covenant for quiet enjoyment from the word "demise " may be rebutted by an express covenant for quiet enjoyment, even if it be restricted; Nokes's Case, 4 Rep. 80; Line v. Stephenson, 4 Bing. N. C. 678; S. C., 5 Bing. N. C. 183; 6 Sco. 447; 7 Sco. 69; Merrill v. Frame, 4 Taunt. 329; Stannard v. Forbes, See Nokes's Case, discussed Proctor

[* 425 ] 6 * Ad. & El. 572.

v. Johnson, 1 Buls. 2; S. C., 2 Brownl. 212; Cro. El. 809; Cro. Jac. 233; Yelv. 175. See 2 Platt on Leases, 285.

"So grant."-The implication of a covenant from the word "grant was rebutted by an express covenant in Clarke v. Samson, 1 Ves. Sen. 100.

Contract to repair.-No implied contract to repair arises out of the relation of landlord and tenant, where the tenant holds under an express contract which provides for the very matter; per Lord Denman, C. J., Standen v. Chrismas, 10 Q. B. at p. 141. See Woodfall, L. & T. (12th ed.) 569.

Rule 153.-Agreement for deed containing covenants.-An agreement under seal to execute a deed which ought to contain certain covenants, operates as a covenant to perform such covenants.

Examples.-A., being indebted to B., on simple contract, executed a deed whereby he charged certain property with the payment of the debt, and agreed to execute such a mortgage of the property, with "all powers, covenants, and clauses incidental thereto, as B. should require; held, that the debt was converted into a specialty, on the ground that the mortgage would contain a covenant for the payment of the debt; Saunders v. Milsome, L. R. 2Eq. 573.

Agreement by deed to execute a lease which should contain a covenant to keep the premises in good and substantial repair, and all other usual covenants, and the lessee covenanted to accept the lease and execute a counterpart; held, in an action by the lessor, that sums due for arrears of rent and dilapidations were specialty debts; Kidd v. Boone, L. R. 12 Eq. 89.

It follows from Rule 21 (p. 93) that :

Rule 154.-Construction against the covenantor.— [* 426] Ambiguous words in a covenant are to be taken most strongly against the covenantor; Fowle v. Welsh, 1 B.

& C. at p. 35.

See also Barton v. Fitzgerald, 15 East, 530; Webb v. Plummer, 2 B. & Ald. 746; Barrett v. Bedford, 8 T. R. 602; per Bayley, J., Shrewsbury v. Gould, 2 B. & Ald. at p. 487; per Willes, J., Rubery v. Jervoise, 1 T. R. at p. 234; per Le Blanc and Bayley, J.J.,

Love v. Pares, 13 East, at pp. 85, 86; Warde v. Warde, 16 Beav. 103. But this rule "must be qualified by the observation that a due regard must be paid to the intention of the parties as collected from the whole context of the instrument; per Lord Eldon, C. J., Browning v. Wright, 2 Bos. & P. at p. 22. See also per Lord Ellenborough, C. J., Sicklemore v. Thistleton, 6 M. & S. at p. 12.

Rule 155.—" It is hereby agreed and declared" (c).—Where, in a clause commencing "it is hereby agreed and declared," it is stated that a person is to do a thing, he alone is bound to do it.

"It appears to me that in effect the words 'it is hereby agreed and declared' operate thus they operate to show that what is comprised in the clause of which these words are the commencement, is what all parties intend and agree shall be done; and whatever you find in the clause is agreed to be done by any given party, it is an agreement that that party is to do it; but the party who is to do the thing is the person who is alone bound to per- · form that agreement;" per Kindersley, V.-C., Ramsden v. Smith, 2 Drew. 307, 308. See also Pordage v. Cole, 1 Wms. Saund. 319 (ed. 1871, vol. 1, p. 548); Wood v. Copper Miners, 7 C. B. 906; Willoughby v. Middleton, 2 J. & H. 344. See also per Jessel, M. R., Dawes v. Tredwell, 18 Ch. D. at p. 359.

Where a person by deed "declares" that he will do a thing, it amounts to a covenant by him to do it; Richardson v. Jenkins, 1 Drew. 477 (see 482, 483).

* Rule 156.--Exception to covenant.--An exception [* 427 ] to an absolute covenant is construed strictly.

Example. - Where a tenant in tail, with reversion in the Queen, covenanted against the acts of persons except the Queen, her heirs or successors, existentibus regibus vel reginis Angliæ, an eviction by a patentee of the Queen was held to be a breach of the covenant; Woodroff v. Greenwood, Cro. Eliz. 518.

Rule 158.-Proviso limiting liability in covenant.-If there is a personal covenant, followed by a proviso that the covenantor is not to be liable under the covenant, the proviso is repugnant and void; but where the proviso limits the personal liability under the covenant, without destroying it, the proviso is valid; Furnivall v. Coombes, 5 Man. & Gr. 736; S. C. 6 Scott, N. R. 522 (see per Keating, J., L. R. 2 C. P. 186); Williams v. Hathaway, 6 Ch. D. See Pollock on Contr. (3rd ed.), 119, n. (c); Addison on

544.

(c) See post, chapter on COVENANTS TO SETTLE, at p. 501.

Contr. (8th ed.), 185 (citing Re State Fire Insurance Co., 32 L. J. Ch. 300), a case of a bill of exchange.

And "no evidence could exclude personal liability in the defendants, if the written document itself makes them liable; " per Byles, J., Kelner v. Baxter, L. R. 2 C. P. 182.

Effect of Penalty.

"There is a difference between covenants in general and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election; he may either bring an action of debt for the penalty and recover the penalty (after which recovery of the penalty he cannot resort to the covenant, because the penalty is to be a satisfaction for the whole); or if he does not [* 428] choose to go upon the penalty he may proceed upon the covenant and recover more or less than the penalty toties quoties; per Lord Mansfield, C. J., Lowe v. Peers, 4 Burr. at p. 2228.

*

Penalty or Damages.

Rule 159.--Penalty or damages, question of construction.-The question whether a sum named to be paid on non-performance of a covenant is a penalty, or liquidated damages, depends on the construction of the whole deed.

See 1 Swanst. Rep. 318, note; 2 Wh. & Tud. L. C. Eq. (5th ed.), 1123 et seq. See Mayne on Damages, 4th edit., p. 136, where it is said that "it is a question of law to be decided by the Judge on the construction of the whole instrument," citing Sainter v. Ferguson, 7 C. B. 727.

The use of the words "liquidated damages" or "penalty" in describing the nature of the payment, is not conclusive; Gerrard v. O'Reilly, 3 Dr. & War. 414; Kemble v. Farren, 6 Bing. 141; Betts v. Burch, 4 H. & N. 506; and per Fry, J., Wallis v. Smith, 21 Ch. D. at p. 249; Dimeck v. Corlett, 12 Moore, P. C. C. 199: and cases cited Kerr, Inj. 410; 2 Wh. & Tud. L. C. Eq. (5th ed.), 1127; Fry, Sp. Perf. 55.

Sometimes the sum is stated to be " a penalty to be recovered as liquidated damages: " Davies v. Penton, 6 B. & C. 216; Boys v. Ancell, 5 Bing. N. C. 390 (case of an instrument not under seal); Legg v. Harlock, 12 Q. B. 1015; or is called "penalty and "liquidated damages" in the same sentence: but this does not affect the construction.

Observation.--Difference as to amount recoverable.—Where the covenantee sues for compensation for breach of such a covenant, (1) if the sum named is held to be a penalty he will recover

such damages, be they more or less than the amount of the penalty, as he has actually sustained, 8 & 9 Will. 3, c. 11, s. 8; but (2) if the sum named is held to be liquidated damages, he will recover that sum without reference to the damages actually sustained, as in this case the parties have themselves assessed the damages; see Gainsford v. Griffith, 1 Wms. Saund. 51 (edit. 1871, vol. i. p. 67).

* Rule 160.—Same sum payable on breach of every [ * 429 ] covenant whether important or not.--Where there are

covenants to do a number of things, and one and the same sum is made payable on breach of any one covenant, whether import. ant or unimportant, then the sum will be regarded as a penalty; 1 Wms. Saund. 58, n. (d), (ed. 1871, vol. i., p. 72). Lea v. Whitaker, L. R. 8 C. P. 70; Magee v. Lavell, L. R. 9 C. P. 107; Re Newman, 4 Ch. D. 724; Browne v. Phillips, 10 L. R. Ir. 212; but consider Wallis v. Smith, 21 Ch. D. 243. See Mayne on Damages, 4th edit., p. 145.

Examples (1).-Where the stated sum was held to be liquidated damages.-Rolfe v. Peterson, 2 Br. P. C. 436; Lowe v. Peers, 4 Burr. 2225; Fletcher v. Dycke, 2 T. R. 32; Reilly v. Jones, 1 Bing. 302; S. C., 8 Moo. 244; Leighton v. Wales, 3 M. & W. 545; Green v. Price, 13 M. & W. 695; S. C., 16 M. & W. 346; Galesworthy v. Strutt, 1 Ex. 659; Atkyns v. Kinnier, 4 Ex. 776; Sainter v. Ferguson, 7 C. B. 716; Mercer v. Irving, El. Bl. & El. 563; Reynolds v. Bridge, 6 El. & Bl. 528; Sparrow v. Paris, 7 H. & N. 594; Crux v. Aldred, 14 W. R. 656; Hinton v. Sparkes, L. R. 3 C. P. 161; Catten v. Bennett, 51 L. T. 70; Lea v. Whitaker, L. R. 8 C. P. 70; Wallis v. Smith, 21 Ch. D. 243; Mexborough v. Wood, 47 L. T. 516.

Examples (2). Where the stated sum was held to be a penalty.-Hardy v. Martin, 1 Br. C. C. 419 (note); S. C., 1 Cox, 26; see the comments of Lord Eldon, C. J., 2 Bos. & P. at p. 352; Astley v. Weldon, 2 Bos. & P. 346; Smith v. Dickenson, 3 Bos. & P. 630; Sloman v. Walter, 1 Br. Ch. 418; Harrison v. Wright, 13 East, 343; Davies v. Penton, 6 B. & C. 216; Charrington v. Laing, 6 Bing. 242; Kemble v. Farren, 6 Bing. 141; Boys v. Ancell, 7 Scott, 364; 5 Bing. N. C. 390: Horner v Flintoff, 9 M. & W. 678; Betts v. Burch, 4 H. & N. 506; Reindell v. Shell, 4 C. B. N. S. 97; Magee v. Lavell, L. R. 9 C. P. 107; Browne v. Phillips, 10 L. R. Ir. (Ex. D.) 212; Re Newman, 4 [* 430] Ch. D. 725.

Exception. The Rule does not apply if the contract specify the particular stipulation or stipulations to which the liquidated

26 INTERPRETATION OF DEEDS.

401

damages are to be referred; per Tindal, C. J., Kemble v. Farren, 6 Bing. 147.

Specific Performance.

Covenant with penalty, or liquidated damages. —A question sometimes arises whether a covenant to do or not to do a particular act, subject to a penalty or liquidated damages for omitting or doing it, is to be construed as a covenant to do or not to do that act, or only as a covenant that, if the act be omitted or be done as the case may be, the penalty or liquidated damages shall be paid; in other words, whether you can obtain specific performance or an injunction to enforce or prevent the doing of the act, or only recover the penalty, or liquidated damages, if it be omitted or done. See the subject discussed in Fry on Specific Performance, Chap. 3, pp. 52 et seq. (2nd ed.); where it is said (§ 115): "The question always is, What is the contract? is it that one certain act shall be done, with a sum annexed whether by way of penalty or damages to secure the performance of this very act? or is it that one of the things shall be done at the election of the party who has to perform the contract, namely, the performance of the act or the payment of the sum of money?" See also Joyce on Doctrine and Principle of Injunctions, 86 et seq.; Kerr on Injunctions (2nd ed.), 409 et seq.

Rule 161.--When a covenant the observance of which is secured by a penalty must be performed specifically.—If there be a covenant with a penalty or liquidated damages to be paid on breach of the covenant, the covenant is not to be broken; but if

*

there be a covenant, with a provision that it is not to be [* 431 ] broken unless on payment of a penalty or damages, the covenant may be broken on payment of the penalty or damages; Fry on Specific Performance (2nd ed.) 52 et seq.

"There are three classes of covenants: First, covenants not to do particular acts, with a penalty for doing them, which are within the statute 8 & 9 Will. 3, c. 11 (d); secondly, covenants not to do an act, with liquidated damages to be paid if the act is done, which are not within the statute; and thirdly, covenants that an act shall not be done unless subject to a certain payment;" per Bramwell, B., Legh v. Lillie, 6 H. & N. at p. 171.

"The declaration sets out a covenant by the defendant that he will not sell or carry away from the demised premises any manure, &c., without the consent in writing of the plaintiff, under the increased rent of £10 for every ton so carried away. Now there

(d) I.e., the damages for breach must be determined by the jury.