maintained upon a breach laid to him. Coke's Entries 111, cited in 4 Johns. 74.

True, in a book of very excellent authority, it is laid down. generally, that if a man "covenants with B, his heirs or assigns, upon a grant or conveyance of an inheritance, the exe cutor or administrator of B may have covenant for damages in his lifetime." Com. Dig., tit. Covenant (B. 1). But Lord Ellenborough has said, that when that position comes to be compared with Lucy v. Levington, the authority there cited in support of it, it will be found not to be borne out by that case in its generality; for in that case there was an eviction in the lifetime of the testator, and therefore the damages in respect of such eviction, for which the action was there brought, were properly the subject of suit and recovery by the executor. 1 M. & S. 363. There, said Bayley, J., if the executor could not have sued, no other person could, because the testator having been evicted, there could be no heir of the land. Id. 366.

Where the executrix of a vendor, sued on a vendor's covenant that he has a good title, alleging a breach of that covenant in the testator's lifetime, but not shewing that the testator in his lifetime had sustained damage, or was otherwise prejudiced by that breach, the court of king's bench sustained a demurrer to the declaration, Bayley, J. saying, "if the executrix was permitted to take advantage of this breach of covenant, she would be recovering damages to be afterwards distributed as personal assets, for that which is really a damage to the heir alone, and yet such recovery would be a complete bar to any action which the heir might bring." Kingdon v. Nottle, 1 M. & S. 363. Afterwards, on the same covenant, an action by the devisee was maintained, Lord Ellenborough saying, "here the covenant passes with the land to the devisee, and has been broken in the time of the devisee; for so long as the defendant has not a good title, there is a continuing breach, and it is not like a covenant to do an act of solitary performance, which, not being done, the covenant is broken once for all, but is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require. Here, according to the letter, there was a breach in the testator's lifetime; but according to the spirit, the substantial breach is in the time of the devisee, for she has thereby lost the fruit of the covenant in not being able to dispose of the estate." Kingdon v. Nottle, 4 M. & S. 57.

It appears, then, to be the established doctrine of the English courts that if the declaration shew a contract with the decedent, a breach of it in his lifetime, and some loss, injury or damage to his personal property, there is a right of action in

the decedent in his lifetime, or if he be dead, in his personal representative. Knights v. Quarles, 2 Brod. & Bingh. 102; 6 Eng. Com. Law Rep. 34; Orme v. Broughton, 10 Bingh. 533; 25 Eng. Com. Law Rep. 231; but that a covenant for title, notwithstanding it may have been broken in the lifetime of the covenantee, passes with the land to the heir or devisee, who, the breach continuing, may maintain an action for damage to the plaintiff, arising from that breach. Sugden on Vend. vol. 2, ch. 14, § 1, 2, p. 458 of 10 Lond. edi., p. 306, 7 of 6 Am.

The decisions, in the cases of Kingdon v. Nottle, have been recognized in Ohio. By these decisions, the supreme court of Ohio considers it settled, that when the heir or assignee acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the realty, and that where he has been evicted, by paramount title, he is the party damnified by the non-performance of the grantor's covenants, and for such breach may sustain an action. Backus's adm'r v. McCoy, 3 Ohio 220. Its doctrine is that the covenant of seisin may be personal or real; if it never attach to the land it is instantly broken and personal; if it once attach, it is real and runs with the land. If the grantor be in actual possession, claiming adversely, the covenant of seisin runs with the land, and is not broken until the purchaser, or those claiming under him, shall be evicted by paramount title. But if the grantor is not in actual possession, and has not title, the covenant of seisin is instantly broken and is personal. Devore v. Sunderland, 17 Ohio 60.

On the other hand we have opposed to the decisions in Kingdon v. Nottle, chancellor Kent, who deems the reason assigned by the English judges for those decisions too refined to be sound. 4 Kent's Com. 472. He regards the breach as single, entire and perfect in the first instance; in effect adopting the view of the supreme court of Connecticut.

That court, in accordance with Swift's Dig. vol. 1, p. 370, holds that on a covenant of seisin no action can be maintained by a person claiming to be the assignee of that covenant. "This covenant," says Hosmer, C. J., "from its nature, is broken instantaneously on the delivery of the deed or it is never broken. It runs in the words of the present tense, and asserts that the grantor is well seized. Now, if he is well seized, according to his covenant, the agreement is fulfilled; and if he is not well seized the covenant is false and immediately broken. It follows from this that it is a personal covenant, which most clearly never runs with the land, and that

the grantee, in whose time the breach existed, can alone sue upon it; for after a breach the cause of action can never be assigned. It would be the assignment of a chose in action, which the common law will not permit. Mitchell v. Warner, 5 Conn. 503.

C. J. Hosmer cannot subscribe to the observation of Lord Ellenborough in 1 M. & S. 355, "that there was no damage sustained in the testator's lifetime;" he considers that "the covenant being broken the instant it was made, the damage most obviously was the whole consideration paid." Nor does he agree with Lord Ellenborough, that in Kingdon v. Nottle the heir was "the party actually damnified." It being admitted that the covenant was broken in the lifetime of the testator, this he regards as shewing that the testator was the person, and the only person, who received damage. "The complaint is, that the grantor was not seized and had conveyed no title. How then," he asks, "is it possible that the heir should inherit land to which his ancestor had no title? If, then, he had no title to the estate supposed to be conveyed, and he was no party to the covenant, and the breach happened before his ancestor's death, what is the ground of his claim?” In the opinion of Judge Hosmer, there is none.

From the opinion in Kingdon v. Nottle, 4 M. & S. 53, he dissented in omnibus. The calling the breach in the testator's lifetime a continuous breach, and therefore a breach to the heir or devisee at a subsequent time, he regarded as an ingenious suggestion but of no substantial import. "Every breach of a contract," he said, "is a continuous breach until it is in some manner healed; but the great question is, to whom does it continue as a breach? The only answer is, to the person who had title to the contract when it was broken. It remains as it was, a breach to the same person who first had a cause of action upon it. If it be anything more it is not a continuing breach, but a new existence. In the next place I assert," he says, "that it is like a covenant to do an act of solitary performance; and for this plain reason that it is in its nature a covenant for a solitary act and not a successive one. If the covenant is broken, that is, if the grantor was not seized, it is infracted to the core; and a second supposed breach is as futile as the imaginary unbroken existence of a thing dashed in pieces. It has no analogy to a covenant to do a future act, at different times, which may undergo repeated breaches. It has no futurition; and it cannot be partly broken and partly sound; but the grantor is seized or not seized; and therefore the covenant is inviolate, or vitiated wholly."

The supreme court of Vermont takes a like view-that if the covenant of seisin is not true, there is a breach of it, entire and complete, as soon as the deed is executed; that it does not run with the land or pass to an assignee; but is on the footing merely of a personal covenant or chose in action. Garfield v. Williams, 2 Vermont 327.

The supreme court of Massachusetts concurs in the opinion. that the decision in Kingdon v. Nottle cannot be reconciled with the principle that choses in action are not assignable; it considers that there was but one breach of the covenant of seisin that a right of action vested in the testator, and unless this right could by law be transferred to the devisee, no action in his name could be maintained at law. Clark &c. v. Swift, 3 Metcalf 394.

In Virginia, there has been an intimation of opinion that a covenant which is broken, if at all, at the instant of its being made, such as the covenant of seisin, of right to convey, or against incumbrances, does not run with the land, 8 Grat. 395, 6; but this intimation of opinion was not in a case which made it necessary to investigate the doctrine of Kingdon v. Nottle; it may therefore be regarded in this state as an open question, whether the doctrine of Kingdon v. Nottle, or that of Mitchell v. Warner, shall prevail.

6. Action on covenant in bill of sale for a slave.

When on the sale of a slave there is a covenant of warranty of title, the plaintiff, in an action for breach of such covenant, must generally aver and prove deprivation of possession by a person having lawful title. Fenwick v. Forrest, 5 Har. & J. 416. But if the value of the slave be recovered in an action of trover by the true owner, this is tantamount to eviction. It is a loss of the property by the covenantee, who is, by a legal compulsion, under a necessity to pay the value to the true owner, and thus purchase the same slave a second time. Lee v. Gause, 2 Iredell 445.

A covenant of this sort, touching a personal chattel, does not attach itself to the chattel, or run with it, as it is called, as a like covenant does with realty; and therefore the assignee of the personal property cannot sue on a covenant of warranty to his vendor. But if such assignee be evicted by title paramount, he may have recourse to his assignor; and the latter, again, after making satisfaction, may fall back on the original vendor to himself to recover in damages what he has been compelled to pay by reason of the defective title warranted. S. C.

VOL. II.-8

CHAPTER IX.

WHETHER WITHOUT COVENANT OF WARRANTY OR OTHER SPECIAL COVENANT BY SUB-LESSEE OR ASSIGNEE, THERE IS A RIGHT OF ACTION AGAINST HIM BY HIS ASSIGNOR FOR BREACH OF COVENANTS IN ORIGINAL LEASE.

1. Nature of the decision in Neale v. Wyllie, 3 Barn. & Cress. 533.

In England there has been a change of opinion as to the nature of the liability of a sub-lessee, or the assignee of a sublessee, who covenanted to repair, and leave the premises in repair at the expiration of the term. Where by reason of the premises being suffered to be out of repair, an action was commenced against the original lessee, who was compelled to pay damages and costs, and he then brought an action against the assignee of the sub-lessee, alleging, as special damage resulting from the defendant's breach of covenant, that the plaintiff was compelled to pay such damages, the court of king's bench said, that "if he could not recover those damages and costs against this defendant, he would be without redress for an injury sustained through the neglect of the defendant, and not in consequence of his own default; for during the term, he could not enter and repair the premises without rendering himself liable to be treated as a trespasser." Neale v. Wyllie, 3 Barn. & Cress. 533; 10 Eng. Com. Law Rep. 172.

2. Neale v, Wyllie overruled in Penley &c. v. Watts &c. 7 M. & W. 609; the latter now the law. Sub-lessee is liable only for the damage sustained by breach of his own covenant; how first lessee may protect himself by taking a covenant of indemnity.

If the original lessee had taken from the sub-lessee a covenant of indemnity against any breach of the covenants in the original lease, then the costs of the action brought against the original lessee might be recovered by him in an action against the sub-lessee for a breach of his covenant. Duffield v. Scott, 3 T. R. 364. But when the contract of the sub-lessee is not of this nature, but only a covenant to keep the premises in a certain state of repair, and a covenant materially different in its terms from that of the original lessee, there can in an action on the contract of the sub-lessee, only be recovered the