CHAPTER THE SECOND. OF THE SEVERAL KINDS OF COVENANTS. SECT. I. OF AFFIRMATIVE-NEGATIVE-EXECUTED-EXE- WITH regard to their several kinds, covenants admit of a variety of divisions. They are either in the affirmative, that something is already performed or Affirmative. shall be performed hereafter; or in the negative, that Negative. the party hath not performed or will not perform a certain act; as that he hath not done, nor will do any act to incumber. A covenant of the first kind will not deprive a man of a right lawfully enjoyed by him independently of the covenant; as if the lessor agree with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff. Here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedgebote without assignment; but had the words been in the negative, that he should not take thorns without assignment, or that he should take by as signment and not otherwise, the case would be materially altered (t). A negative covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. Therefore, where a tailor assigned his trade to the defendant, and covenanted thenceforth to desist from carrying on the same business with any of the customers, and the defendant, in consideration of the performance thereof, covenanted to pay him a life annuity of 1007., it was held, that if the words in consideration of the performance thereof should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because, as at any time during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not (u). The defendant, however, on a breach by the plaintiff, might have his remedy by a cross action of covenant (v). There is a difference also between a negative covenant which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. covenant by a person to sail from the river Thames to a certain place in Spain, the words of the cove (t) Anon. Dy. 19, b. pl. (115). Shelley, J. dissent. 1 Leon. 251. (u) Hunlocke, or Humlock, v. Blacklowe, 2 Saund. 156; S. C. A 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. (v) Ibid. nant being, quòd decederet, procederet, et non deviaret, is of the latter description; for unless restrained by the negative covenant, quòd non deviaret, which is additional, he might have departed and proceeded, and have gone to Africa or the West Indies (w). To a covenant of the former class a plea of performance generally is good; but not to the latter; the defendant in that case must plead specially (v). Executed. Where the covenant relates to an act already done it is usually termed a covenant executed; and, ere- Executory. cutory, where the performance is future (y). Between covenants obligatory, and covenants de- Obligatory. claratory, there is this difference. The latter serve Declaratory. to limit and direct uses; but the former, as that the party shall enjoy free from incumbrances, shall never be construed to raise an use, because they have another effect (≈). ative. Some covenants are framed in the disjunctive or Disjunctive alternative, giving the covenantor the choice of doing, or the covenantee the choice of having performed, one of two or more things at election; as a covenant to make a lease to J. S., or to pay him 1007. at Michaelmas, as the covenantor, or, as the case may be, the covenantee shall prefer. The rule in these cases seems to be, that the party for whose benefit (w) Laughwell v. Palmer, 1 Sid. 87; S. C. nom. Lathwell v. Fisher, or Palmer, 1 Keb. 334. (x) Ibid. (y) Shep. Touch. 161. the alternative arises must do the first act, by determining his election. Therefore, where one Kerne covenanted to pay to Morris, his executors, &c. at the choice and election of Morris, within a month after the death of Lady Kerne, thirty pounds or twenty kine, it was decided, that the defendant might plead in bar the plaintiff's neglect to make his election within the month, as the covenantor was not obliged to tender both money and kine (a). But where the covenant was to deliver to the plaintiff at such a day and place twenty pounds or ten kine at the then choice of the covenantee, the court were clearly of opinion, that the defendant in pleading performance ought to show a tender to the plaintiff as well of the twenty pounds as the ten kine, and for default thereof judgment was given against the defendant (b). So where one engaged to make such further assurance within such a time, by fine or feoffment, as the covenantee should choose, it was held to be incumbent on him to elect which of the assurances he would have (c). The defendant in another case agreed to come over to England, in order to dance ballets at the Italian Opera in the Haymarket, or at such other place as the plaintiff should appoint. The defendant never came. No license had been obtained from the Lord Chamberlain for the Opera House, (a) Basset v. Kerne, 1 Leon. 69; S. C. Mo. 241. (b) Fordley's case, 1 Leon. 68. (c) Basset v. Kerne, 1 Leon. 70. nor had any other place been appointed by the plaintiff; the court therefore decided, that the defendant could not perform at the Opera for want of the license, and that he was not liable to an action for not going elsewhere, in consequence of the plaintiff's neglect to furnish him with notice to dance at any other place (d). In like manner, on a covenant to do a specific act, or an act to be appointed by a third party, if the latter be chosen, the duty of procuring the appointment falls on the covenantor. Accordingly where the defendant, the lessee of a mill, covenanted to leave the mill-stones in as good condition as he found them, or to pay to the plaintiff so much as they should be damnified, the damage to be estimated by A. and B. who viewed them when the defendant entered upon the premises, and the plaintiff assigned for a breach that the defendant had left the mill-stones damnified, and had not made satisfaction to the plaintiff, and the defendant pleaded that A. and B. had not estimated the damage, the court were of opinion, that since the latter part of this disjunctive covenant was for the safety of the defendant, it belonged to him to procure this estimation, or otherwise he should be liable. If the estimation had been to be made by such persons as the covenantee should appoint, and he had refused to appoint, that would have excused the defendant, because the performance of the cove (d) Gallini v. Laborie, 5 Term Rep. 242. |