 337 b; Wotton v. Cooke, 2 Mod. 82; Wilkinson v. Lloyd, 3 Mod. 263; Tippet v. Hawkey, Bull. Ni. Pri. 157; (c) Enys v. Donnithorne, 2 Burr. 1190; Lilley v. Hedges, 1 Stra. 553, S. C., 8 Mod. 166. As to the form of the action, i. e. whether debt or covenant, see Harrison v. Matthews, 10 Mee. & Wels. 768. (d) See the cases referred to in the preceding notes, and the |