both the lessors. But a breach by the tortious entry of one of the lessors, will support an action against him alone; for where one of the lessors has actually done wrong by his entry on the lessee, without the assent of the others, the covenant in law is not to be taken to be joint, so as to charge the other lessors with this personal wrong of their companion; for it would be unreasonable that the innocent should be punished with the guilty; and therefore, as to the breach by the entry of one lessee, the action may well be brought against him alone (y). Where the covenants are joint and several by two lessees of a joint interest, it does not follow, because the interest must in its nature survive, that the covenants must be construed to run with the land: on the contrary, each is also liable on the separate covenant, which in case of his death will devolve and be binding upon his executor. In this case it would have been a particular hardship on the lessor to have had these covenants construed differently, the surviving lessee being insolvent; so that the lessor, had he been precluded from resorting to the executor of the deceased covenantor, who died in affluent circumstances, would have been entirely deprived of his rent (z). It will not be amiss in this place to notice how far a joint and several lien will affect various covenants in the same deed; and it may be laid down as (y) Ante, n. (x). (z) Enys v. Donnithorne, 2 Burr. 1190. a rule, that the first covenant in a lease, whereby the lessees covenant jointly and severally in manner following, that is to say, &c., must according to the general principles of construction, extend to all the subsequent covenants on the part of the lessees throughout the deed, unless there be something in the nature of the subject to restrain them to the former part of the lease. It is not necessary to repeat in every covenant that each of the lessees covenants for himself and his representatives; the general words introductory to the covenants are sufficient to extend to all the subsequent covenants on their part. The case (a) from which this rule is deduced was attended with circumstances of a peculiar and special nature. A lease had been granted by the Duke of Northumberland of a colliery to two lessees, who covenanted jointly and severally with the lessor in manner following, that is to say; then followed a string of covenants on the part of the lessees, that they would work the collieries in a proper manner, that they would once in every fortnight deliver an account in writing of the quantities of coals worked, &c. &c. After these followed a covenant on the Duke's part to make certain allowances for every ton of coals worked. And after a proviso respecting the sale of small or inferior coals, came the clause on which this action was brought, viz. And it was thereby further agreed that an account should be stated and settled once in every six months, and that the moneys appearing to be due should be accounted for and paid by the said lessees, their executors, &c., (without saying and each (a) Duke of Northumberland v. Errington, 5 Term Rep. 522. of them). And it was thereon contended, that the latter covenants relative to the payments were entered into in respect of the interest which the lessees were to derive under the lease; and as that was joint, it was intended by the parties that when the interest ceased, the responsibility founded on that interest should cease also. But on the above principle, and on the rule of construction that it is immaterial in what part of a deed any particular covenant is inserted, the Court gave judgment for the plaintiff. As to the construction of joint covenants in equity: It has never been determined that every joint covenant is in equity to be considered as the several covenant of each of the covenantors. When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived; but where an obligation exists independently of any instrument by which the duty may have been secured, as in the case of partnership debts, bonds, &c., the principle is different; and in such case a joint bond (and the principle extends to covenants) has in equity been considered as several, there having been a credit previously given to the different persons who have entered into the obligation. It was not the bond that first created the liability to pay. The case was (b): One of several partners died, and the partnership, as far as his interest was concerned, was determined. The surviving partners jointly entered into a covenant, on certain consi (b) Sumner v. Powell, 2 Meriv. 30. Thomas v. Frazer, 3 Ves. 399. II. With re ference to the rights of derations, to indemnify his executor from all claims in respect of the partnership. Some of the other partners having died, and the executor having been obliged to pay a large sum of money in respect of the late partnership, filed his bill claiming to be entitled to be repaid such sum out of the estates of some of the deceased partners, and contended, that the obligation, which though only joint at law, would be held in equity to be several as well as joint; and therefore binding on the estate of the deceased covenantor. But Sir William Grant, the Master of the Rolls, held, that in this case the covenant was purely matter of arbitrary convention, growing out of no antecedent liability in all or any of the covenantors to do what they had thereby undertaken; and that there was no equity that entitled the executor to demand from the other partners an engagement to that effect. They were contented, he said, to give him a covenant of indemnity, and as it was only a joint covenant that was given, he could not say that it was any thing more than a joint covenant that was meant to be given. It was not attempted to be shown that there was any mistake in drawing the deed, or that there was any agreement for a covenant of a different sort. There was nothing but the covenant itself by which its intended extent could be ascertained. His Honor, therefore, refused to give the covenant any other than its legal operation and effect, and the bill was dismissed with costs. It now becomes necessary to notice covenants, several, joint, and joint and several, as they relate covenantees. to covenantees. In considering this subject it is most important to keep in view the difference between the rights and interests acquired by covenantees, and the responsibilities imposed on covenantors, by virtue of their agreement. This distinction will be discovered to pervade, and regulate the decisions of all the cases; in the majority of which the doubt has been, how far covenantees, when there were more than one, were capable of suing separately or jointly. Some general propositions, now to be submitted, are deducible from the authorities. That the following observations are not in any way to be connected with the liabilities of covenantors, and suits instituted against them jointly or severally, but are confined to the rights and interests of covenantees and actions by them, must, it is repeated, be preserved in remembrance. First, then, it is a well settled principle, that co- 1. Several. venants shall not be construed to be joint or several from the particular language in which they may be conceived, but shall be measured and moulded according to the interests of the covenantees; and although in terms the covenant may import to be joint, yet where the interest is several, so shall the covenant be construed (c). This rule was established at a very early period, and has been fully recognised and sanctioned by all the succeeding cases to the present day. (c) James v. Emery, 8 Taunt. 245; S. C. 2 J. B. Mo. 195; 5 Price, 529. Withers v. Birch am, 3 Barnew. & Cres. 254; S.C. 5 Dow. & Ry. 106. Owston |