before Lord Mansfield, at the sittings for Middlesex, in last Hilary (Term: 1. That, in point of law, a person holding of the first lessee, by an under-lease, like the present, is not liable to be sued by the original lessor, on the covenant for rent contained in the original lease; 2. That the fact put in issue on the record, viz., that all the estate, &c., of Saunders, came to the defendant, was not proved.

A verdict was found for the plaintiff, but Lord Mansfield saved the points made by the defendant's counsel, for the opinion of the court. Accordingly, in Hilary Term (Thursday, the 4th of February), Davenport obtained a rule to show cause why the verdict should not be set aside, and a nonsuit entered. He cited Poultney v. Holmes, M. 7 G. 3, at N. Pr. before Pratt, Ch. Just., 1 Str. 405; Crusoe v. Bugby, C. B. T. 11 G. 3; 3 Wils. 234; since reported 2 Blackst. 766; and Hare v. Cator, B. R. E. 18 G. 3.

Cause was shown on the Thursday following (the 11th of February). The Solicitor-General, for the plaintiff.

Dunning and Davenport, for the defendant.

LORD MANSFIELD. It is fit that we should look into the authorities; therefore let the case stand over.

The court were understood to be for some time divided, and judg ment was not given till this day [May 8, 1779], when Lord Mansfield delivered their unanimous opinion, as follows:

LORD MANSFIELD. This is an action of covenant by a lessor against an under-lessee, and the single question is, whether the action can be maintained against him, as being, substantially, an assignee. For some time we had great doubts; we have bestowed a great deal of consideration on the subject, and looked fully into the books, and it is clearly settled (and is agreeable to the text of Littleton), that the action cannot be maintained, unless against an assignee of the whole term. The rule made absolute.1

DECLARATION in covenant, stating that one, William Mills, was possessed of a term of years, and that by indenture, dated 22d September, 1770, between W. Mills and plaintiff, W. Mills demised certain premises to plaintiff, habendum for fourteen years; and among other covenants in the lease, the declaration set forth the following one: that at the end or expiration, or other sooner determination of the said demise, a fair valuation and appraisement should be made by two indifferent persons (one to be chosen by each of the parties to the said indenture, or their

1 See Beardman v. Wilson, L. R. 4 C. P. 57.

respective executors, administrators, or assigns) of all and every the fruit-trees and bushes that should be then standing and growing, and which should have been planted and set by the said plaintiff, his executors, administrators, or assigns, upon the said demised premises, and that he the said plaintiff, his executors, administrators, or assigns, should yield and deliver up the same trees and bushes to the said William Mills, his executors, administrators, or assigns, at the value or appraisement thereof to be made and fixed as aforesaid; and the said

saidhene been

as good if "assigur"

William Mills, for himself, his executors and administrators, did by the Flis would said indenture, &c. (among other things), covenant to and with the said plaintiff, his executors, administrators, and assigns, that he the said William Mills, his executors or administrators, should and would well and truly pay, or cause to be paid to the said plaintiff, his executors, administrators, or assigns, immediately after such valuation or appraisement should be made by two indifferent persons, as aforesaid, all such sum or sums of money for such trees and bushes as the same trees and bushes should be valued or appraised at. The declaration then alleged plaintiff's entry, and that all the said William Mills's interest in the premises, before the expiration of the term, became vested in the defendants; and then a breach of the said covenant by the defendants as assignees. Demurrer and joinder in demurrer.

Clayton, for the defendant.
Wood, contra.

had been

the put inter

PER CURIAM. The plaintiff is not without remedy; he may bring an action against the original lessor, who always remains liable; but his right of action for a breach of this covenant cannot be extended to an assignee without his being named in the covenant, as the subject matter of it does not relate to a thing in esse at the time of the demise. The court recognized the authority of Spencer's Case.

Judgment for defendant.

TATEM v. CHAPLIN.

KING'S BENCH. 1793.

[Reported 2 H. Bl. 133.]

THIS was an action of covenant, brought by the lessor of a farm, against the assignee of the lessee, for the breach of the following covenant: "And the said Samuel Norfolk (the lessee) for himself, his executors and administrators, did covenant, promise, and agree, to and with the said George Tatem (the lessor), his heirs and assigns, that he the said Samuel Norfolk, his executors and administrators, should and would constantly during that demise, with his and their family and servants, reside, inhabit and dwell in and upon the said demised messuage or tenement, farm, and lands, and in default thereof, would pay or cause to be paid to the said George Tatem, his heirs or assigns, the

sum of five pounds of lawful money of Great Britain, as a penalty for every month he or they did not or should not reside, inhabit, or dwell in and upon the said demised premises, over and above the yearly rent then and there reserved," &c.

The breach assigned was, "that the said Richard Chaplin (the assignee) after the said assignment of the said demised premises to the said Richard, and during his possession thereof, to wit, from the 9th day of May in the year of our Lord 1790, to the day of filing the original writ of the said George, hath not, nor did during such time as aforesaid, with himself, his family and servants, reside, inhabit, and dwell, nor does he now reside, inhabit, and dwell in and upon the said demised messuage or tenement, farm or lands, but on the contrary hath totally absented himself with his family and servants from the same, for a long space of time, to wit, for the space of two years and three months, yet the said Richard Chaplin hath not paid or caused to be paid to the said George Tatem the sum of £5 of lawful money of Great Britain, as a penalty for each and every month he the said Richard Chaplin with his family and servants as aforesaid, have not resided, inhabited, and dwelt in and upon the said demised premises, over and above the yearly rent so then and there reserved, or any part thereof, but hath therein wholly failed and made default, contrary to the form and effect of the aforesaid covenant of the said Samuel Norfolk, so made with the said George Tatem in that behalf as aforesaid," &c. To this there was a general demurrer.

There were also issues joined on the breaches of other covenants.
Runnington, Serjt., in support of the demurrer.

Bond, Serjt., contra.

The COURT said, though the deed was very ill drawn, they were clearly of opinion, that the covenant in question was quodam modo annexed and appurtenant to the thing demised, according to the first and sixth resolutions in Spencer's Case, which were directly in point, and therefore that the assignee was bound, though he was not named.

Judgment for the plaintiff.

CONGLETON v. PATTISON.

KING'S BENCH. 1808.

[Reported 10 East, 130.]

THE plaintiffs declared in covenant upon an indenture, made the 23d November, 1752, whereby they demised to John Clayton a piece of ground in Congleton called the Byflatt, and a certain slip of land," through which a watercourse was intended to be made, with liberty for making and repairing the same, and with liberty for Clayton, his executors, administrators, or assigns, to erect in the Byflatt a silk-mill, &c., habendum the said piece of ground and premises, &c., to Clayton, his

executors, administrators, and assigns, for three hundred years from the date of the indenture; yielding and paying as therein mentioned. And Clayton covenanted for himself, his executors, administrators, and assigns, with the corporation, that he, his executors, &c., would at all times during the term, before any persons should be received as servants, workmen, or apprentices, in such silk-mill, give notice of their names to the town clerk of the borough for the time being; and if he should immediately give satisfactory information to Clayton, his executors, &c., or to the then owner or occupier of the silk-mill, that any of the persons in such notice were legally settled in any other parish or township, and not in Congleton, then they should not be received to work in the business of such silk-mill, before a certificate of the settlement of such person under the Stat. 8 & 9 W. 3 c. 30, should be given to Congleton. The declaration then stated the entry of J. Clayton, and the building of the silk-mill; and that on the 1st of January, 1790, all the estate and interest, &c., of J. Clayton in the premises duly came to and vested in the defendants by assignment, by virtue of which they entered and were possessed, &c.: and then assigned as a breach, that after the defendants became so possessed, and while they were working the silk-mill, and during the continuance of the term, they received divers persons as servants, workmen, and apprentices to work in the said mill, without giving the previous notice before mentioned to the town clerk of Congleton, and that the persons so received worked in the said mill without any such notice, and that they had not previously gained any settlement in Congleton; by reason of which the township of Congleton had become liable to relieve them and their families, and had expended a large sum in the same, and continued liable to the burden, &c.; and that the plaintiffs had also incurred great expense in the premises, and their estate and property in the township had been lessened in value.

The defendants, after craving oyer of the indenture, by which it appeared further, that the term was granted by the corporation in consideration of £80 paid, and of a nominal yearly rent, demurred generally to the declaration.

Littledale, in support of the demurrer.

Richardson, contra.

LORD ELLENBOROUGH, C. J. This is a covenant in which the assignee is specifically named; and though it were for a thing not in esse at the time, yet being specifically named, it would bind him if it affected the nature, quality, or value of the thing demised, independently of collateral circumstances; or if it affected the mode of enjoying it. But this covenant does not affect the thing demised, in the one way or the other. It may indeed collaterally affect the lessors as to other lands they may have in possession in the same parish, by increasing the poor's rate upon them; but it cannot affect them even collaterally in respect of the demised premises during the term. How then can it affect the nature, quality, or value of the thing demised? Can it make any difference to

the mills whether they are worked by persons of one parish or another; or can it affect the value of the thing at the end of the term, independently of collateral circumstances? The settling an additional number of persons in this place may, indeed, by means of the increased population, bring an increased burden at the end of the term on those who are to pay the rates; but that increase of population may also be an increased benefit of the land-owners, as it has happened within our own experience in many parts of this kingdom, the seats of manufactures, where the value of land has, in consequence, risen in a great proportion. But the covenant in question does not affect the thing demised immediately, but only, if at all, in respect of collateral circumstances; that is, through the medium of an increased population, and the increased expense of providing for them on the one hand, with the increased value of the lands to be set against it on the other hand. How then does it affect the mode of occupation? The carrying on of a particular trade on the premises may be said to do that; but where the work to be done is at all events the same, whether it be done by workmen from one parish or another cannot affect the mode of occupation. The covenant, therefore, not directly affecting the nature, quality, or value of the thing demised, nor the mode of occupying it, is a collateral covenant, which will not bind the assignee of the term, though named; and this is a question with the assignee, and not with the original lessee who entered into the covenant. In the case of Bally v. Wells [3 Wils. 25] the covenant might affect the thing demised; for if the lessee of the tithe suffered any of the farmers of the parish to take their own tithes, such union of the land with the tithe might lay a foundation for claiming a modus, which might affect the future value of the tithes, and would immediately affect the occupation. But we cannot say that this covenant does either; and therefore it does not run with the land so as to bind the assignees. Judgment for the defendant.

COVENANT. Declaration stated, that one H. N. Middleton being seised in fee of the premises, demised the same by lease to the defendant for fourteen years, and that the defendant covenanted to repair, &c. The declaration then stated the entry of the defendant upon the premises, the reversion still remaining in Middleton; that the latter by lease and release conveyed his reversion to W. H. and W. T. in fee ; that they became seised of the reversion in fee, and that they on the

1 The concurring opinions of LE BLANC and BAYLEY, JJ., are omitted.