& C. 256; Slingsby's case, 5 Rep. 19 a; Rolls v. Yates, Yelv. (Metcalrs ed.), 177, n. - On the supposition that this exception exists, both rule and exception might he expressed by stating the proposition thus: It is not possible, by any mere words of joinder and severance, to give the covenantees the election to sue separately or together.

By what principles it is to be determined whether a given contract is joint, or joint and several, or several, is a matter in regard to which the authorities are in a state of some confusion. A doubt, suggested by Mr. Preston in his edition of the Touchstone, and taken up by the Court of Exchequer, has at once shaken the received opinion, and occasioned at least apparent conflict between that court and the Queen's Bench. It is evident that a covenant may be considered with reference either to the covenantors or covenantees. If A, B, and C covenant with X, Y, and Z, two distinct questions arise. Shall X, Y, and '/. join, or not,

1 As where one enters into a business contract under seal, and afterwards takes a partner in his business, the latter cannot sue upon the contract. Duff v. Gardner, 7 Lansing, 165. K.

circumstances of each case, and the situation * and relaas plaintiffs? Shall A, B, and C be joined, or not, as defendants? There appears no reason for doubting that the words of joinder or severalty determine the answer of the second of these questions. The covenant, with respect to the covenantors, may belong to either one of the three classes of joint, several, and joint and several, just as the parties have chosen to say in the covenant that it shall. The language of severalty or joinder, and not the interest, is then the test of the quality of the covenant quoad the covenantors. Enys v. Donni-thorne, 2 Burr. 1190. As regards the joinder of the covenantees there is nothing a priori to prevent the existence of the same three classes to choose amongst; namely, the class where they must sue jointly, that where they must sue separately, and that where it is at their option to sue either jointly or severally. But the proposition stated above, if true, obviously removes the third alternative. The covenantees either must join or must sever. Thus the inquiry is narrowed to this: By what means is it to be determined in a given case whether they must or must not sue jointly? And this is the point, and, as it would seem, the only point upon which there is a real conflict of authorities. A series of cases, received without question by the text-writers, went upon the principle that the interest which the covenantees take by the covenant, quite irrespective of words of severalty or joinder, is in all cases the decisive test. James v. Emery, 5 Price, 529, 8 Taunt. 245; Withers v. Bircham, 3 B. & C. 254; Servante v. James, 10 B. & C. 410; Lane v. Drinkwater, 5 Tyr. 40, s. c. 1 C, M. & R. 599. But Mr. Preston denies the correctness of the rule as stated. " On the subject of joint and several covenants, that eminent lawyer, Sir Vicary Gibbs, assumed that covenants must necessarily be joint or several according to the interest. The language was, 'Wherever the interest of parties is separate, the action may be several, notwithstanding the terms of the covenant on which it is founded may be joint; and where the interest is joint, the action must be joint, although the covenant in language purport to be joint and several. James v. Emery, 5 Price, 533. With great deference, however, the correct rule is, that, by express words clearly indicative of the intention, a covenant may be joint, or joint and several, to or with the covenantors or covenantees, notwithstanding the interests are several. Salk. 393; 2 Roll Abr. 419; [possibly should be 149; see 6 Q. B. 971, n.]. So they may be several, although the interests are joint. But the implication or construction of law, when the words are ambiguous, or are left to the interpretation of law, will be, that the words have an import corresponding to the interest, so as to be joint when the interest is joint, and several when the interest is several; notwithstanding language which, under different circumstances, would give to the covenant a different effect. Slingsby's case, 5 Rep. 19; 3 Chanc. 126; 5 T. R. 522; South-cote v. Hoare, 3 Taunt. 89; 1 Wood, 537; 2 Burr. 1190." Shep. Touch. by Preston, 166. In Sorsbie v. Park, 12 M. & W. 146, Lord Abinger said: "I think the rule is plain and certain, and requires no authority; it is correctly stated by Mr. Preston in the passage in Shep. Touch. 166, which Mr. Temple cited. Where the words of a covenant are in their nature ambiguous, so that they may be construed either way, then the deed in which they are inserted supplies the mode of their construction. If it exhibit a several interest in the parties, you may construe it as a several covenant, and vice versa. But there is no rule to say that words, which are expressly a joint covenant by [to] several persons, shall be construed as a several covenant, unless there is something to lead to that construction." In this view Parke, B., concurred (p. 158). "The rule is, that a covenant will be construed to be joint or several according to the interests of the parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint." In Foley v. Addenbrooke, 4 Q B. 197 (which was decided a little before Sorsbie v. Park, but was not referred to in that case), the doubt suggested by Preston was not agitated. Mills v. Lad-broke, 7 Man. & G., 218 [1844], was an action brought by a single plaintiff. It was contended that the covenant on which the action was founded, although several in terms, ought to be treated as joint by reason of the interest of the covenantees, who were engaged in a partnership transaction. Tindal, C. J., in overruling the objection, thus adverted to the doctrine of the Court of Exchequer: "The covenant, therefore, entered into by the defendant, as representing Kings-cote, with the shareholders, is, in point tion of the parties, and the nature of the * consideration, of form, not a covenant with all the covenantees jointly, but a several covenant with each. And we think this is so clearly the case, that if the general rule as laid down by Sir Vicary Gibbs, in James v. Emery, is qualified according to the suggestion of Mr. Preston, in a note to Sheppard's Touchstone, p. 166, which was adopted by the Court of Exchequer in the case of Sorsbie v. Park, all reference to the nature of the plaintiff's interest would be unnecessary. But, assuming, on the authority of the several cases referred to in the argument, that the unqualified rule of law is, that the action shall follow the nature of the interest of the covenantees, without regard to the precise form of the covenant, so that the action must be joint where the interest in the subject-matter of the covenant is joint, and several where the interest of each covenantee is a several interest, we think, upon reference to the deed itself, the plaintiff has such several interest in the subject-matter as will enable him to sue alone on this several covenant." [His lordship then proceeds to examine the language of the deed.] It was not long before Hopkinson v. Lee, 6 Q. B. 964 [1845], afforded an opportunity for the expression of the opinion of the Court of Queen's Bench. This was an action by a trustee upon articles of agreement under seal, to which the defendant and T. were parties, of the one part, and the plaintiff and his cestui que trust, parties of the other part. The agreement recited a loan by the plaintiff to E of money in the hands of the plaintiff, belonging to the cestui que trust; in consideration of which defendant and T. covenanted severally and respectively " with and to [the plaintiff] his executors, administrators, and assigns, and also as a distinct covenant with and to [the cestui que trust] her executors, administrators, and assigns," that they, the covenantors, would pay, or cause to be paid, interest at five per cent per annum on the money lent to E. It was held that the cestui que trust ought to have been joined as a plaintiff. Lord Denman, in the opinion, referred with approbation to the rule that words of severalty do not prevent a covenant from being joint where the interest is joint, and said that Mr. Preston's exception was not grounded on any judicial authority. His Lordship added (p. 971), " We think there is no ground for Mr. Preston's apprehension that words perfectly plain and unambiguous, confining the contract expressly to one person, and excluding all others from its operation, will be strained by the law so as to comprehend these whom it took pains to exclude. The true explanation of the rule is rather this: that the whole covenant, taken together, binds to both covenantees, and not to either of them alone, though separately named in some of its words, by reason of the joint interest in the subject-matter, of the action appearing on the face of the deed itself. Such being the state of the authorities, a special case was reserved from the assizes for the Court of Exchequer, where certain persons, with whom a covenant had been made, sued the covenantors upon it. The deed, being fully set out, was found to make a covenant with the plaintiffs for themselves and others; and in Michaelmas Term, 1843, the court held, in strict conformity with all the cases, that a nonsuit ought to be entered, because those others had not been joined as plaintiffs in bringing the action, though the covenant declared on was, in its terms, made with them alone. But the plaintiff here places his whole reliance on some dicta which fell from the late Chief Baron and from Parke, B., applicable, not to that case, but only to the converse of it, which were represented as at variance with the old law. Unluckily, no refer ence was made to Anderson v. Martindale, as the court, justly thinking the general rule too clear for argument, stopped the learned counsel who supported it. Lord Abinger thought the rule plain and certain, and that it required no authority: ' it is correctly stated by Mr. Preston;' he then cites the rule with the exception. Parke, B., also thinks the correct rule is laid down by Gibbs, C. J., in James v. Emery (5 Price, 533), with the qualification stated by Mr. Preston. These learned judges could not intend to overrule Anderson v. Martindale (1 East, 497), which was not brought before them; nor, if they did, could we agree to be bound by their extrajudicially declaring such an intention where their decision itself pursued the doctrine of that case." - In Bradburne v. Botfield, 14 M. & W. 559, 572 [1845], the matter was thus left by Baron Parke: "There is no occasion to refer to the cases relating to the rule of construction, as to covenants being joint or several, according to the interest of the parties, which is perfectly well estab lished. In the case of Sorsbie v. Parke (12 M. & W. 146), Lord Abinger and myself, on referring to the established rule, are all to be looked into, to ascertain who is really interested, as laid down by Lord Chief Justice Gibbs, in the case of James v. Emery (2 Moore, 195), approved of Mr. Preston's qualification and explanation of it in his edition of the Touchstone, 166, namely, that if the language of the covenant was capable of being so construed, it was to be taken to be joint or several, according to the interest of the parties to it. Mr. Preston adds, that the general rule proposed by Sir Vicary Gibbs, and to be found in several books, would establish that there was a rule of law too powerful to be controlled by any intention, however express, and I consider such qualification to be perfectly correct, and at variance with no decided case, as it is surely as competent for a person, by express joint words, strong enough to make a joint covenant, to do one thing for the benefit of one of the covenantees, and another for the benefit of another, as it is to make a joint demise where it is for the benefit of one. I mention this, because the Court of Queen's Bench, in the case of Hopkinson v. Lee (14 Law J. (N. S.) Q. B. 104), have supposed that Lord Abinger and myself had sanctioned some doctrine at variance with the case of Anderson v. Martindale, and Slingsby's case, which it was far from my intention, and I have no doubt from Lord Abinger's, to do; it being fully established. I conceive, by those cases, that one and the same covenant cannot be made both joint and several with the covenantees. It may be fit to observe, that a part of Mr. Preston's explanation, that by express words a covenant may be joint and several with the covenantors or covenantees, notwithstanding the interests are several, is inaccurately expressed; it is true only of covenantors, and the case cited from Salkeld, p. 393, relates to them; probably Mr. Preston intended no more, and I never meant to assent to the doctrine that the same covenant might be made, by any words, however strong, joint and several, where the interest was joint; and it is this part, I apprehend, of Mr. Preston's doctrine, to which the Court of Queen's Bench objects. I think it right to give this explanation, that it may not be supposed that there is any difference on this point with the Court of Queen's Bench." - Afterwards [1849] came the case of Keightley v. Watson, 3 Exch. 716. That was an action of covenant by one plaintiff on a deed executed by one Dobbs of the first part, the plaintiff of the second part, and the defendants of the third part. The deed, after reciting that Dobbs had agreed to purchase certain land of the plaintiff, which same land Dobbs had agreed to sell to the defendants, stated that it was thereby covenanted by each party thereto, that Dobbs should sell, and the defendants should purchase, the said land, at £7,335, £900 to be paid upon the execution of the deed, and £6,435 on the 27th of November, 1851. The deed then contained the following covenant: " And the defendants for themselves, their heirs, etc, hereby covenant, with the said plaintiff, his executors, etc, and, as a separate covenant with the said Dobbs, his executors, etc, that they the said defendants, and their heirs, etc, shall, on performance of the covenant and agreement, hereinbefore contained, on the part of the said Dobbs, pay to the said plaintiff, his executors, etc, or to the said Dobbs, his executors, etc, in case the said plaintiff, his executors, etc, shall then have been paid his or their purchase-money, payable, etc, the sum of £6,435, being the remainder of the said purchase-money, on or before the 27th November, 1851. And further, that the said defendants, their heirs, etc, shall in the mean time, and until the whole of the said sum of £6,435 shall be paid off, pay to the said plaintiff, his executors, etc, interest on so much of the purchase-money as shall from time to time remain unpaid, at the rate of £5 per cent per annum, from the date of these presents," etc. Held, that plaintiff might probably sue alone for interest on the unpaid portion of the purchase-money, the covenant being several. Pollock, C. B., said: "I am of opinion that in this case the plaintiff is entitled to the judgment of the court. I consider that the inquiry really is as to the true meaning of the covenant, at the same time bearing in mind the rule,- a rule which I am by no means willing to break in upon, - that the same covenant cannot be treated as joint or several at the option of the covenantee. If a covenant be so constructed as to be ambiguous, that is, so as to serve either the one view or the other, then it will be joint, if the interest be joint, and it will be several, if the interest be several. On the other hand, if it be in its terms unmistakably joint, then, although the interest be several, all the parties must be joined in the action. So, if the covenant be made clearly several, the action must be several, although the interest be joint. It is a question of construction. What, then, in this case, did the parties mean? The words of the covenant are, 'And the said R. Watson, H. Watson, and J. Smith, for themselves, their heirs, executors, and administrators, thereby covenant with the said W. T. Keightley, his executors, administrators, and assigns, and as a separate covenant with the said A. A. Dobbs, his executors, administrators, and assigns,' that they will do so and so. If I am to put a construction upon that, I should say that it is intended to be a several or separate covenant. In the case of Hopkinson v. Lee, it seems to have been understood at one time by this court, that there were joint words. There are certainly none. But the nature of the interest, upon looking into that particular case, may possibly justify that decision. The words of this instrument are several, and its terms disclose a several interest; the covenant therefore, must be construed according to the words as a several covenant; and it appears to me that the words used by the parties were intended to create such a covenant. I think, therefore, that the plaintiff is entitled to sue alone." Parke, B., in the course of an opinion of considerable length, said: " The rule that covenants are to be construed according to the interests of the parties is a rule of construction merely, and it cannot be supposed that such a rule was ever laid down as could prevent parties, whatever words they might use, from covenanting in a different manner. It is impossible to say that parties may not, if they please, use joint words, so as to express a joint covenant, and thereby to exclude a several covenant, and that, because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interests of the parties which they intended to protect, and construe the words according to that interest. I apprehend that no case can be found at variance with that rule, unless Hopkinson v. Lee may be thought to have a contrary aspect. During the course of the argument in Bradbnrne v. Botfield. 1 certainly was under the impression, from reading the case of Hopkinson v. Lee, that there were in that case words capable of such a construction as to make the covenant a joint covenant. If that had been so, then the words subsequently introduced would not have made it several, unless there had also been an interest in respect of which it could be several, according to the rule referred to by the Lord Chief Baron, as laid down in Slingsby's case, that it is not competent to the court to hold the same covenant joint or several at the option of the covenantee." Rolfe, 15., gave the following opinion, which is cited at length as containing within a small compass a clear and able review of the whole subject: "I am of the same opinion. It seems to me that the question turns entirely upon the rule, as stated by my Brother Parke, which was distinctly laid down by this court in the cases cited, and in which I fully concur. It appears to me that Mr. Preston's suggestion was perfectly well founded, that the rule in Slingsby's case was not a rule of law, but a mere rule of construction. From that case it appears, that, if a covenant be cum quolibet et qualibet eorum, that may be either a joint or several covenant, and it will depend upon the context whether it is to be taken as a joint or several; but it cannot be both. The rule given in Slingsby's case is not very satisfactory to my mind; namely, with regard to the difficulty which arises as to the proper person to recover damages. If a party choose to enter into a covenant which creates such a difficulty, I do not see what the court has to do with it. It is clear that parties can so contract by separate deeds; why, then, should they not be able equally to do so by separate covenants in the same deed? If they so word one covenant as to make it a joint and separate covenant, had it not been otherwise decided, 1 confess 1 should have seen nothing extraordinary in holding that if they choose so to contract as to impose upon themselves that burden, and state it to be both joint and several, the court ought so to construe it. But Slingsby's case has laid down the opposite rule. I take it, that from that time, the rule has always been, - whether distinctly expressed or not, it is not necessary to consider, - but the rule has been that you are to look and see from the context what the parties meant. Applying that rule here, I see no doubt about the question. They have said, in terms, that it is to be a separate covenant. According to the other construction, if Dobbs had satisfied Keightley, and Doblis had died, Keightley might have to sue for the money coining to Dobbs, and versa; or, suppose Dobbs had not satisfied Keightley, and Keightley had died, Dobbs would have had to sue for the money coming to Keightley's representatives. The parties have expressed themselves in