The lien. Covenantor. convey, an action may be maintained (e). So a covenant that terminates in itself is not properly a covenant, but a defeasance (ƒ); as a covenant by a lessee that the demise shall be void, which will have the effect of determining the lease, and will in consequence disable him from suing on the lessor's covenants. That part of a covenant which precedes and introduces the subject matter of the agreement itself, and binds or obliges the covenantor to the observance of his contract, is denominated the lien. By its aid is limited the extent to which the covenantor is willing to render himself liable. He may covenant for himself alone, or for himself and the acts of his wife; singly or severally as to some; jointly with reference to others; as far as regards his own estate or interest, or the estate or interest of another. In short these liens may be modelled and adapted to any situation, object, or combination of circumstances, however complicated (g). The party entering into the covenant is called the covenantor, and he with whom it is made, the Covenantee. Covenantee. The rule that a covenant cannot be created but (e) Kingdon v. Nottle, 4 Mau. pendix of the liens chiefly used & Selw. 53. in modern practice will, it is hoped, prove a valuable addition to this work. (f) Plowd. 138. 308, a. by deed (h) is, with two or three exceptions hereafter noticed (i), universally true; and it is equally true, that on any writing in the nature of an agreement under hand and seal, covenant will lie (k). Thus on a bond it is supportable, for it proves an agreement(); and whether the deed be an indenture or deed-poll is immaterial (m). Where the latter instrument is used, it need not of course be executed by the covenantee, although he must be named therein (n); his acceptance being such an assent to the contract as will render it binding (o); and the party must have the deed to show (p). Therefore, where in covenant the plaintiff declared that J. S. being arrested at his suit, and in the custody of the bailiff, he the defendant, in consideration that the plaintiff would order the release of J. S., promised and engaged to bring in the body of J. S. into the custody of the bailiff on such a day, on demurrer it was held that the action would not lie, the plaintiff not being named in the agreement (g). So much does the word covenant imply a deed, that there is no occasion to allege in a declaration, that the deed containing the covenant was under the defendant's seal; the circumstance of sealing must be inferred (r); and even if it be stated that the defendant covenanted, and the instrument declared on be not sufficiently shown to be a deed, the defect is cured by pleading over (s). But where the plaintiff declared, that the defendant, by a certain writing made at Westminster, under his own proper hand, granted the plaintiff an annuity, and covenanted for payment, the court were against the plaintiff on the face of his own declaration; because an action of covenant could not be supported upon this writing, unless it were a deed, and it did not appear to be a deed upon the face of the declaration, not being laid to be sealed with his seal. They also said, that its being laid with a profert hic in curia could not help it, though it should be found on production to be a deed; but they allowed, that if the plaintiff had declared that the defendant had granted this annuity per factum suum, it would have been good (t). It is proper to mention, that a deed-poll containing a covenant to insure against fire may refer to conditions in a printed paper without stamp, seal, or (r) Atkinson v. Coatsworth, I Stra. 512; S. C. 8 Mod. 33. Aldworth v. Hutchinson, Lutw. 98. Nels. fol. ed. (s) Dodd v. Atkinson, Ca. temp. Hardw. 342. (t) Moore v. Jones, 2 Stra. 814; S. C. 2 Ld. Raym. 1536 ; 1 Barnard. K. B. 62. 85. signature, and the paper shall be considered as part of the deed itself (u). An indenture not inter partes will have the operation of a deed poll, on which debt, and covenant also, may be maintained by a party not executing. A deed was drawn in the following terms: "This indenture charter-party witnesseth that Benly, master and part owner of a ship, with the consent of Cooker (the plaintiff), the other part owner, lets the ship to the defendant for a voyage;" the defendant covenanted to pay Benly such a sum as master; and covenanted with the said Benly, and likewise with Cooker, to pay Cooker 300/.; and for non-payment, Cooker brought this action of debt on the charterparty. The court were of opinion, that as this was not an indenture between parties, but only a deed poll, the party might covenant with a stranger, and also with other persons, to do several other acts, for which every one severally might bring his action (v). Had the deed been inter partes, he who was a party to the deed could not covenant with another who was no party; but where one, a mere stranger, and not named a party, (the instrument being inter partes,) covenanted with another who was named, and sealed the deed, he was held to be bound by his sealing. This distinction has been often taken (w). (u) Routledge v. Burrell, 1 H. Blac. 254. (v) Cooker v. Child, 2 Lev. 74; S. C. 3 Keb. 94. 115. Lowther v. Kelly, 8 Mod. 115. Lucke v. Lucke, Lutw. 93. Nels. fol. ed. Clement v. Henley,2 Rol. Ab. 22. Faits, (F) 2. (w) Salter v. Kidgly, Carth. 76; S. C. Holt, 210; 1 Show. Where one agreed to let a house to another at a certain rent, and a stranger covenanted on behalf of the lessee, that he (the lessee) should pay the rent, the court decided that on this deed, the defendant, although not a party, was clearly liable to an action of covenant, in consequence of his having sealed. And very recently a similar judgment was pronounced. The declaration stated that by indenture between J. Drummond and C. Drummond, in his lifetime, (whom plaintiffs survived,) of the first part, the dowager baroness Southampton, then guardian of Charles Lord Southampton, (plaintiff,) of the second part, and the defendant, and one G. R. of the third part, J. D. and C. D., since deceased, with the assent of Lady Southampton, did demise to defendant and G. R. certain premises therein mentioned; habendum for twenty-one years; reddendum unto the said Charles Lord Southampton and the heirs male of his body, and for default of such issue, unto such other person or persons as for the time being should be entitled to the remainder or reversion of the same premises, expectant on the determination of the said demise, during the residue of the said term, a certain yearly rent; and defendant and G. R. severally covenanted and agreed with 58. East Skidmore v. Vaudstevan, Cro. Eliz. 56; S. C. nom. Scudamore v. Vaudenstene, 2 Inst. 673; 2 Rol. Ab. 22. Faits, (F) 1. Storer v. Gordon, 3 Mau. & Selw. 322. Metcalfe v. Rycroft, 6 Mau. & Selw. 75. Berkeley v. Hardy, 5 Barn. & Cres. 355; S. C. 8 Dow. & Ry. 102. Barford v. Stuckey, 5 J. B. Mo. 22; S. C. 2 Brod. & Bing. 333; 1 Bing. 225. |