Chap. X. Sect. 1. Implication of covenants. Plan, if referred to, read along with the agreement. arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative (≈). But a man who has expressly covenanted to perform certain acts cannot be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of his express covenant (a). If A. demises land to B. and covenants not to demise the adjoining land for the purpose of carrying on a certain business, and afterwards demises part of the adjoining land to C. taking a covenant from C. not to carry on such business, but C. nevertheless carries on the same, B. cannot compel A. to enforce the covenant entered into by C. (b). Stipulations which are necessary to make a contract reasonable (d), or conformable to usage (e), are implied in respect of matters concerning which the contract manifests no contrary intention (f). Where the contract as expressed in writing would be futile and would not carry out the intention of the parties, the law will imply any term obviously intended by the parties which is necessary to make the contract effectual (9). A plan, if referred to by an instrument, must be read along with it and be looked to for the purpose of explaining it (h). But the mere exhibition of a plan does not amount to a representation or warranty that all the ground exhibited in the plan shall be put or shall continue in the same state in which it was Co. v. Manchester Racecourse Co., (z) Stirling v. Maitland, 5 B. & 93. (a) Aspdin v. Austin, 5 Q. B. 671, 683; Smith v. Mayor of Harwich, 2 C. B. N. S. 651, 667. (b) Kemp v. Bird, 5 C. D. 552, (d) Jones v. Gibbons, 8 Exch. 922. 617; Pollock v. Stables, 12 Q. B. 765; Dale v. Humfrey, El. Bl. & El. 1004. (f) Hutton v. Warren, 1 M. & W. 475. (g) Oriental Steamship Co. v. Tyler, (1893) 2 Q. B. 518, 527 (C. A.); Holford v. Acton Urban Council, (1898) 2 Ch. pp. 246, 248. (h) Clarke v. Manchester, Sheffield, and Lincolnshire Railway Co., 1 J. & H. 631; Nicholson v. Rose, 4 D. & J. 10; Re Birmingham District Land Co. and Allday, (1893) 1 Ch. 342. exhibited upon the plan (i). The case however is different, if the plan has been made distinctly and expressly a part of the agreement (k). Chap. X. Persons taking by assignment from a covenantee may enforce Parties. their rights against the assigns of the covenantor without bringing the original covenanting parties before the Court, even where the covenant does not run with the land (1). A person having only an interesse termini cannot maintain an action on a covenant for quiet enjoyment (m). Every covenant the benefit of which runs with the land at law, must have been originally entered into with a covenantee who at the time had an interest in the land to which the covenant refers, and must touch or concern that land. But it is a question of intention in each case to be determined on the construction of the particular document and with due regard to the nature of the covenant and the surrounding circumstances, whether the benefit of a covenant which possesses the abovementioned characteristics does in fact run with the land (n). The original covenantor is not a proper party to an action to restrain an assignee of the lease from violating a covenant in the lease, if he has parted with all interest in the property and is not in any way in fault (0). Nor should a lessee of land, subject to a restrictive covenant, who grants an underlease of the premises containing a similar covenant on the part of the underlessee, be made a party to an action by the lessor against the underlessee for breach of the restrictive covenant, if there is no evidence to show that he has been privy to or sanctioned the breach of the covenant by the underlessee (p). But where a man has been instrumental in (1) Feoffees of Heriot's Hospital v. Gibson, 2 Dow, 301; Squire v. Campbell, 1 M. & C. 485; Fewster v. Turner, 11 L. J. Ch. 161; Tucker v. Vowles, (1893) 1 Ch. 195. See Eastwood v. Lever, 4 D. J. & S. 114. (k) Rankin v. Huskisson, 4 Sim. 15; Slee v. Corporation of Bradford, 4 Giff. 262. (1) Child v. Douglas, Kay, 577, per Lord Hatherley; but see Muller Chap. X. Parties. leading another to commit a breach of covenant, he may be rightly made a party to an action to restrain the breach (q). Where a lessee enters into a restrictive covenant for himself and assigns, and sublets to a tenant who commits a breach of the covenant, no action lies against the lessee, since the subtenant is not an assign within the meaning of the covenant (r). Although several persons may be entitled to complain of a breach of covenant, one alone of such persons may maintain the action; the others need not be parties to or be represented in the action. Where, for example, a vendor sells land in building lots and takes restrictive covenants in identical terms from the several purchasers, neither reserving any interest nor entering into any covenant himself, the owner of any one lot for the time being may enforce the covenant in equity against the owner of any other lot. The owners of the other lots are not necessary parties to an action by one of them to restrain the breach of covenant (s). A mortgagee who is a covenantee and his assigns may bring an action to enforce the covenant (t). So also a mortgagor in receipt of the rents and profits has sufficient interest to enable him to maintain an action for an injunction to restrain an injury done to the mortgaged property without joining the mortgagee (u). Tenants in common assignees of the reversion of a lease may join in suing or be jointly sued on the covenants therein (x). Where there are mutual covenants by owners of land their heirs and assigns with the owners of adjoining land their heirs and assigns to comply with certain stipulations, the subsequent lessee of one of the owners is entitled to the benefit of the covenants as an assign and can enforce the same (y). (g) Tritton v. Bankhart, 35 W. R. 474, W. N. (1887) 53. (r) Bryant v. Hancock, (1898) 1 Q. B. 716, aff. (1899) A. C. 442, on the ground that there had been no breach. (8) Western v. M'Dermott, 2 Ch. 72; Harrison v. Goode, 11 Eq. 349; Lord Manners v. Johnson, 1 C. D. 681. (t) Lord Manners v. Johnson, 1 C. D. 680. (u) Fairclough v. Marshall, 4 Exch. D. 48; and see Judicature Act, 1873, s. 25, sub-s. (5). See also Van Gelder v. Sowerby Bridge, &c., Society, 44 C. D. 374, 394 (C. A.). (x) Womersley v. Daley, 26 L. J. Ex. 219. (y) Taite v. Gosling, 11 C. D. 273. The assignee of a lessee is liable in covenant and entitled to bring an action for breach of covenant, although assigns are not named in the covenant (z). The Statute 32 Hen. VIII. c. 34 has placed the assignee of a reversioner on the same footing in this respect as the assignee of a lessee, and gives to reversioners the benefit of covenants entered into with their predecessors in title if and so far as they run with the land (a). The successive reversioners, as they become entitled to the estate, have a right to insist upon the performance of the covenants irrespectively of the damage which may accrue from the breach (b). But reversioners who are not the immediate reversioners expectant upon a lease, but entitled merely in remainder, are precluded from suing, unless they can prove special damage to themselves in respect of their interest in the reversion (c). Courts of equity in interfering at the suit of reversioners in remainder to restrain breaches of covenant, follow the analogy of the rule at law, and will not grant injunctions unless material damage has been shown (d). Thus in the case where the reversioner of a leasehold house held under a lease for 999 years (the tenant for life of the reversion not being a plaintiff) sought to restrain the lessee from keeping a school contrary to a covenant in the lease which stipulated that no trade or business whatever should be carried on in the house, but that it should be used simply as a dwelling-house, Lord Hatherley refused to grant an injunction on the ground that the damage was too minute for the Court to interfere. The case would have been different had the lessee been carrying on a noxious or offensive trade (e). In an action by an assignee of the reversion for breach of (z) White v. Southend Hotel Co., (1897) 1 Ch. 767; John Brothers v. Holmes, (1900) 1 Ch. 188; Manchester Brewery Co. v. Coombs, (1901) 2 Ch. 608. (a) Fleetwood v. Hall, 23 Q. B. D. 35; Clegg v. Hands, 44 C. D. 503; Birmingham Breweries Co. v. Jameson, 67 L. J. Ch. 403; Muller v. Trafford, (1901) 1 Ch. 54. K.I. (b) Isherwood v. Oldknow, 3 M. & S. 382. (c) Mumford v. Oxford, &c., Rail- (d) Johnstone v. Hall, 2 K. & J. 24 Chap. X. Reversioner may sue. Chap. X. Sect. 1. Statement of claim in action by reversioner. # Varieties of covenants. Injunction to restrain breach of negative covenants. covenant in a lease, the statement of claim must allege the nature of the deeds and documents by which the plaintiff became such assignee so as to be entitled to sue under 32 Hen. VIII. c. 34 (ƒ). Covenants are either of an affirmative or negative nature. Where a man covenants that something has been done or shall be done hereafter, the covenant is affirmative. Where a man covenants that a thing has not been done or shall not be done hereafter, the covenant is a negative one. In cases where the covenant is affirmative, the remedy in equity is by way of specific performance. If the covenant is a negative one, the remedy is by way of injunction. In restraining by injunction the breach of a negative covenant, the interference of the Court is in effect an order for specific performance. "An agreement," said Lord St. Leonards in Lumley v. Wagner (g), “may be as effectually performed in this way as by an order for the performance of the thing to be done." "If there is a negative covenant," said Lord Cairns in Doherty v. Alman (h), "the Court has no discretion to exercise. If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of equity has to do is to say by way of injunction that the thing shall not be done. In such a case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience or of the amount of damage or injury, it is the specific performance by the Court of that negative bargain which the parties have made with their eyes open between themselves." Persons accordingly who had entered into a covenant not to ring church bells at stated periods and had accepted the benefits of the covenant were restrained from violating its obligations (i). So also an author who on the sale of a work had covenanted with the purchaser not to publish a work of the like nature, or do anything which (f) Davies v. James, 53 L. J. Ch. 523. (g) 1 D. M. & G. 615. (7) 3 App. Ca. 720. See McEacharn v. Colton, (1902) A. C. 104. (i) Martin v. Nutkin, 2 P. W. 266. |