COVE 
pounds, yet it is faid he may have covenant at his elec¬ 
tion. 2 Danv. 229. It is agreed that A. B. (hall pay to 
C. D. one hundred pounds for lands in E. this is a mu¬ 
tual covenant, whereon action of covenant may be brought 
if C. D. will not convey. But where there are mutual 
covenants, and the one not to be performed before a 
precedent covenant, in fuch cafe one covenant is not 
iuable till the other is performed : though if the cove¬ 
nants are diftinCt and mutual, feveral actions may be 
brought by and againfl the parties. 1 Lil. Abr. 350. In 
a covenant to pay another fo much money, he making 
him an eftate in fuch land, See. it has been adjudged, 
that if he tender the covenantor a feoffment, and offer 
to make livery, he may have aCtion of covenant for the 
money, as if he had made a title. 3 Salb. 107. Where 
a man covenants that he hath power to grant, and that 
the grantee Ihall quietly enjoy notwithftanding any claim¬ 
ing under him; thele are diftinCt covenants, for one goes 
to the title, and the other to the pofleffion. 1 Mod. 101. 
There is this difference however between a covenant and 
condition; a condition gives entry, and covenant gives 
an aCtion only. Owen, 54. A perfon cannot have action 
of covenant upon a verbal agreement, for it cannot be 
grounded without writing, except by fpecial cuftom. 
All covenants between perfons mult be to do what is 
lawful, or they will not be binding; and if the thing to 
be done be impoflible, the covenant is void. Dyer, 112. 
But where the thing is lawful at the time of the cove¬ 
nant made, and afterwards the matter agreed to be done 
is prohibited by act of parliament, yet fuch covenant 
w ill be binding. 3 Mod. 39. And if a man covenants to 
do a thing before a certain time ; and it becomes impof¬ 
lible by the adt of God, this (hall not excufe him, inaf- 
much as he hath bound himfelf precifely to do it. 2 Danv. 
Abr. 84. Though a covenant to (land feifed of lands to 
be after purchafed be void at law, unlefs there be fome 
new act to be done ; yet it feems, that a covenant to 
fettle lands of fuch a value, will charge after-purchafed 
lands, though the covenantor had none at the time of 
executing the covenant. Took v. Hading, 2 Fern . 97. 
If a perfon covenants exprefsly to repair a houfe, and 
it is burnt down by lightning, or any other accident, yet 
he ought to repair it ; for it was in his power to have 
provided againd it by his contraCt. Alleyn , 2 6. 1 Lil. Abr. 
149. But he is not fo bound by covenant in law'. Where 
lioufes are blown down by temped, the law excufes the 
leffee in an adtion of wade ; though in a covenant to re¬ 
pair and uphold, it will not. 1 Plowd. 29. If a lelfee for 
years, rendering rent, covenants for him and his afligns 
to repair the houfe, and after the leffee alligns over the 
term, and the leffor accepts the rent from the allignee, 
and then the covenant is broken ; notwithdanding ac¬ 
ceptance of rent from the aflignee, adtion of covenant lies 
againd the firft leffee, on his exprefs covenant to repair: 
and this perfonal covenant cannot be transferred by the 
acceptance of the rent. 2 Danv. Abr. 246. Adtion of co¬ 
venant alfo lies on covenant for payment of rent againd 
fuch leffee; but not action of debt after acceptance. 3 
Rep. 24. In covenant upon a demife, rendering rent, the 
defendant cannot fay, that part of it was to be allowed ; 
for this is a covenant againd a covenant. Comb. 21. An 
infant within age may bind himfelf apprentice ; but nei¬ 
ther at common law nor by datute may be bound by co¬ 
venant for his apprenticefhip, fo as to make him liable 
to an adtion of covenant, if he depart, &c. But by the 
cudom of London he may bind himfelf by his covenant 
at fourteen years old. 1 Cro. 129. 
There may be an agreement and covenant, only to be 
performed by the parties themfelves; and there are fome 
covenants which none but the party and his heirs may 
take advantage of, being Inch as concern the inheritance, 
and defeend to the heir, as knit to the edate ; covenants 
in grofs go to the executors, &c. 2 Danv. 235. Hot only 
parties to deeds, but their executors and adminidrators, 
ihall take advantage of inherent covenants, though not 
N ANT. q 75 
named ; and every aflignee of the land may have the be¬ 
nefit of fuch covenants: likewife executors and alligns 
are bound by them, although not named, as a covenant 
to repair, See. 1 Cro. 552. If a man covenants with ano¬ 
ther to do any thing, his heir (hall not be bound, unlefs 
he be exprefsly named; and yet where a leffee covenants 
to repair, the heir (hall have the benefit of the cove¬ 
nant, though not named, becaufe it runs with the land. 
5 Rep. 8. The executors and adminidrators of the cove¬ 
nantor will be bound by the covenant, though not named, 
unlefs the covenant be of fuch a nature as not to allow 
of its being performed by any other perfon but the cove¬ 
nantor. See Hyde v. Dean and Canons of Windfor, Cro. 
EHz. 553- 
All perfons to whom the land defeended, were by the 
common law entitled to the benefit of covenants'which 
run with the land ; but grantees of the reverfion were 
not. The datute 32 Hen. VIII. c. 34, therefore enacted, 
“ That all grantees of reverfions, (hould have the like 
advantages againd the leffees, their executors, See. by 
entry for non-payment of the rent, or for doing wade, 
or other forfeiture ; and the fame remedy by aCtion only, 
for not performing other conditions, covenants, or agree¬ 
ments contained in the leafes, againd t'h'e leffees, as the 
lelfors or grantors had.” The datute alfo gives the leffees 
the fame remedy againd the grantees of the reverfion, 
which they might have had againd their grantors. It 
mud not, however, be underdood from the general words 
of the datute, that the grantee of the reverfion can take 
benefit of every forfeiture by force of a condition, lord 
Coke conceiving the operation of the datute to be con. 
fined to fuch conditions as are either incident to the 
reverfion, as rent; or for the benefit of the edate, as for 
not doing of wade, for keeping the houfes in repair, for 
making offences, or fuch like; and not for the payment 
of any fum in grofs, delivery of corn, wood, or the like. 
See Co. Lit. 215, where-a variety of refolutions upon this 
datute are dated, and the authorities referred to. 
The liability of the allignee does not extend to cove¬ 
nants broken before the affignment ; as a covenant to 
build within a certain time, which was pad before the 
affignment. St. Saviour’s Southwark v. Smith, 3 Burr. 
1271. 1 Bla. R. 351. Nor is the allignee to be affected by 
any covenant broken after he has afligned over. Boulton 
v. Canon, 1 Frecm. 336. A collateral covenant to be done 
upon the land, as to build de. novo, (hall bind the allignee 
by exprefs words ; in this cafe, the aflignees are bound 
by the terms of the covenant, for unlefs named they 
would not be bound by law ; “ for the covenant concerns 
a thing which was not in cjje, at the time of the demife 
made ; but to be newly built after, and therefore (hall 
bind the covenantor, his executors and adminidrators, 
and not the aflignee ; for the law will not annex the co¬ 
venant to a thing which hath no being.” Spencer’s cafe, 
5 Co. 16 b. But as the law would fuflain fuch a covenant 
againd the covenantor and his afligns, if exprefsly in¬ 
cluded in the covenant, and give damages for its non-per¬ 
formance, it fliould feem to follow, that the covenantee 
would be intitled in equity to a decree for the fpecitic 
performance of fuch covenant to build ; and of this opi¬ 
nion lord Hardwicke appears to have been, in the ca(e • 
of the City of London v. Nadi, 3 Atk. 515. 1 Fez. 12. But 
in the cafe of Lucas v. Commerford, 3 Bro. C. R. 166, 
lord-chancellor Thurlow held, “ That there could not 
be a decree to rebuild in purfuance of a covenant, for 
that he could no more undertake the conduit of a re¬ 
building than of a repair.” 
At law the aflignee is liable only for the rent actually 
incurred, or covenants broken during his pofleflion. Boul¬ 
ton v. Canon, 1 Freem. 336. If therefore he aflign the 
very day before the rent becomes due, the leffor cannot 
maintain his action for it. Tovey v. Pitcher, Carth. 177. 
Nor will the circumilance of fuch affignment being per 
fraudem, as to a beggar, alter the cafe. Bullcr's N. P. 139. 
But whatever may be the rule of lav r upon this point, it 
feesus 
