Pennant's case.

Covenant not to assign.

243.; Godbolt, 120.) The word "assigns" is not in the covenant. They do not concern or touch the "thing demised;" they are as collateral as to deliver a horse, or pay a sum in gross. (Hardres, 88.) A mere personalty, no privity.

But this is a covenant of a very different nature and import: a covenant "not to assign," has only for its object who shall occupy it; there is nothing to be done in the land, nor upon it. (See post, p. 58.) Lord Coke, Pennant's case. It may be contrived so secretly that nobody may know of it: it is collateral. But this covenant has for its object, not “who" shall occupy, but "how" it shall be occupied : it is to enforce the occupation as a tithe let it go where it will, it shall be enjoyed in the same form, plight, and condition, as it is delivered to the lessee: the covenant leaves it quite open, and as a matter of total indifference" who" the occupier is, provided it is occupied as a tithe, and taken in kind: for the covenant, not to let the farmers have the tithe, is nothing more nor less than a covenant that they shall be taken in kind, if the farmers themselves are not to have them. In another respect it is totally different: the covenant, not to assign generally, must be quite personal and collateral, for it can only affect the lessee himself, and is so far from being meant to reach the assigns, that it is inserted to prevent there being any assigns at all whereas this lease grants the tithes to the lessee, his executors, administrators, and assigns, and the covenant is only to keep them in esse and in that separate state of existence, which they would lose by being blended and confounded with the other nine parts in the hands of the farmers: and though I admit a covenant

not to assign generally" is collateral, and collateral covenants not relating to the thing demised, do not bind the assignees. Yet no case has been cited, that a covenant for lessee and his assigns, not to assign to a "particular person," would not bind him; and I think it would, for it falls within every rule laid down by Lord Coke, in Spencer's case. A covenant to do any thing upon land de novo, as to build, though a collateral covenant, binds assignees, if named, and will not bind them, unless named; so here, it relates to the thing, assigns are named, and there is privity: but this covenant is more, because it is the guardian of the thing demised.

Suppose, in a lease of land, a covenant for assigns to set out the tithes in kind, without making any composition or agreement for them with the parson or impropriator; this would be a proper covenant, where part is exempt and part not, to prevent an application of payment to the whole: would it not bind the assignee, as a regulation of the manner in which he would have his farm enjoyed? This is nothing more than that covenant inverted: the one is, you shall not give money;" that is, 'you shall not take it." The case put is,

you shall pay it in kind:" the present case is, you shall receive it in kind." It was said, that by the assignment to a person not within the restriction, it was totally vanished: and Whitchcot v. Fox (Cro. Jac. $98.) was cited to prove, that if there was a covenant not to alien, except to a brother, and an alienation was made to a brother, the brother might alien to anybody else. This is rather a strong case, and certainly repugnant to the intention of the parties, which was to keep the estate in the family of the lessee; but admitting that case to be law, yet it does not apply for the brother being totally excepted, he takes the assign

ment exactly in the same manner as if there had been no covenant at all whereas the covenant here does not restrain the assignment, with an exception of any particular person, but leaves it open to an assignment by all, subject to such terms as affects the very vital principal of the "thing let" in the hands of the lessee himself.

In the case put, the covenant did not affect the right of assigning to a brother in the hands of the lessee: therefore it could not affect it in the hands of his assignee: but this covenant bound the lessee: and for the reasons and upon the distinctions mentioned, it binds the defendant, his assignee.

The COURT did not think it a mere collateral covenant unconnected with the tithe, but a covenant materially and essentially tending to preserve the "thing demised," and as such, obligatory on the assignee, and therefore gave judgment for the plaintiff.

The recent case of Keppell v. Bailey (2 Myl. & K. 517.) received a very elaborate discussion upon the same subject; but the general doctrine there laid down by Lord Brougham C. cannot be relied upon. In that case a joint-stock company had been formed for the construction of a railroad called the Trevil railroad, in which five shares were stated to belong to Edward Kendall and Jonathan Kendall, their executors, administrators, and assigns, as joint tenants, and which was so declared by an indenture executed by the proprietor, dated the 16th August, 1795.

Edward Kendall and Jonathan Kendall were the lessees of the furnaces called the Beaufort Iron Works, and by the same deed, they did "for themselves, their heirs, executors, administrators, and assigns, jointly and severally covenant and agree with the then proprietors of such railroad, and their executors, administrators, and assigns, that they the said Jonathan Kendall and Edward Kendall, their executors, administrators, or assigns, should from time to time, and at all times thereafter, whilst they or any of them should be proprietors or lessees or occupiers of the said furnace and works called the Beaufort Iron Works, procure all the limestone which should be wanted for the use of the said iron works, or for any new furnace and works thereafter to be erected by them near the same from the quarry called Trevil Quarry, and should cause all such limestone to be carried from the said quarry to the said iron works, along or upon the Trevil railroad and should also cause all the ironstone or mine which they should have occasion to convey from their mine works to their furnace called the Beaufort Iron Works, or to such new furnace, to be carried along such part of the railroad as should lie between such mine works and the furnaces; and also should pay or cause to be paid to the collectors to be appointed by the proprietors of the railroad for the time being to receive the tolls for the conveyance of goods thereon, a toll of 5d. per ton per mile for all limestone, iron-stone, or mine, goods, wares, merchandises, and commodities whatever, except stone for building, and a toll of 14d. per ton per mile for all stone for building belonging to them the said Edward Kendall and Jonathan Kendall, their executors, administrators, or assigns, or any of them, which should be carried or conveyed upon the railroad or any part thereof, and so in proportion for any greater or less quantity than a ton." The lease of the Beaufort Iron Works was assigned to the defendants, who began to construct another railroad to other lime quarries; and on a bill for an injunction to restrain them from

Keppell

V.

Bailey

not to be relied upon.

using that new railroad, or any cther railroad, except the Trevil railroad, the following points were raised and contested in the course of the argument: FIRST, whether the word "assigns," used in the covenant of the Kendalls, applied to the assigns of the Beaufort Iron Works, or only to their assigns of the railroad shares. SECONDLY, whether the plaintiffs' remedy, if any, was not more properly by an action at law for damages, or by a simple bill in equity for an account, without insisting upon a compulsory performance of the covenant. Flint v. Brandon (8 Ves. 159.), Barret v. Blagrave (5 Ves. 555.). THIRDLY, whether the contract, either as it stood originally, or as it had subsequently, from the change of circumstances, become, was not of so unfair and oppressive a character that it would not be equitable to enforce it by injunction. Smith v. Fromont (2 Swan. 330.), Collins v. Plumb (16 Ves. 454.), the Duke of Bedford v. The Trustees of the British Museum (p. 552. infrà). FOURTHLY, whether the contract was not ineffectual, if not at law, at all events in equity, upon grounds of public policy, and by reason of its operating injuriously in restraint of trade. Mitchell v. Reynolds (1 P. Wms. 181.), Young v. Timmins (1 Crom. & Jer. 331.), Crutwell v. Lye (17 Ves. 335.), Jones v. Edney (3 Camp. 285.), Cooper v. Twibill (Ibid. 286. n.), Holcomb v. Hewson (2 Camp. 391.), Doe v. Reid (10 B. & Cress. 849.), Morris v. Coleman (18 Ves. 437.), Williams v. Williams (2 Swan. 253.) FIFTHLY, whether covenants like the one in question, inasmuch as they created upon the property a burden which tended to a perpetuity, and placed land in a great measure extra commercium, were deserving of encouragement or assistance in this Court. Third Report of the Real Property Commissioners, p. 54. SIXTHLY, whether the provision securing to the shareholders in the railroad a toll of 5d. a ton per mile upon the minerals conveyed being double the toll permitted to be charged upon the railways belonging to the canal company, was not a violation of the letter and spirit of the Canal Act, and a fraud upon the legislature, the Canal Company, and the public, and therefore not to be enforced by injunction. SEVENTHLY, whether the covenants entered into by the Kendalls did or did not run with the land, so that an action could be maintained upon it against their assigns. Spencer's case, antè, p.31.; Anonymous, Godb. 120.; S. C. Moore, 243.; Bally v. Wells, antè, p. 38.; Mayor of Congleton v. Pattison, post, p. 51.; Collins v. Plumb, 16 Ves. 454. ; Canham v. Rust, 8 Taunt. 227.; Hartley v. Pehall, 1 Peake's N. P. C. 131.; the Duke of Bedford v. The Trustees of the British Museum, post, p. 51.; Vyvyan v. Arthur, post, p. 49. ; Uxbridge v. Staniland, post, p. 49.; Case of the Manchester Mills, 1 Dougl. 222. n.; Holmes v. Buckley, P. Ch. 39.; Brewer v. Hill, 2 Anst. 413.; Jourdain v. Wilson, post, p. 50.; Vernon v. Smith, 5 B. & Ald. 1.; Sampson v. Easterby, 9 B. & Cress. 505.; S. C. (in error), 6 Bing. 644.; Barclay v. Raine, 1 S. & S. 449. EIGHTHLY, whether, assuming the covenant to be inoperative at law or against assigns, it might not still be held effectual here, on the ground that the notice, which, prior to their purchase, the defendants had received of the existence and nature of the covenant imposed; an obligation which bound them in conscience, and which a court of equity would not suffer them to violate. Case of the Steyne at Brighton, unreported; Furnival v. Crew, 3 Atk. 83.; Treatise of Equity, b. 1. ch. 5. s. 4. ; City of

London v. Richmond, Prec. Ch.156. ; S. C. 2 Vern. 421.; and on appeal, 1 Bro. P. C. 516. Toil. ed.; Collins v. Plumb, 16 Ves. 454.; Third Report of the Real Property Commissioners, post, p. 54; Barclay v. Raine,

ante.

LORD BROUGHAM C., upon the first point, appeared to think that it could not be invalidated on the ground of perpetuity. His Lordship said, "I do not at all doubt that the enjoyment of property may be tied up, and an illegal perpetuity created by annexing conditions to grants, or by executing covenants, whereby whoever happens to be in possession shall be restrained from using that which is the subject of the grant or covenant, in all but a certain prescribed way, provided always that the restraint so constituted is not reserved in favour of some other party who may release it at his pleasure; and, therefore, all such conditions and covenants are void if they go beyond the period allowed by law. But if the party for whom the condition is made, or the party covenantee, has the entire power of dealing with his interest in the subject-matter, it is an obvious mistake to treat this as an instance of perpetuity, or of any tendency towards perpetuity. Indeed the property, the subject-matter of consideration here, is not the estate fettered by the condition or covenant; but the benefit reserved by the condition or secured by the covenant, and upon that there is, by the hypothesis, no restraint at all. And certainly, to take another view, though one of the parties interested, the owner of the property subject to the covenant or condition, may be fast, the other is loose, and so quoad all taken together, that is quoad all interested, the property is free. Thus, admitting that the owners of an estate could no more be restrained perpetually from cultivating it by supplies derived from any but one market, or from selling its produce at any but that market, than they could be restrained from selling the estate; and admitting that the one would be as much a breach of the rule against perpetuity as the other, it would be no such violation; nor would it in any way defraud that rule if the owner of the estate were restrained from buying and selling at any market save that belonging to a certain party entitled by grant or by covenant to the privilege, and which he might at his pleasure vary or extinguish. Upon other grounds, such a restraint may be objectionable and void in law, as well as bad in policy, but certainly not upon the doctrine of perpetuity, by which it is no more struck at than a right of way or other easement, which the owners of one estate may enjoy over the close of another. Such easement continues to be enjoyed by the owner of the one estate, whoever he may be, over the other estate into whose hands soever it may come: so of a rent issuing out of an estate, and which may nearly absorb its profits; no one ever deemed this objectionable on the ground of perpetuity.

"The easement and the rent are the property in question, and they are free. The party entitled to the tenements is interested in the tenements, subject to the easement or yielding the rent; the other has the incorporeal hereditaments connected with the corporeal hereditament of the lands and the circumstance of the land being subject to his rights, while he is unfettered in the enjoyment and the disposal of those rights, does not either constitute or tend to a perpetuity. I am, therefore, clearly of opinion, that the covenant to take the lime at the Trevil works, and carry the iron by the Trevil railway, is not bad on the

ground of its tending to a perpetuity, or constituting a shift whereby the rules of law on that head may be evaded. There appears, at first, to be more weight in the objection, which was also urged, that covenants of this description are in restraint of trade. The covenant here is not contended to be in general restraint of trade, which would, beyond all doubt, make it void, in whatever way the purpose was effected; whether by promise, or bond, or without consideration. The restraint is only partial, and then the law will support it; if, to use the words of PARKER C. J., in his elaborate judgment in Mitchell v. Reynolds (1 P. Wms. 181.), in the opinion of the Court, whose office it is to determine upon the circumstances, it appears to be a just and honest contract." In that case the covenantor restrained himself from exercising his trade of a baker for five years, in the premises demised to him for that term by the same instrument; and the Court dwelt on the period of the restriction being coextensive with the term as proof of adequate consideration.

Upon the question whether the covenants were capable of running with the Beaufort Iron Works, so as to bind the defendants as assignees thereof, his Lordship said, "Assuming that the Kendalls covenanted for their assigns of the Beaufort Works, could they, by such a covenant with parties who had no relation whatever to those works, except that of having a lime quarry and a railway in the neighbourhood, bind all persons who should become owners of those works either by purchase or descent, at all times, to buy their lime at the quarry, and carry their iron on the railway: or could they do more, if the covenants should not be kept, than give the covenantees a right of action against themselves, and recourse against their heirs and executors as far as those received assets ? Consider the question first upon principle, there are certain known incidents to property and its enjoyment, among others, certain burdens wherewith it may be effected, or rights, which may be created, and enjoyed over it, by parties other than the owner, all which incidents are recognised by the law. In respect of possession the property may be in one while the reversion is in another; in respect of interest the life estate in one, the remainder in tail in a second, and the fee in reversion in a third. So in respect of enjoyment, one may have the possession and the fee-simple, and another may have a rent issuing out of it, or the tithes of its produce, or an easement as a right of way upon it, or of common over it. And such last incorporeal hereditament may be annexed to an estate which is wholly unconnected with the estate affected by the easement, although both estates were originally united in the same owner, and one of them was afterwards granted by him with the benefit, while the other was left subject to the burden. All these kinds of property, however, all these holdings, are well known to the law, and familiarly dealt with by its principles. But it must not, therefore, be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient, both to the science of the law and to the public weal, that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives, that is, their assets real and personal, to answer in damages for breach of their obligations. This tends to no mischief, and is a reasonable liberty to bestow; but great detriment