(w) Smith v. Compton, 3 B. & Ad. 189, and 407.

(a?) See Duffield v. Scott, 3 D. & E. 377.

(y) See 3 B. & Ad. 408; Lewis v.

Peake, 7 Taunt. 153.

(z) See Gillett v. Rippon, 1 Mood. & M. 406; Short v. Kalloway, 11 Ad. & E. 28.

(a) Lewis v. Campbell, 3 J. B. Moore, 35.

(b) See 3 J. B. Moore, 52, 54, 57.

If the covenantor died before the 16th July, 1830, no action for a breach of covenants for title would He against his devisee (d); whether the breach occurred before (e) or after the decease; but if the covenant had been for payment of a sum by way of liquidated damages, and "heirs" were named in the covenant, the devisee would have been liable, jointly with the heir, in respect of a breach occurring in the lifetime of the covenantor (f); although, if there were no heir no action would lie against the devisee alone (g); the heir, if named in the covenant, is liable to the amount of descended assets, whether the breach occur before or after the death of the covenantor (h).

And under the 1 Will. IV. c. 47 (k), devisees are, to the extent of the devised assets, rendered liable to be sued upon the covenants of their testators, jointly with the heir taking assets by descent, or solely if there be no such heir.

And it has been held, in a recent case (l), that damages upon covenants for title, in which the heir was named, for breaches happening after the covenantor's decease, will, even as against the devisee, be considered as within the meaning of a testamentary charge of debts; but the devisee, or (it is conceived) the heir, in an administration suit, is not bound by the result of proceedings by the covenantee against the personal representatives of the covenantor, but may have the question determined in an action to which he is himself a party (m): nor can interest be claimed prior to the amount of damages being so determined: but where devisees, having insisted on this right, were unsuccessful in the action, the covenantee was allowed the amount of the damages assessed upon the trial, his costs of defending the ejectment upon which he had been evicted, of an action brought by him against the personal representatives of the covenantor and by the result of which the devisees had refused to be bound, of the action to which the devisees were parties, and of the suit in Equity, and also interest on the damages and costs, to be computed from the time when the amount was ascertained and judgment entered up in the action against the devisees in).

Formerly no action of covenant, against devisee.

Alteration effected by 1 Will. IV. c. 47.

Damages for breach of covenant when claimable as debt in administration suit.

(c) Hammond v. Toulmin, 7 Durn. & E. 612; but see now and consider, 12 & 13 Vict. c. 106, s. 188.

(d) Wilson v. Knubley, 7 East, 128. (e) S. C.

(f) See Jenkins v. Briant, 6 Sim. 603, 607.

(g) Hunting v. Sheldrake, 9 M. & W. 256.

(h) See Shep. Touch. 177.

(k) See ss. 2, 3, 4, and 8. The

Act came into operation on the 16th July, 1830.

(l) Morse v. Tucker, 5 Ha. 79; Birmingham v. Burke, 2 J. & L. 699, and it appears to have been held, in another recent case, that a claimant for unliquidated damages under a breach of covenant, may himself institute a suit for the administration of the covenantor's estate: Burch v. Coney, 14 L. T. 414.

A remainderman has no equitable claim upon damages recovered by the tenant for life upon breach of covenants for title (o), as he himself can bring an action for the injury (if any) sustained by him as owner of the reversion.

Where a bill was filed to set aside a conveyance as fraudulent, and the defendant, pendente lite, sold parts of the estate and died, and a supplemental bill was filed against his representatives and the purchasers, the latter, being evicted, were held entitled in the suit to repayment of their purchase-money by his representatives; and, as against the plaintiff, to an allowance for lasting repairs and substantial improvements (p).

The rights arising under a vendor's covenants, (other than covenants for title,) appear to be subject to the same rules as have been already considered with reference to a purchaser's covenants (q).

No apportionment of damages between tenant for life and remainderman.

Purchaser's remedies on vendor's covenants other than for title.

(m) Morse v. Tucker, ubi supra; and see Cos v. King, 9 Beav. 530; Norman v. Stiby, 9 Beav. 560.

(n) 5 Ha. 79.

(o) Noble v. Cass, 2 Sim. 343. (p) Trevelyan v. White, 1 Beav.588