This was a suit originally commenced in the justices’ court for this county, to recover possession of a messuage, which was leased by the plaintiff to the defendant, on the ground, that the lease had been determined by its own limitation before the commencement of the action ; and if the lease had been so determined, the action was rightly commenced in the justices’ court, according to the Rev. Sts. c 104, §§ 2, 3, 4.
The premises were demised for the term of ten years from the 1st day of April, 1844. But the lessee agrees by the indenture to deliver up the premises, and all the buildings and repairs put thereon by him, on three months’ notice by the lessor, paying him the sum of $250.
It was proved at the trial, that the plaintiff did give the *288notice required to the defendant, and offered to pay him the sum of $250, which the defendant declined to receive.
It is contended for the plaintiff, that, by this notice and offer, the lease was determined by its own limitation, at the end of three months from the notice and offer ; but the defendant contends, that the clause cannot be so construed, it being, by the terms of it, a mere covenant, for the breach of which he is responsible in damages.
Some remarks were made by the defendant’s counsel, as to the question, whether this clause in the lease might be construed as a condition. But the plaintiff’s counsel does not rely on such a construction; and it is very clear it would not avail him, if it could be so construed ; for there is no right of entry reserved for the breach of such a condition; and if there were, the lease would not be determined before the lessor’s entry for the breach. The question, therefore, is, whether the clause in question is a covenant, or a limitation of the lessee’s estate. And this depends on the language of that clause. The apt words of limitation are while, as long as, until, during, &c.; as, when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until, out of the rents and profits, he shall have made £500, and the like ; or if it is declared in the lease, that the same shall expire on the happening of any contingency. In such cases, whenever the contingency happens, the lease is determined by its own limitation, without any entry or other act to be done by the lessor. 2 Bl. Com. 155; 4 Kent, 132; Fifty Associates v. Howland, 11 Met. 99, 102.
But there is no such language in this lease; and we think it very clear, that the clause relied on by the plaintiff, as words of limitation, are mere words of covenant. They are so in express terms; and if the meaning were doubtful, they should rather be construed as a covenant, than as a limitation or a condition. Chancellor Kent, in his Commentaries, says. “ If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter *289construction; for a covenant is far preferable to [for] the tenant ; and equity will not enforce a covenant embracing a hard bargain; and at law, there can be no damages without an injury.” 4 Kent, 131.
These remarks would apply with great force to the present case, if the construction of the lease were doubtful; for a harder case on the part of the defendant can hardly be imagined, if the clause in question could be construed as a conditional limitation.
The defendant was bound to build a good and substantial building, two stories high, with rooms finished in the second story ; and if the said clause were to be construed as a limitation of the defendant’s estate, he would be bound to deliver up the premises in three months after the building was completed, and a notice and offer to pay $250.
But there is no doubt of the construction of the clause in question. It is a covenant in express terms, and cannot be otherwise construed.
The case of Wilson v. Phillips, 2 Bing. 13, cited by the defendant’s counsel, is precisely similar to this case. There was an agreement by the lessee in that case, that if the lessor should want any part of the demised premises, then he, the lessee, would give up such part to the lessor, by his making a proportional abatement of the rent, &c. It was held, that this was a covenant, and not a condition ; for something was to be done on both sides — the lessee to give up on request, and the lessor to make an abatement of the rent.
But we think, whether something was to be done on both sides or not, the clause in the lease in that case, which was similar to the clause in this, on which the plaintiff relies, could not be otherwise construed than as a covenant.
We are therefore of opinion, that the lease in this case has not been determined ; and that if there has been a breach of the defendant’s covenant, the plaintiff’s only remedy is by cn action of covenant broken:
Exceptions sustained.