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nants, or agreements expressed in the indentures of leases and grants against the said lessees and grantees, their executors, administrators, and assignees, as the said lessors and grantors, their heirs or successors, might have had.' And s. 2 enacted that all lessees and grantees of lands or other hereditaments, for terms of years, life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the King, or of any other persons, of the reversion of the said lands and hereditaments so letten, or any parcel thereof, for any condition or covenant expressed in the indentures of their leases, as the same lessees might have had against the said lessors and grantors, their heirs and successors.'" If the action had been against the original lessee in this case, it would be impossible to contend that all the lessors must not have joined, by virtue of the express covenant.

It was further contended that the defendants, as assignees of the bankrupt lessee, more effectually represented the lessee than an ordinary assignee would, assuming all his liabilities as well as acquiring all his rights, at least so long as they held; and that their liability rather resembled that of an executor,-only out of their own moneys. The following authorities were referred to,-Doe d. Cheere v. Smith, 5 Taunt. 795, Burnett v. Lynch, 5 B. & C. 589, 8 D. & R. 368, Wolveridge v. Steward, 3 M. & Scott, 561, 1 C. & M. 644, Gibson v. Carruthers, 8 M. & W. 321, Beckham v. Drake, 8 M. & W. 846, Beckham v. Drake, 2 House of Lords Cases, 579, and the 12 & 13 Vict. c. 106, ss. 141, 145.

Willes, for the defendant Edwards. The latter branch of the argument on the other side assumes that there is a different degree of liability imposed upon the assignees of a bankrupt who elect to take a term which was

vested in him, from that which the law casts upon any other sort of assignee. There is no authority for any such position, and the whole scope and policy of the bankrupt laws are opposed it.

The real question is, whether the assignee of the lessee in this case is liable upon the covenant for the payment of rent,-whether it is a covenant which runs with the land. The distinction laid down in the notes to Thursby v. Plant, 1 Wms. Saund. 240 a,-" that, at common law, covenants ran with the land, but not with the reversion." But for the case of Wakefield v. Brown, 9 Q. B. 209, this question would present but little difficulty. If it be necessary to discuss the principle of that decision, it will be submitted that the court there came to an erroneous conclusion. A covenant will not run with an estate by estoppel: Noke v. Awder, Cro. Eliz. 436; Whitton v. Peacock, 2 Scott, 630, 2 N. C. 411. In Jarman on Conveyancing (Bythewood), Vol. 4, p. 385 (2nd edit.), it is said: "The statute (32 H. 8, c. 34) extends to covenants only which immediately affect the nature, value, or mode of occupation of the subject of the demise, or, in other words, which run with the land, and not to personal and collateral covenants. This brings us to the the consideration of what are covenants that run with the land, a point of no less importance than difficulty. It should be premised, however, that, in order to fall within the operation of the statute, the covenant must be made with the person having the legal estate." The statute only gives the assignees of the lessor the same remedy upon the covenants which the lessor himself had. In Selwyn's Nisi Prius, 10th edit. 484, 11th edit. 508, it is said: "If the covenant extends to a thing in esse, parcel of the demise, as, a covenant to repair,-Dean and Chapter of Windsor's Case, 5 Co. Rep. 24. a.,-to reside constantly on the demised premises,-Tatem v. Chaplin, 2 H. Blac. 133,-to leave part of the land de

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mised every year for pasture,-Cockson v. Cock, Cro. Jac. 125,-to insure against fire premises situated within the limits mentioned in the party-wall act, 14 G. 3, c. 78, -Vernon v. Smith, 5 B. & Ald. 1,-or the like, the thing to be done by force of the covenant is in a manner annexed and appurtenant to the thing demised: it is a parcel of the contract, and tends to the support of the thing demised; hence, it shall bind the assignee, although he be not named; and the assignee by act in law, as, tenant by elegit of a term, or he to whom a lease for years is sold by force of any execution, is equally bound with the assignee by act of the party: 6th resolution, Spencer's Case, 5 Co. Rep. 17. b." In The Earl of Portmore v. Bunn, 1 B. & C. 694, 3 D. & R. 145, in covenant by the reversioner against the assignee of the grantee, the declaration stated that A. and B. did grant licence for a term of years to C. to continue a channel open through the bank of a navigation, in order that the waste water might pass through the channel to the mills of C., the latter paying a certain annual sum therein mentioned: breach, non-payment of that annual sum. By the deed produced in evidence, A. and B. were described as persons having the greatest proportion or share in the profits of the navigation: and it was held, that the deed shewed that the assignee of the grantee was not bound by the covenants, inasmuch as it appeared that the grantors had not any legal or equitable estate in the real hereditaments which the deed set out in the declaration purported to grant. In Taylor v. Needham, 2 Taunt. 278, pleas by the assignee of a lessee, that the lessor did not demise, and that he the assignee did not break or neglect to keep the covenant made by his lessee, were held bad on demurrer. There is no real difference between this case and the grant of a rentcharge. It has never been held that covenants run with a rent-charge: on the contrary, the cases seem to

shew that they do not. In Milnes v. Branch, 5 M. & Selw. 411, where J. B., being seised in fee, conveyed to the defendant and T. J., their heirs and assigns, to the use that J. B., his heirs and assigns, might have and take to his use a rent certain to be issuing out of the premises, and, subject to the said rent, to the use of the defendant, his heirs and assigns, and the defendant covenanted with J. B., his heirs and assigns, to pay to him, his heirs and assigns, the said rent, and to build, within one year, one or more messuages on the premises, for better securing the said rent, and J. B. within one year demised the said rent to the plaintiffs for one thousand years,—it was held, that covenant would not lie for the plaintiffs, for non-payment of the rent, or for not building the messuages, for, the covenant was personal to J. B. The like law was laid down in Webb v. Russell, 3 T. R. 393. Here, three persons join in a lease, the mortgagee and the mortgagor of one moiety of the premises, and the owner of the other moiety. The only demising parties are the two former, the latter merely assents. And the rent is reserved, not to any particular person, but generally. The rent would follow the reversion: but the covenant introduces a fresh difficulty; it is with the three. The intention probably was, that the rent should be paid to the three: if so, it is a sum in gross, and not rent. See Ackroyd v. Smith, antè, Vol. X, p. 164, and Wootton v. Steffenoni, 12 M. & W. 129. Primâ facie, the only person liable upon a covenant, is he who executes the deed. His executor is liable, and so also is his heir, if named in the covenant. So, the assign, the privy in estate, of the person entering into the covenant, is liable in certain cases. Two questions are to be looked at,-first, whether the covenant is one which runs with the land,-secondly, whether the party sought to be charged is privy in estate with the party who enters into the covenant. In Wake

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field v. Brown, 9 Q. B. 209, the covenant related to the land, it was not a mere covenant to pay a sum in gross. The reason assigned for the decision there,-"that there is privity of estate between the defendant and one of the plaintiffs," is entirely unsatisfactory, and is founded upon no rule of law.

Kemplay, for the defendants Spicer and Cohen, referred to Parmenter v. Webber, 2 J. B. Moore, 656, Smith v. Mapleback, 1 T. R. 441, Wollaston v. Hakewill, 3 M. & G. 297, 3 Scott N. R. 593, Preece v. Corrie, 5 Bingh. 24, 2 M. & P. 57, Pollock v. Stacey, 16 Law Journ. N. S., Q. B. 132, Vernon v. Smith, 5 B. & Ald. 1, and Harrold v. Whitaker, 11 Q. B. 147.

[Willes

Brown, in reply, cited Smith v. Mapleback, 1 T. R. 441, and Thomas v. Pemberton, 7 Taunt. 206. referred to Mayho v. Buckhurst, Cro. Jac. 438.]

Cur. adv. vult.

JERVIS, C. J., now delivered the judgment of the court:

We have considered this case, but do not purpose to enter into an examination of the authorities and the principles by which it should be governed.

The question is upon the record, and we therefore think that we are bound by the decision of Wakefield v. Brown, which is expressly in point. If we were to decide for the defendants, fortified by that authority, the plaintiffs would bring a writ of error; and if, on the other hand, that case cannot be supported, the defendants may review it in a court of appeal.

Under these circumstances, we think it respectful to defer to the considered judgment of a court of coordinate jurisdiction, and therefore, upon the authority of that case, give judgment for the plaintiffs.

Judgment for the plaintiffs.