close of land and a decoy pond, to which wild fowl used to resort, and the plaintiff, at his own costs, had procured decoy ducks, nets, and other engines, for decoying and taking the wild fowl, and enjoyed the benefit in taking them; yet the defendant, intending to injure plaintiff in his decoy, and to drive away the wild fowl, and deprive him of his profit, discharged guns against the decoy pond, whereby the wild fowl were frighted away and forsook the pond. Upon not guilty pleaded, a verdict was found for the plaintiff, and 20%. damages. On motion in arrest of judgment, Holt, C. J. observed that the action was maintainable; that although it was new in its instance, yet it was not new either in the reason or principle of it. For, 1st, the using or taking a decoy was lawful; 2ndly, this employment of his ground, to that use, was profitable to the plaintiff, as was the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken, is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. The C. J. added, that it had been objected, that the nature of the wild fowl was not stated; but this was not necessary; for the action was not brought to recover damage for the loss of the fowl, but for the disturbance. In a special action on the case, the declaration stated, that plaintiff's wife, unlawfully and against his consent, went away from him, and continued apart from him a long time, and that, during her absence, a large estate, real and personal, having been devised for her separate use, she thereupon was desirous of being reconciled, and of cohabiting with plaintiff, her husband; but that the defendant persuaded and enticed her to continue apart from the plaintiff, which she accordingly did until her death; whereby the plaintiff lost the comfort and society of his wife, and her assistance in his domestic affairs, and the profit and advantage of her fortune. After verdict for the plaintiff, with 3000l. damages, on motion in arrest of judgment, it was objected, that there was not any precedent of any such action as this. Litt. q Winsmore v. Greenbank, Willes, 577. s. 108. and 1 Inst. 81. b. were cited; but Willes, C. J. said that the general rule there mentioned was not applicable to the present case; that it would have been so, if there had never been any special action on the case before; that this form of action was introduced for this reason, that the law would never suffer an injury and a damage without a remedy; but that there must be new facts in every special action on the case (5). (5) See Ashby v. White, Lord Raym. 957, Pasley v. Freeman, 2 T. R. 51. and Chapman v. Pickersgill, 2 Wils. 146. which last case was an action on the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff; Pratt, C. J. (in answer to the objection of novelty,) said, that this was urged in Ashby v. White, but he did not wish ever to hear it again; that this was an action for a tort; torts were infinitely various, not limited or confined; for there was not any thing in nature which might not be converted into an instrument of mischief, and this of suing out a commission of bankrupt falsely and maliciously was of the most injurious consequence in a trading country. Durnford's note. Willes, 581; see also Hargreave's Co. Lit. 81. b. n. (2). CHAP. XIII. COVENANT. I. Of the Action for Breach of Covenant. III. Of the different Kinds of Covenants: 1. Express, and herein of express Covenants running with the Land. 2. Implied. 3. Joint and Several. 4. Void and Illegal. 5. For quiet Enjoyment. 6. Not to assign without Licence. IV. By whom the Action of Covenant may be maintained: 1. Heir. 2. Executor. 3. Assignee. V. Against whom the Action of Covenant may be maintained: 1. Heir. 2. Executor. 3. Assignee. VI. Of the Declaration, and herein of dependent Covenants, Conditions precedent, and independent Covenants. VII. Of the Pleadings: 1. Accord and Satisfaction. 2. Eviction. 3. Infancy. 4. Levied by Distress. 5. Nil habuit in tenementis. 6. Non est factum. 7. Non infregit conventionem. 8. Performance. 9. Release. 10. Set off. VIII. Payment of Money into Court. IX. Evidence. X. Judgment. I. Of the Action for Breach of Covenant. COVENANTS are of two kinds, 1. Express. 2. Implied, or covenants in law. An express covenant is an agreement entered into by deed indented or deed poll, between two or more persons, for the performance of certain acts, or for the forbearance to do certain acts. An implied covenant, or covenant in law, is an agreement raised by implication of law between two or more persons in a deed indented or deed poll, from certain technical expressions used therein. For the violation of agreements of this kind (1) the law has provided a remedy by action of covenant, wherein the party injured may recover damages (2) in proportion to the loss sustained. A party bringing covenant on a deed poll (1) In F. N. B. 4to. Ed. 343. A. it is said that in London a man shall have a writ of covenant without a deed, for covenant broken, and it is so said by Vavasor, Serjt. in 22 Edw. 4. 2. a. cited in Comyn's Dig. London, N. 1. who refers to Priv. Lon. 149. in support of the same position. (2) Where it is necessary to enforce the performance of any agreement in specie, as the conveyance of land, execution of deeds, &c. or what is termed a specific performance, application must be made to a court of equity; for in the action of covenant damages only for the non-performance can be recovered. must be named therein; for where, upon oyer of the deed poll, it appeared, that the defendant promised to do a certain act, without saying that he promised the plaintiff, it was holden that an action would not lie. Covenant will lie on letters patent, although there is not any counterpart sealed by the lessee, who is to be charged. If A., for a valuable consideration, promises, by deed, not to do a certain act, an action of covenant may be maintained, for the breach of such promise but an action on the case will not lie. As where A. recovered a debt against B. and B. paid the condemnation money to A., whereupon A. by deed, released all actions, executions, &c. to B. and in the same deed promised to discharge all executions against B. upon the same judgment, and afterwards sued out execution thereon: the court were of opinion, that the promise being by deed, B.'s remedy was by an action of covenant, and not an assumpsit (3). An action of covenant is not within the stat. 3 W. and M. c. 14.4 which makes the devisee chargeable jointly with the a Green v. Horne, Salk. 197. Comb. 219. S. C. b Bret v. Cumberland, Cro. Jac. 399. 521, fully stated, post. c Bennus v. Guyldley, Cro. Jac. 505. S. C. and S. P. by the name of Bemishe v. Hildersley, said to have been adjudged, 1. R. A. 517. (A) pl. 3. d Wilson v. Knubley, 7 East, 128. (3) Although it is a general rule that assumpsit will not lie, where there is a remedy of a higher nature, yet there are some exceptions to this rule; as where two persons entered into articles of partnership for a term of years, and the deed contained a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership; and they dissolved the partnership before the years were expired, and accounted together, and struck a balance, which was in favour of the plaintiff, including several items not connected with the partnership, and the defendant promised to pay it; it was holden, that assumpsit would lie on such express promise. And Buller, J. observed, that if no other articles had been introduced into the account, but those relating to the partnership, he should still have been of opinion, that assumpsit might have been maintained; for the question then would have been, whether a previous partnership being dissolved, and an account settled, was or was not, in point of law, a sufficient consideration for a promise. He had no difficulty in saying, that it was. Foster v. Allanson, 2 T. R. 479. See Rackstraw v. Imber, Holt's N. P. C. 368. and Fromont v. Coupland, 2 Bingh. 170. A stronger exception, however, to the general rule abovementioned, will be found in the case of Nurse v. Craig, ante, p. 270. VOL. I. Bulstrode v. Gilburn, Str. 1027. |