Covenant

remedies. The name of an action instituted for the recovery of damages for the breach of a covenant or promise under seal. 2 Ld. Raym. 1536; F. N. B. 145; Com. Dig. Pleader, 2 V 2; Ib. Covenant, Al. The subject will be considered with reference, 1, to the kind of claim or obligation on which this action may be maintained; 2, The form of the declaration; 3, The plea; 4, The judgment.

1.

To support this action, there must be a breach of a promise under seal. Such promise may be contained in a deed-poll, or indenture, or 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; or in some cases, though it relate to something in presenti, as that the covenantor has a good title.

2 Saund. 181, b.

Though, in general, it is said that covenant will not lie on a contract tn presentt, as on a covenant to stand seised, or that a certain horse shall henceforth be the property of another.

Plowd. 308; Com. ig. Covenant, A 1; 1 Chit. Pl. 110.

The action of covenant is the peculiar remedy for the non-performance of a promise under seal, where the damages are unliquidated, and depend in amount on the opinion of a jury, in which case neither debt nor assumpsit can be supported. When the breach of the covenant amounts to misfeasance, the covenantee has an election to proceed by action of covenant, or by action on the case for a tort, as against a lessee, either during his term or aftertioned.. When the contract under seal has been enlarged by parol, the substituted will be considered, together with the original agreement, as a simple contract.

2 Watts’s R. 451; 1 Chit. Pl. 96; 3 T. R. 590. 2.

The declaration must state that the contract was under seal; and it should make profert of it, or show some excuse for the omission, 3 T. T. 151. Itis not in general requisite to state the consideration of the defendant’s promise, because a contract under seal usually imports a consideration; but when the performance of the corsideration constitutes a condition precedent, such performance must be averred. So much only of the deed and covenant should be set forth as is essential to the cause of action: although it is usual to declare in the words of the deed, each covenant may be stated as to its legal effect. The breach may be in the negative of the covenant generally, 4 Dall. R. 436, or according to the legal effect, and sometimes in the alternative; and several breaches may be assigned at common law. Damages being the object of the suit, should be laid sufficient to cover the real amount.

Vide 3 Serg. & Rawle, 364; 4 Dall..R. 436; 2 Yeates’s R. 470; 3Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45. 3.

It is said that strictly there is no general issue in this action, though the plea of non est factum, has been said by an intelligent writer to be the general issue. Steph. Pl. 174; but this plea only puts in issue the fact of sealing the deed.

1 Chit. Pil. 116.

Non infregit conventionem, and nil debet, have both been held to be insufficient..

Com. Dig. Pleader, 2 V 4.

In Pennsylvania, by a practice peculiar to that state, the defendant may plead covenants performed, and under this plea, upon he may give any thing in evidence which he might have pleaded.

4 Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105.

And this evidence may be given without notice, unless called for, 2 W.C.C.

R. 456. 4.

The judgment is that the plaintiff recover a named sum for his damages, which he has sustained by reason of the breach or breaches of covenant, together with costs.