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3443. In the next place we will treat of a third kind of action, arising ex contractu. This is the action of covenant instituted for the recovery of damages for the breach of a covenant, or promise made in writing and under seal, for by the common law this action cannot be sustained on an instrument not sealed by the party or his attorney duly authorized.

It is proper here to point out a distinction between this action and the actions of assumpsit or debt. It is true covenant is brought for the recovery of damages, like assumpsit, but the latter is not in general sustainable where the contract was originally under seal, or where a deed has been taken in satisfaction of a parol agreement; and though debt may be sustained upon a simple contract, a specialty, a record, or a statute, yet it lies only for a sum of money in numero, and not where the damages are unliquidated and incapable of being reduced to a certainty by an averment.

In treating of this action we shall consider successively on what kind of claim or obligation this action may be sustained, the form of the declaration, the pleas and issue, the evidence, and the judgment.

3444. It lies in all cases where there is a breach of a covenant, whether such covenant be contained in an indenture, or deéd-poll, or any other writing under seal; whether it be express or implied by law from the terms of the deed, or for the performance of something in futuro, or that something has been done ;? it may be not only for something which is past or something future, but also for something in presenti, as, that the covenantor has a good title, and in this

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Davis v. Judd, 6 Wisc. 85; Gale v. Nixon, 6 Cow. N. Y.445; Ludlum v. Wood, 1 Penn. 55; Tribble v. Oldham, 5 J. J. Marsh. Ky. 137 ; Bilderback v. Pouner, 2 Halst. N. J. 64. In Kentucky, by the statute of 1812, all writings thereafter executed without seal stipulating for the payment of money or property, or for the performance of any other act, duty or duties, shall be placed upon the same footing with sealed writings containing the like stipulations, and to all intents and purposes shall have the same force and effect, and the same species of action may be founded on them, as if sealed. Hanley v. Rankins, 4 T. B. Monr. Ky. 556; Hughes v. Parks, 4 Bibb, Ky. 60. Comyn, Dig. Covenant, A.

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case when he has not such title the covenant is broken as soon as signed and delivered; as a general rule, however, covenant will not lie on a contract in presenti, as on a covenant to stand seised, or that a certain horse shall thenceforth be the property of another.

Covenant is sometimes a concurrent remedy with debt, and in some cases it is a peculiar remedy.

It is concurrent with debt on a direct contract under seal for the payment of a stipulated sum of money, either by way of penalty or otherwise ;' it lies on a penal bond, but the breach assigned must be the non-payment of the penalty, and not of the condition of the bond, separated from the penal or obligatory part;covenant is also a proper remedy for the breach of a contract under seal for the payment of a certain sum of money to be discharged in good current bank notes. It is the only remedy when the liability is created by an agreement under seal; but when the law creates the liability, independently of the covenant, an action on the case may also be maintained.

3445. Covenant is the peculiar remedy where the obligation under seal is not direct, but collateral merely, and where the damages are unliquidated and debt will not lie; thus, where several covenantors bind themselves, or some one of them, to pay a certain sum of money, debt cannot be maintained against one of them only. So where money is secured by an instrument under seal, to be paid by instalments, and they are not all due, no action but covenant will lie unless there be a penalty which becomes due on the payment of any one instalment, in which case debt will lie for the penalty.10 And when part of an entire sum due on a sealed instrument is payable by instalments at fixed periods and the residue in specific articles on demand, covenant will lie for the instalments, though there has been no legal demand of the specific articles."

After a lessee has assigned his lease and the lessor has accepted rent from the assignee, debt cannot be maintained against the lessee for any future rent; covenant is his only remedy. 12

Covenant lies only between the parties privy to the contract. A personal covenant cannot be set up in a suit by or against the assignee of the covenantor or covenantee." But if the covenant runs with the land, the action may be brought by any assignee of the covenantee's title.

3446. Having considered the cases where covenant may and where it must be brought, let us now, on the other hand, examine those in which it cannot be maintained. In general, it cannot be supported unless the contract is under seal ; when it is by parol, the plaintiff must proceed by assumpsit, debt, or other suitable action. Covenant cannot be supported on a lease executed by the lessor only, though the lessee enters and enjoys the possession ;' but it will

14 lie, although the covenantee did not sign the indenture in which he is named as a party. This action cannot be maintained by one partner against another

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Sharrington 1. Strotton, Plowd. 308.
* Bassett v. Jordan, 2 Ala. 352.
5 United States v. Brown, Paine, C. C. 422.
6 Huddle v. Worthington, 1 Ohio, 423.
Jackson v. Waddill, 2 Ala. 579; Scott v. Conover, 1 Halst. N. J. 222.
Luckey v. Rowzee, 1 Marsh. 295.
• Harrison v. Matthews, 2 Dowl. n. s. Bail, 318.

10 Dean of Windsor v. Gover, 2 Saund. 303, note b; Comyn, Dig. Action, F; but if the sums payable at different times be independent sums, and not instalments of a larger sum, debt lies as well as covenant. 11. Stevens v. Chamberlain, 1 Vt. 25.

12 Thursby v. Plant, 1 Saund. 241. 18 Lyon v. Parker, 45 Me. 474. 14 Trustees v. Spencer, 7 Ohio, 151. 16 Lucke v. Lucke, Lutw. 305; Comyn, Dig. Covenant, A, 1.

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on the articles of partnership, though under seal, to compel the payment of the balance due to the partnership from one of the partners, the proper remedy being an action of account or a bill in chancery.16

When the contract is under seal, and, afterward, it is varied in its terms, in a material part, by a parol agreement, such substituted contract must be the subject of an action of assumpsit, and not of covenant." But a parol agreement by one party to a covenant to waive the performance of part of the agreement by the other party is not such an alteration of the contract as will render necessary a change in the form of the action.18

3447. The declaration must state that the contract was under seal, and it should not only state such a contract, but its delivery must also be alleged ; and it should also make a profert of it, or show some excuse for the omission. 20 It is not, in general, necessary to state the consideration of the defendant's covenant, for the seal is of itself evidence of consideration ; but when the performance of the consideration constituted a condition precedent, then such performance must be averred, or the plaintiff must aver that he was prevented by the other party.22

Only so much of the deed and covenant should be set forth as is essential to the cause of action, and each may be stated according to its legal effect, though it is more usual to declare in the words of the deed ; and implied covenants may be set forth in the declaration in the same manner as if they were expressed in the instrument.23

The breach may be assigned in the negative words of the covenant where such general assignment amounts to a breach ; but enough must be placed upon the record to show that the covenant has been broken, and that the plaintiff has a cause of action.? A breach may also be assigned according to the substance, though not according to the letter of the covenant. It may be in the alternative, or there may be several breaches in the same declaration; and if one be well assigned, the declaration cannot be held ill on general demurrer. 26

The action being brought to recover damages for the non-performance or breach of a covenant under seal, they must be laid in the declaration sufficiently high to cover the real amount.

3448. Strictly speaking, there is no general issue in an action of covenant, for non est factum merely denies the deed, and only puts in issue the fact of its

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16 Niven v. Spickerman, 12 Johns. N. Y. 401.

17 Vicary v. Moore, 2 Watts, Penn. 456; Heard v. Wadham, 1 East, 630; Littler v. Holland, 3 Term, 590; Ellmaker v. Franklin Fire Ins. Co., 6 Watts & S. Penn. 443; Vicary v. Moore, 2 Watts, Penn. 451.

18 McCombs v. McKennan, 2 Watts & S. Penn. 216.
19 Perkins v. Reeds, 8 Miss. 33.
20 Read v. Brookman, 3 Term, 151.

11 Goodwin v. Lynn, 4 Wash. C. C. 714; Keatly v. McLaugherty, 4 Mo. 221; Knox v. Rinehart, 9 Serg. & R. Penn. 45; Harrison v. Taylor, 3 A. K. Marsh. Ky. 168; Gardiner v. Corson, 15 Mass. 503; West v. Emmons, 5 Johns. N. Y. 179.

22 Fannen v. Beauford, 1 Bay, So. C. 237 ; Clandennen v. Paulsel, 3 Mo. 230.

23 Grannis v. Clark, 8 Cow. N. Y. 36; Barney v. Keith, 4 Wend. N. Y. 502. It has been held in Pennsylvania that where a mistake has been made in drawing articles of covenant, the plaintiff might declare upon the articles as they should have been drawn, according to the mutual agreement of the parties, with proper averments, showing the mistake in the original. Gower v. Sterner, 2 Whart. Penn. 75. The practice of merely setting out the deed as part of the pleading is bad. McCampbell v. Vastine, 10 Iowa, 538.

24 Randel v. Chesapeake Co., 1 Harr. Del. 151; Camp v. Douglas, 10 Iowa, 586. 25 Potter v. Bacon, 2 Wend. N. Y. 583. 28 Comyn, Dig. Pleader, 2, V, 2, 3: McCoy v. Hill, 2 Litt. Ky. 374. See Thome v. Haley, 1 Dan. Ky. 268.

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sealing and execution, and when pleaded, simply admits all material averments in the declaration.”

Of the special pleas the following are the most common:

Non infregit conventionem merely denies that the defendant has broken the covenants, but does not deny the deed; it is not, therefore, the general issue, still it is a plea in bar. But when the breach is in the negative, then the plea of non infregit conventionem is bad, because, both the breach and the plea being in the negative, there can be no issue.30 Omnia

performavit is a good plea in bar where all the covenants are in the affirmative 31

Covenants performed is pleaded in some states. In Pennsylvania, it admits the execution of the instrument, and supersedes the necessity of other proof, but it does not admit that the opposite party had performed his agreement. In Alabama, on the contrary, a plea of covenants performed does not admit the deed; the plaintiff is required to prove his cause of action as if no such plea had been filed. In Illinois, the plea of covenants performed, if not sustained, admits the plaintiff's right to recover only nominal damages.*

The defendant may plead any other matter specially, as infancy, a release, duress, gaming, and the like, which cannot be given in evidence unless pleaded; the defendant must answer all the breaches laid in the declaration; and if he pleads to the whole action a plea which is good as to one breach only, such plea is bad on demurrer.3

3449. As in this action there is no general issue which traverses the whole declaration, the plaintiff is not required to prove the whole ; that is, he is not required to prove what is admitted by the plea. The evidence is, therefore, confined to the particular issue raised by the special plea.

When the deed is not put in issue by the plea of non est factum, the defendant, at common law, admits so much of the deed as is spread upon the record; if other parts of the deed are required to support the plaintiff's case, he must , prove them in the usual way.36 When the defendant has pleaded non est factum the plaintiff must, of course, prove the allegations contained in his declaration, and prove the formal execution of the instrument on which he has declared. This is done by the production of the deed, and proving by the attesting witnesses, when they can be had, that it was signed, sealed, and delivered by the obligor; and if any suspicion should arise from any alterations or erasures made in it, these must be removed before the deed can be read in evidence. 37

To prove the signing and sealing it is not requisite that the witnesses should

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» In Ohio, under a statute, non est factum is a plea of the general issue in covenant, to which a notice of set-off may be appended. Granger v. Granger, 6 Ohio, 41.

28 McNeish v. Stewart, 7 Cow. N. Y. 474; Thomas v. Woods, 4 Cow. N. Y. 173; Cooper v. Watson, 10 Wend. N. Y. 202; Norman v. Wells, 17 Wend. N. Y. 136.

Phelps v. Sawyer, 1 Aik. Vt. 150; Bendor v. Fromberger, 4 Dall. 436; Roosevelt v. Fulton, 7 Cow. N. Y. 71. 30 Bacon, Abr. Covenant, L.

31 Bailey v. Rogers, 1 Me. 189. 82 Neave v. Jenkins, 2 Yeates, Penn. 107; Roth v. Miller, 15 Serg. & R. Penn. 105. So in Tennessee, evidence in avoidance of the deed cannot be admitted under a plea of covenants performed. Kincaid v. Brittain, 5 Sneed, Tenn. 119. 33 Bryant v. Simpson, 4 Ala. 339.

34 Reed v. Hobbs, 3 Ill. 297. 35 Brackenbridge v. Lee, 3 Bibb, Ky. 330; Muldrow v. McCleland, 1 Litt. Ky. 5. 36 Williams v. Sill, 2 Campb. 519.

37 Whether interlineations and erasures in a deed were made before or after its execution is a question of fact for the jury; and when the alteration is against the interest of the party claiming under it, the presumption is that it was made before or at the time of its execution. Heffelfinger v. Shutz, 16 Serg. & R. Penn. 44. See, as to the effect of alteration of instruments, Van Amringe v. Morton, 4 Whart. Penn. 382; Arrison r. Harmstead, 2 Penn. St. 191 ; Whithers v. Atkinson, 1 Watts, Penn. 236; Bacon, Abr. Evidence, F.

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have seen either done by the covenantor; it is sufficient if he showed it to them, signed and sealed, and requested them to subscribe it as witnesses. When there are several obligors or grantors, it is sufficient if there is but one piece of wax with several impressions, or when there is but one seal, it is sufficient; for the covenantors or grantors following the first will be presumed to have adopted his seal.39

Evidence must also be given of the delivery of the deed. This is done by showing that the grantor or obligor parted with the dominion over it with an intent that it should pass to the grantee or obligee; it may be proved, like most facts in pays, by direct evidence or by circumstances. In general, if a

40 deed be found in the hands of the grantee, it will be presumed to have been delivered;" on the contrary, if found in the hands of the grantor or obligor, no delivery will be presumed.2

The registry of a deed at the request of the grantor for the use of the grantee and the assent of the latter to the same is evidence of delivery.43 The act of recording a deed is not conclusive evidence of delivery, 4 and consequently it may

be rebutted.45 Whether the deed was signed, sealed, and delivered by the grantor or obligor is a question of fact for the jury; under the issue of non est factum, therefore, the defendant may prove that the deed was delivered and still remains as an escrow, 46 or that it was void from the beginning; for example, that it is a forgery, or it was obtained by fraud, or executed while the defendant was insane or intoxicated; or that it became void by subsequent acts, as by being materially altered or canceled by tearing off the seal; or that the deed was delivered to a stranger for the use of the plaintiff and that he refused it ;47 or that it was never delivered at all.48

3450. When covenants performed have been pleaded, the burden of proof lies on the defendant, for whenever the plea is in avoidance of the deed the defendant has the onus probandi cast upon him.Under the plea of “covenants performed, with leave to give the special matter in evidence,” the defendant may in Pennsylvania give evidence of any matter he might have pleaded and which in law can protect him, and this without notice of special matter unless called for.50 But under the plea of covenants performed the defendant cannot avail himself of the difficulty of performing his covenants in excuse.51

3451. The plaintiff must also prove the breach as laid in the declaration, and it is no excuse to the defendant that he has been unable to perform his covenant if before the time of performance he disabled himself from so doing ;62 as, where a brewer covenanted to deliver grains from his brew-house, and before

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38 Munns v. Dupon, 3 Wash. C. C. 42.
39 Bowman v. Robb, 6 Penn. St. 302. See 9 Am. Jur. 290, 297.

2 Greenleaf, Ev. 297 ; Long v. Ramsay, 2 Serg. & R. Penn. 72; Brown v. Bank of Chambersburg, 3 Penn. St. 187.

41 Dunn v. Games, 1 McLean, C. C. 321; Green v. Yarnall, 6 Mo. 326. 42 Hatch v. Haskins, 17 Me. 391.

43 Hedge v. Drew, 12 Pick. Mass. 141. * Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips' Academy, 12 Mass. 456. 45 Gilbert v. North Am. Ins. Co., 23 Wend. N. Y. 43. 46 Wheelwright v. Wheelwright, 2 Mass. 447. See Blight v. Schenck, 10 Penn. St. 285; Union Bank v. Ridgely, 1 Harr. & G. Md. 324.

47 Read v. Robinson, 6 Watts & S. Penn. 329.
48 Roberts v. Jackson, 1 Wend. N. Y. 478; Gardner v. Collins, 3 Mas. C. C. 90.

49 He has therefore the right to open and close. Norris v. Ins. Co. of N. Amer., 3 Yeates, Penn. 84; Scott v. Hull, 8 Conn. 296.

50 Webster v. Warren, 2 Wash. C. C. 456; Rangler v. Morton, 4 Watts, Penn. 265; Bender v. Fromberger, 4 Dall. 439.

51 Stone v. Dennis, 12 Ala. 231.
62 Heard v. Bowers, 23 Pick. Mass. 455; Hopkins v. Young, 11 Mass. 302.

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