case spark versus smith all Nov lord commissioner Eq can ab pl S c lessee for  year of a brewhouse with covenant to repair assign it by way of mortgage to b  b be never in possession brewhouse much out of repair the mortgagee though it  be his folly to take a assignment and not a underlease yet equity will not  compel he to repair post case John spark the plaintiff father seize in fee of  a brewhouse and two other house in Southwark in demise they to Richard Gwin  for seven year at pound per and with covenant that the lessee shall repair c  Gwin the lessee die Berisford marry his widow and executrix and have borrow  money of the defendant smith for secure the repayment thereof do assign the  lease of the say house to smith defeasable on the payment of the money with  interest the house be great out of repair the plaintiff bill be to compel the  defendant to discover whether the lease be not assign to he and to compel he  to perform the covenant on the lessee part the defendant by answer insist he  never be in possession Vernons chancery case nor receive any of the rend that  in Berisford give he a order on one of the tenant for pound which be pay he in  part of what be due on the mortgage and not as rend per cur it be the  mortgagee folly to take a assignment of the whole term whereby to subject  himself to the covenant in the original lease and not to take a derivative  lease of all the term but a month or week or a day as he may have do yet  inasmuch as he be only a mortgagee who never be in possession we will not  assist the plaintiff to charge he or decree he to perform the covenant in  specie but leave the plaintiff to recover at law as well as he can and  therefore dismiss the bill there be mere a entry of dismissal of the bill with  cost Reg lib b fol say vide Pilkington v Shaller all post contra on covenant  to pay rend Eaton v Jacques Doug and for the authority of that case Powell law  mort p et vide further on this head Goddard v keate ante l vol and note there  note the old case in which it have be hold that a action of covenant may be  bring by he for who benefit the covenant be make as well as by he in who name  it be make be not now consider as law dict per Eldon Lord chancellor ex part  peel Ves