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A contract excluding a party from carrying on any where or at any time a particular trade or business is illegal. Alger v. Thatcher, 19 Pick. 51. But there may be a covenant not to carry on such trade or business within a prescribed distance; the courts sustain as valid, a restriction reasonably limited as to space. Elves v. Crofts, 10 Com. Bench (J. Scott) 259; 70 Eng. Com. Law Rep. 259. The prescribed limits were deemed not unreasonable in Pierce v. Fuller, 8 Mass. 223; Perkins v. Lyman, 9 Id. 522; Stearns v. Barret, 1 Pick. 450; Palmer &c. v. Stebbins, 3 Id. 188; Pierce v. Woodward, 6 Id. 206; Nobles v. Bates, 8 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Pyke v. Thomas, 4 Bibb 486.

A covenant in restraint of trade, is sometimes divisible, and held reasonable and valid as it regards the exercise of a particular business in a certain section of country, and unreasonable and void for a greater distance. Chesman v. Namby, 2 Str. 739; 2 Ld. Raym. 1456; Mallan &c. v. May, 11 M. & W. 667; Price v. Green, 16 Id. 352; Nicholls v. Stratton, 10 Adol. & El., N. S. 346; 59 Eng. Com. Law Rep. 346.

4. Bond or covenant may be good in part, and void for the residue.

That bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine of the common law, recognized from an early period. Pigot's case, 11 Rep. 276. Notwithstanding the case of Lee v. Coleshill, Cro. Eliz. 529, the doctrine is still maintained in all cases where the dif ferent covenants or conditions are severable, and independent of each other, and do not import malum in se. Newman v. Newman, 4 M. & S. 66. And though in Norton v. Simmes, Hob. 14, a distinction was taken between a bond void by statute and by common law, the distinction prevails only when the statute has not confined its prohibitions to the illegal conditions, covenants or grants, but has expressly, or by necessary implication, avoided the whole instrument to all intents and purposes. Malaverer v. Redshaw, 1 Mod. 35. It is considered in other cases that there is no distinction between bonds and other deeds containing covenants or grants not malum in se, but illegal at the common law, and those containing conditions, covenants or grants illegal by the express prohibitions of statutes; but that the bonds or other deeds are void as to such conditions, covenants or grants which are illegal, and are good as to all others which are legal and unexceptionable in their purport. This doctrine has been maintained and acted

on by the supreme court of the United States. Postmaster General v. Early, 12 Wheat. 136; Smith v. U. S. 5 Peters 293; Brown v. U. S. Id. 373; U. S. v. Bradley, 10 Peters 363; the court 1egarded it as established by the cases of Mouse v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East 236; Wigg v. Shuttleworth, 13 Id. 87; How v. Synge, 15 Id. 440; Greenwood v. Bishop of London, 5 Taunt. 727; 1 Marsh. 292; Thompson v. Pilcher, 6 Taunt. 359; 2 Marsh. 61.

CHAPTER V.

OF THE RIGHT OF ACTION ON COVENANTS GENERALLY-EXPRESS AND IMPLIED; BY WHAT WORDS CREATED; HOW TO BE CONSTRUED AND PERFORMED.

There are two kinds of covenants, viz., a covenant in law and a covenant in deed. 1 Co. Lit. 1396; which last is termed an express covenant. Vaughan's Rep. 118.

1. Of implied covenants.

A covenant in law, properly speaking, is an agreement which the law infers or implies from the use of certain words, having a known legal operation in the creation of an estate; so that after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created; as if a man by deed demise land for years, covenant lies upon the word "demise," which imports or makes a covenant in law for quiet enjoyment; or if he grant land by feoffment, covenant will lie upon the word dedi. Tindal, C. J. in Williams v. Burrell, 1 Man. Gr. & Scott 429; 50 Eng. Com. Law Rep. 429; 7 Gill & J. 315.

The implied covenant created by the word demise in a lease made by tenant for life, will only extend to make him warrant the estate as long as he lived; though there may be an ouster by the remainderman after the death of the tenant for life and before the effluxion of the term, no action will lie against the executors of the lessor on his implied covenant. Dyer 257a; Bendloe 150; Bragg v. Wiseman, 1 Brownl. 22; Hyde v. Canons of Windsor, Cro. Eliz. 553; Shep. Touch.

160; Com. Dig. Covenant (C.); Adams v. Gibney, 6 Bingh. 656; 19 Eng. Com. Law Rep. 194. It was the lessee's fault to accept a lease without an express covenant for quiet enjoyment.

Such express covenant is material to be inserted where the grant is for life. Kent v. Welch, 7 Johns. 259. If a conveyance be of an estate of freehold there is not implied any covenant for quiet enjoyment by words of lease and demise. Fitz. N. B. 145; Bac. Abr. Covenant C; Pincombe v. Rudge, Yelv. 139, Hob. 4; Black v. Gilmore, 9 Leigh 448; nor any covenant of seisin or estate by the words grant, bargain, sell, alien and confirm, Frost &c. v. Raymond, 2 Caines's Rep. 188. The dictum to the contrary of Lord Eldon in Browning v. Wright, 2 Bos. & Pul. 21, as to such words when used in a deed in fee, is regarded by Kent, C. J. as opposed to the whole stream of the book authorities. 2 Caines's Rep. 195.

A different rule may however be prescribed by statute. In Pennsylvania by virtue of an act passed in 1715 the words "grant, bargain, and sell," have the force of a general warranty unless restrained by subsequent expressions. Bender v. Fromberger, 4 Dall. 440. Those words operate also as a covenant against incumbrances done or suffered by the grantor; in other words that the estate was not defeasible, by any act done by him. Funk v. Voneida &c. 11 S. & R. 111. And the effect of such words can only be limited "by express words contained in the deed;" they are not controlled by a special covenant, when such special covenant is not inconsistent with the general covenant. S. C.

In England it has long been established that where in a conveyance express covenants for warranty are introduced, none can be implied from the general words of conveyance. Stannard v. Forbes &c. 6 Adol. & El. 634; 33 Eng. Com. Law Rep. 155. Such is understood to be the law of Virginia.

2. Of express covenants; by what words created.

When there is an express covenant, containing a lawful stipulation for a particular event, the breach of that stipulation will give a right of action. Craig v. Pride, 2 Spears 121; White's adm'x v. Toncray, 5 Grat. 179; Butler v. O'Neall, Rice 182.

In order to constitute a covenant it is not necessary the word "covenant" should be expressly employed. Stevenson's case, 1 Leon. 324; Holles v. Carr, 2 Mod. 87. Nor indeed are any precise or technical words necessary. Whether there be a covenant or not depends on what appears to be the intention

of the parties. Andrews v. Ellison &c. 6 J. B. Moore 198; 17 Eng. Com. Law Rep. 24; Wood v. Miners Co. 7 Man. Gr. & Scott 936; 62 Eng. Com. Law Rep. 936. Any words in a deed which shew an agreement to do a thing make a covenant. Com. Dig. tit. Covenant (A2). The court is to look at the whole of the instrument and if they find it contains a clear agreement to do any act, whether in the way of covenant, proviso or exception, then an action may be maintained on the instrument for the breach of such agreement. Saltoun &c. v. Houstoun &c. 1 Bingh. 433; 8 Eng. Com. Law Rep. 368; Andrews v. Ellison &c. 6 J. B. Moore 199; 17 Eng. Com. Law Rep. 24; Sampson &c. v. Easterby, 9 Barn. & Cress. 505; 17 Eng. Com. Law Rep. 431; S. C. 6 Bingh. 644; 19 Eng. Com. Law Rep. 191. It will be found in these cases that where words of recital or reference manifested a clear intention that the parties should do certain acts, the courts have, from these, inferred a covenant to do such acts, and sustained actions of covenant for the non-performance, as if the instruments had contained express covenants to perform them. 5 Adol. & El. N. S. 683; 48 Eng. Com. Law Rep. 683.

Wherever, says Baron Park, the court can collect from the instrument an engagement on the one side to do or not to do something, it amounts to a covenant, whether it is in the recital or in any other part of the instrument. Great N. Railway Co. v. Harrison, 12 Com. Bench (3 J. Scott) 609; 74 Eng. Com. Law Rep. 609.

The agreement of both parties in an instrument under the seals of both that one should give the other a sum of money for certain of his lands, amounts to a covenant by the vendor to convey as well as by the vendee to pay. Pordage v. Cole, 1 Saund. 319; 6 Man. Gran. & Scott 175; 13 Com. Bench (4 J. Scott) 516; 60 Eng. Com. Law Rep. 174; 76 Id. 516.

An agreement of one man to transport salt, and of another to pay him therefor imports an implied covenant on the part of the latter to allow and permit the former to transport the salt, and to furnish him with the agreed quantities for that purpose; the implied covenant of the one is the correlative of the express covenant of the other. White's adm'x v. Ton

cray, 5 Grat. 179.

A deed of bargain and sale for land, after setting out the parties to the deed and specifying the land and the interest conveyed, goes on as follows: "To have and to hold the above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns, and from all other persons whatsoever, unto the said J. M. &c." This clause was held by the supreme court of North Carolina to

contain a covenant for quiet enjoyment. Midgett v. Brooks, 12 Iredell 147.

Where a clause of warranty being found in a demise not of a freehold interest, but of a term for years only, is not strictly and properly a warranty, the court looking at the words of the warranty may yet consider that they do, in their plain and literal meaning, import an agreement on the part of the lessor that the lessee shall enjoy the land demised during the term mentioned in the lease, and hold that they amount to a covenant to that effect. Williams v. Burrell, 1 Man. Gr. & Scott 429; 50 Eng. Com. Law Rep. 429.

The words, "the farm house and buildings being previously put in repair and kept in repair by the said Elizabeth Jones, (the lessor), were held to amount to a covenant by her to put and keep the premises in repair. Cannock v. Jones, 3 W. H. & G. 238.

So in many other cases there may be enough in the instrument to enable the court to gather and to collect from it a covenant. Corbyn v. Leader, 6 C. & P. 32; 10 Bingh. 275; 25 Eng. Com. Law Rep. 131, 266.

A covenant thus gathered and collected from the instrument, is not such an implied covenant as is to be considered merely a covenant in law; it differs nothing in its operation or legal consequences from an express covenant. Williams v. Burrell, 1 Man. Gr. & Scott 430; 50 Eng. Com. Law Rep. 430. Although a covenant in law might extend no farther than to protect such estate as the lessor could lawfully grant, which, in this case, was a term of years determinable with her own life, the court considered the covenant as if it were an express covenant for quiet enjoyment, extending to the term purported to be granted, and held consequently that the defendants were liable thereon as executors of the covenantor.

3. What words do not amount to a covenant.

It is not enough that a man has sealed and delivered a deed to maintain an action of covenant against him. A father or guardian may sign an indenture of apprenticeship to consent that his son or ward shall bind himself as an apprentice. If the father covenant that the son shall faithfully serve, an action will lie against the father for a breach of that covenant. Cuming v. Hill, 3 Barn. & Ald. 59; 5 Eng. Com. Law Rep. 220; but not otherwise. There may be words shewing what were the duties of the apprentice, yet unless the father or guardian has entered into a covenant for their performance, an action of covenant. will not lie against him. Blunt v. Melcher, 2 Mass. 231; Ackley v. Hoskins, 14 Johns. 374.

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