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to public policy that a man should be allowed to evade engagements into which he has entered."-Mariborough (Lily Duchess of) v. Marlborough (Duke of), [1901] 1 Ch. 165, at p. 172; 70 L. J. Ch. 244, at p. 249, Vaughan Williams, L. J.

"The phrase most frequently used in argument was 'public policy'; but, following the example of many eminent judges, I prefer the policy of the law.""-In re Hope Johnstone, [1904] 1 Ch. 470, at p. 474; 73 L. J. Ch. 321, at p. 322, Kekewich, J.

"Performing" Covenants.

"The original dictum of Lord Coke [Co. Litt. 303 b] is no doubt by a very high authority, but it is in terms limited to the mode of alleging performance of covenants in pleading. He says that a man is bound to 'perform' all his covenants, but in pleading he must plead specially with regard to negative covenants; and it is worthy of observation that in that very sentence he uses the word 'perform' in the general sense of giving effect to the obligation created by a covenant, whether affirmative or negative. The difficulty in these cases appears to me to have arisen from a confusion of the obligation accepted with the mode of performing it. When one speaks of 'performing' a covenant, it is in the sense of fulfilling the duty created by it, whether to do or to abstain from doing a thing. The word 'perform' is, no doubt, inapplicable to not doing a thing, but the obligation to abstain from doing something may, I think, be said to be performed' by not doing it. If a man promises not to do a thing he fulfils his obligation, or, in other words, 'performs' his contract, if he abstains from doing it.”—Harman v. Ainslie, [1904] 1 K. B. 698, at pp. 704, 705; 73 L. J. K. B. 589, at p. 542, Collins, M. R.

"It may be admitted that the word 'perform' may, in ordinary cases, be said to be more specially appropriate to positive covenants. But it cannot, I think, be laid down, as a hard and fast rule, that it is inappropriate, when applied at any rate to some negative covenants. I agree with the Master of the Rolls [Collins] that, speaking broadly, it may properly be said, as Martin, B., said in Croft v. Lumley (1858), 6 H. L. C. 672, at p. 719; 27 L. J. Q. B. 321, at p. 336, that there is not any inaccuracy in language in saying that a man has performed his covenant, when he has not done what he covenanted not to do, or that he made default in performing his covenant, when he has done it.' After what the

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Master of the Rolls has said, I do not intend to go through the various cases on the subject and the dicta contained in them. All I need say is that the result of them appears to me to be that we are not bound to hold, and that it would not be right to hold, as a general rule of construction, that, in clauses of re-entry, the word 'perform' must be construed as excluding all covenants by the lessee which may be called negative covenants."-Ibid., at p. 710; L. J. at p. 545, Romer, L. J.

"It is difficult to define a negative covenant, for it is clear that many so-called negative covenants readily assume a positive and affirmative aspect for some purposes."—Ibid., at p. 712; L. J. at p. 546, Mathew, L. J.

(See post, "Wills," "Conditions.")

Restrictive Clauses-Extension of.

"If a restrictive clause be in the first or last part of a sentence, or at the beginning of the first or at the end of the last sentence, which in good sense may be applied to the one and the other, then it shall extend to both sentences; but otherwise it is if such. sentence be placed in the middle of one or two sentences." Gainsford v. Griffith (1678), 1 Saund. 60 a.

"Where any sentence contains distinct covenants, and there are words of restriction either in the prefatory or concluding part, those words must be extended to every part of the sentence, unless the intention of the parties appears to require a contrary construction. This is laid down in 1 Saund. 60."-Browning v. Wright (1799), 2 Bos. & P. 13, at p. 27, Heath, J.

Affirmative and Negative Covenants-"Performing.

The word "perform" is more specially appropriate to affirmative covenants than it is to negative covenants.

"A man is bound to perform all the covenants in an indenture; if all the covenants be in the affirmative, he may generally plead performance of all; but, if any be in the negative, to so many he must plead specially (for a negative cannot be performed), and to the rest generally."-Co. Litt. 303 b.

Partly Affirmative and partly Negative.

"Whether you regard it (the restrictive covenant) as an affirmative covenant with a negative element in it, or whether you regard

it as split up, as it is here, into these two parts, partly affirmative and partly negative, that negative part can be properly enforced." -Clegg v. Hands (1890), 44 Ch. D. 503, at p. 522; 59 L. J. Ch. 477, at p. 484, Lindley, L. J.

Covenants Real and Personal-Defined.

Covenantsare distinguished also into real and personal; real when they pass lands, or are annexed to and run with land; personal when they attach upon or run in the personalty, and charge or benefit some person in particular. Personal covenants, again, may be distinguished into such as are transitive or intransitive; intransitive, when the duty of performing them is limited to the covenantor himself; transitive, when it passes to his representatives."-2 Bac. Abr. Covenant.

"Covenants are also divided into real and personal. Covenants real are those which have for their object land or other real property, or something annexed thereto or connected therewith, and which run with the land, so that he which hath the land hath the benefit, or is subject to the burden of the covenants. Covenants personal are those which do not run with the land, but of which the benefit or the burden goes with some particular person."1 Dav., 5th ed., p. 88.

Joint and Several Covenants.

No particular words are necessary to constitute a joint or a several

covenant.

A covenant will be interpreted to be joint or several according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction.

If the interest be joint, the action must be joint, although the words of the covenant be several.

If the interest be several, the action will be several, although the words of the covenant be primâ facie joint.

"But the implication or construction of law, when the words are ambiguous, or are left to the interpretation of law, will be, that the words have an import corresponding to the interest, so as to be joint when the interest is joint, and several when the interest is several; notwithstanding language which, under different cir

cumstances, would give to the covenant a different effect."—1 Wms. Saund. ed. 1871, pp. 165, 166.

"The principle is well known, and fully established, that if the interest be joint, the action must be joint, although the words of the covenant be several; and if the interest be several, the covenant will be several, although the terms of it be joint."-James v. Emery (1818), 8 Taunt. 245, at p. 248; 2 Moore, 195, at p. 203, Gibbs, C. J.

"I think the correct rule is laid down by Gibbs, C. J., in James v. Emery [(1818), 8 Taunt. 245], with the qualification stated by Mr. Preston, in the note in Sheppard's Touchstone, p. 166. That rule is, that a covenant will be construed to be joint or several according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint. Suppose there were a covenant with A. and B. jointly that a certain thing should be done by the covenantor, both of those persons must sue. But where it appears upon the face of the deed that A. and B. have several interests, they must sue separately; for though the words be primâ facie joint, they will be construed to be several, if the interest of either party appearing upon the face of the deed shall require that construction. That I take to be the true rule."-Sorsbie v. Park (1843), 12 M. & W. 146, at p. 158; 13 L. J. Ex. 9, at p. 11, Parke, B. (cited and followed by Cotton, L. J., in Palmer v. Mallett (1887), 36 Ch. D. 411, at p. 421; 57 L. J. Ch. 226, at p. 268).

"There is no occasion to refer to the cases relating to the rule of construction as to covenants being joint or several according to the interest of the parties, which is perfectly well established. In the case of Sorshie v. Park [(1843), 12 M. & W. 146; 13 L. J. Ex. 9], Lord Abinger and myself, on referring to the established rule as laid down by Lord Chief Justice Giubs in the case of James v. Emery [(1818),8 Taunt. 245; 2 Moore, 195], approved Mr. Preston's qualification and explanation of it in his edition of the Touchstone, p. 166, namely, that if the language of the covenant was capable of being so construed, it was to be taken to be joint or several according to the interest of the parties to it. Mr. Preston adds, that the general rule proposed by Sir Vicary Gibbs, and to be found in several books, would establish that there was a rule of law too powerful to be controlled by any intention, however express; and I consider such qualification to be perfectly correct, and at variance with no

decided case, as it is surely as competent for a person, by express joint words, strong enough to make a joint covenant, to do one thing for the benefit of one of the covenantees, and another for the benefit of another, as it is to make a joint demise where it is for the benefit of one."-Bradburne v. Botfield (1845), 14 M. & W. 559, at p. 572; 14 L. J. Ex. 330, at pp. 332-3, Parke, B., delivering the judgment of the Court.

"The rule that covenants are to be construed according to the interest of the parties is a rule of construction merely, and it cannot be supposed that such a rule was ever laid down as could prevent parties, whatever words they might use, from covenanting in a different manner. It is impossible to say that parties may not, if they please, use joint words, so as to express a joint covenant, and thereby to exclude a several covenant, and that, because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interest of the parties which they intended to protect, and construe the words according to that interest."-Keightley v. Watson (1849), 3 Ex. 716, at p. 722; 18 L. J. Ex. 339, at p. 341, Parke, B.

"The late Mr. Platt, on page 117 of his work on Covenants, published more than half a century ago, puts the proposition in words that have never been questioned, as far as I am aware, since his time. With respect to the form he says: No particular words are necessary to constitute a covenant of either kind' (that is to say, either joint or several). If two covenant generally for themselves, without any words of severance, or that they or one of them shall do such a thing, a joint charge is created; which shows the necessity of adding words of severalty where the covenantor's liability is to be confined to his own acts.' See May v. Woodward (1677), Freem. 248; Robinson v. Walker (1694), 1 Salk. 393.”— White v. Tyndall (1888), 13 App. Cas. 263, at p. 269; 57 L. J. P. C. 114, at p. 116, Lord Halsbury, L. C.

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"The Court said that it was impossible to contend that where one covenants for another he is not to be bound by it; the covenant being in his own name for himself, his heirs,' &c. There was nothing unusual or inconsistent in the nature of the thing

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