Restrictive words, effect of: Sir E. Sug-den's propositions respecting; how far maintainable.

(e) Sug. 759.

(d) Id. 759.

(e) lb. 761.

(f) Sug. 762; and see Young v. Raincock, 7 C. B. 310; Crossfield v. Morrison, 13 Jur. 565.

And, of course, restrictive words occurring in one covenant may extend to another, if the grammatical connection of the two require, and no inconsistency would result from, such a construction (l): "and the Court will endeavour to ascertain the intention of the parties from an attentive consideration of the whole deed, or construe the covenants either as independent or as restrictive of each other, according to such apparent intention" (m).

Upon the death of a covenantee, or other person entitled to the benefit of covenants for title which run with the land, and have been broken in his lifetime, the right of action, so far as any actual damage has been sustained by him, belongs to his executors or administrators (n); but, except to the ex*tent of such actual damage, the right to sue descends with the land, if freehold or copyhold, to the heir or devisee (o); or, if leasehold, to the executors or administrators; or, (if specifically bequeathed), to the legatee, (after their assent to the bequest).

Grammatical construction gene- , rally determines connection of covenants.

Whether real or personal representative of covenantee may sue for breach.

(g) See Nervin v. Munns, 3 Lev. 46; Browning v. Wright, 2 Bos. & P. 13; Foord v. Wilson, 2 J. B. Moore, 592; as controlled by Howell v. Richards, 11 East, 633; Stannard v. Forbes, 6 Ad. & E. 572.

(h) Vol. ix. p. 383.

(i) Barton v. Fitzgerald, 15 East, 530; Gainsford v. Griffith, 1 Saund. 58 i.; Smith v. Compton, 3 B. & Ad. 189.

(k) See Nind v. Marshall, 3 J. B. Moore, 703, 717; but not necessarily, see Hesse v. Stevenson, 3 Bos.

& P. 565; Saward v. Anstey, 10 J. B. Moo. 55; see also Martyn v. M'Namara, 4 Dru. & W. 411, where Sir E. Sugden, C, appears to have considered that a general covenant with A. might be cut down by restrictive words in a covenant entered into upon the same subject-matter with B. upon the same instrument.

(l) Broughton v. Conway, Dy. 240; Petes v. Jervies, Dy. 240, n.; and see 6 Ad. & E. 587; Rick v. Rich, Cro. Eliz. 43.

(m) 1 Saund. R. n. p. 60.

And the customary heir of a copyholder might, it is conceived, sue upon the covenants before admittance; "being a complete tenant against all persons but the Lord" (p).

Where the title is defective, and an action is brought upon the covenants before eviction, there seems to be no general rule by which the amount of damages should be determined; where the purchaser has acquired an indefeasible estate, but of a less extent than that which he contracted for, the amount, (if he choose to retain the estate,) would seem to be, the difference between the estimated values of the two estates; as if, for instance, the land prove to be copyhold instead of freehold (q): Sir E. Sugden seems to consider (r) that where the title is defective within the covenant, the purchaser, before eviction, may offer to re-convey the estate and claim the entire purchase-money; but no authority is cited for this proposition: at any rate, if an action were brought before eviction, - unaccompanied by an offer to re-convey, - it seems that the entire value could not be recovered; unless, perhaps, the alleged breach consisted in a refusal by the defendant to perfect the title (s).

Where there has been actual eviction, the purchaser may recover interest, under the name of damages, for the time during which he has been out of possession (t): upon the same principle, he would be entitled to interest upon any charge on the estate which he had been compelled to satisfy: it seems, however, to be doubtful whether he could recover it for such period as he had, without reasonable excuse, neglected to sue upon the covenant (v). So if he, without communicating with the vendor, compromise an adverse claim or suit, he may recover the amount paid by him, and his costs of suit as between attorney and client, subject only to the right of the vendor to show, either that the claim was wholly or in part unfounded, or that better terms might have been procured (w): and it would appear that, if the vendor, upon notice given to him of a suit within the terms of his covenant for quiet enjoyment, refuse to defend it, he could not, as against the purchaser, dispute the validity of the claim (x): it does not, however, appear, that the latter could safely defend an action without giving notice to the vendor or the party liable upon his covenants (y), and obtaining his directions, if the defence is apparently hopeless (z). It seems doubtful whether, in any case, the purchaser could recover the expenses of improvements, although stated as special damages in his declaration (a); but there may, perhaps, be a difference between improvements consisting in additions to the property, - e. g., expensive building erected upon the land,- and mere improvements of the land itself (b).

Customary heir may sue before admittance, semble.

Damages, what amount of recoverable where no eviction.

What amount of recoverable where there is eviction.

(n) Lucy v. Levington, 2 Lev. 26.

(o) Kingdom v. Nottle, 1 Mau. & S. 355; King v. Jones, 5 Taunt. 418.

(p) Scriv. on Cop. 290.

(q) Gray v. Briscoe, Noy, 142; see Wace v. Bickerton, 19 L. J. 254, Ch.

(r) Sug. 7G5.

(s) See 5 Taunt. 428.

A certificate in bankruptcy has been held to be no defence to an action for breach of covenants for title happening before the bankruptcy, the demand not being a liquidated debt (c).

Moneys paid by way of compromise, and costs, when recoverable.

Not sums expended in improvements.

Bankruptcy and certificate were no defence to action.

(t) King v. Jones, 5 Taunt. 418; see 422.

(v) See Anderton and another v. Arrowsmith, 2 P. & D. 408.