I. Definition. The action of covenant is the name of one of the modern forms of action ex contractu, which lies for the recovery

of damages for the breach of a covenant, or promise made in writing under seal.1

It is one of the brevia formata of the register, and is said sometimes to be a concurrent remedy with debt, though never with assumpsit, and is the only proper remedy where the contract is under seal, and the damages are unliquidated in nature, the contract being under seal.2

- 1. Generally.

II. Nature of the Action. Covenant can be maintained only upon a writing under seal; and, if a contract is unattested by a seal, or is underwritten, redress for non-performance is by debt or assumpsit, according to the subject-matter.3

In covenant there must be a breach of some covenant contained in the instrument in suit, before an action can be maintained; and if there has been a breach of any of the covenants in a deed, the plaintiff may maintain an action in covenant, although the instrument is so defectively executed on his part that only assumpsit can be maintained against him.5

such under a bequest. The latter part of this decision was disapproved of by Jessel, M. R., in In re Parker, L. R. 15 Ch. Div. 528; 28 W. R. 823.

Where the bequest was to testatrix's second cousins of the name of S., and she had no second cousins, but had three first cousins once removed, two of whom survived, and the third had died leaving children, it was held that the two survivors and the children of the third took, to the exclusion of the children of the survivors, who were of the degree of second cousins, on the ground that it was very common for people to call children of first cousins, second cousins. Slade v. Fook, 9 Sim. 386.

But, as a rule, a first cousin once removed is not entitled to share in a fund bequeathed to second cousins. "Those only who have either the same great-grandfather or the same great-grandmother, are second cousins to each other." Corp. of Bridgenorth v. Collins, 15 Sim. 541.

Under a bequest to testator's first and second cousins and the children of his kinsman G. C., which children were his first cousins twice removed, all persons related in the degree of second cousins were admitted to take, in Charge v. Goodyer, 3 Russ. 140. See this case remarked on in In re Parker, L. R. 15 Ch. Div. 528; 28 W. R. 823.

1. Burrill's L. Dict. 397. See I Archb. Nisi Prius, 250; 1 Chitty, Pl. 115; Brown on Actions, 352; 2 Bouvier's Inst. 355, § 3443; McVoy v. Wheeler, 6 Port. (Ala.) 201; Tribble v. Oldham, 5 J. J. Marsh. (Ky) 137; Ludlum v. Wood, 2 N. J. L. (1 Penn.) 55; Bilderback v. Pouner, 7 N. J. L. (2 Halst.) 64; Gale v. Nixon, 6 Cow. (N. Y.) 55; Vicary v. Moore, 2 Watts (Pa.), 451; s. c., 27 Am. Dec. 323; Moore v.

Jones, 2 Ld. Raym. 1536; Lea v. Luthell,
Cro. Jac. 560.

2. 2 Bouv. L. Dict. (14th ed.) 405, tit. Covenant; I Chitty, Pl. 112, 113; Fitzherbert, Nat. Brev. 340, 2 Stephens' Nisi Prius, 1058.

3. McVoy v. Wheeler, 6 Port. (Ala.) 201. When Covenant lies. By the common law, an action of covenant cannot be maintained except on an instrument sealed by the party, or by his attorney duly authorized. Tribble v. Oldham, 5 J. J. Marsh. (Ky.) 137; Ludlum v. Wood, 2 N. Į. L. (1 Penn.) 55; Bilderback v. Pouner, 7 N. J. L. (2 Halst.) 64; Gale v. Nixon, 6 Cow. (N. Y.) 445; Davis v. Judd, 6 Wis. 85.

Covenant lies, generally, where the cov enantor has done an act contrary to his agreement, or fails to do or perform that which he has undertaken. 4 Dana Abr. 115. Covenant also lies where the covenantor does that which disables him from performing his contract. Heard v. Bowers, 23 Pick. (Mass.) 455; Hopkins z. Young, II Mass. 302; Grebert-Borgnis . Nugent, L. R. 15, Q. B. Div. 85; Scot v. Mayn, Cro. Eliz. 449.

Kentucky Statute. By a statute of Kentucky, passed in 1812, it is provided that all writings thereafter executed without seal, stipulating for a payment of money, or property, or for a performance of any other act, duty, or duties, shall be placed upon the same footing with sealed instruments containing like stipulations, and shall have the same force and effect; and the same species of action may be founded upon them as on the sealed instruments. Hughes v. Parks, Bibb (Ky.), 60. 4. Merriman v. Bush (Pa.), 8 Cent. Rep.

Though an equitable defence is admissible in an action of covenant, yet, as to the plaintiff, it is strictly a legal action.1

2. Form of Action. — An action in the nature of waste will lie against a lessee of a mine for an injury to the reversion, by the removal of a barrier or boundary between it and an adjoining mine, although the act complained of might also be the subject of an action for the breach of an express covenant.2

A parol agreement by one party to a covenant to waive the performance of a certain part of the covenant by the other party, is not such an alteration of the contract as will render necessary a change in the form of action.3

Where, in an agreement under seal for constructing a building, it is stipulated that no extra charges shall be made for alterations unless agreed on in writing, and the price fixed, the owner reserving the right to make them, compensating the builder therefor, the remedy for the recovery of the additional expenses incurred thereby is held to be in covenant on the contract, and not in assumpsit.*

When A., by a deed under seal, gave and granted unto B., to take effect at his death, "the sum of five hundred dollars, to have, hold, and enjoy all and singular the said sum of five hundred dollars, to the said B., his executors, etc.," and then warranted the said

Grant, Cas. (Pa.) 230; School Directors v.
McBride, 22 Pa. St. (10 Harr.) 215.
1. Lehigh Coal & Nav. Co. v. Harlan, 27
Pa. St. 429.

Agreement for Sale of Land. — An action of covenant upon articles of agreement for the sale of land, to recover the purchasemoney, is in effect an equitable proceeding to compel specific performance of the contract, and is governed by the same equitable principles. Nicol v. Carr, 35 Pa. St. 381.

2. Marker v. Kenrick, 13 C. B. 188; s. c., 17 Jur. 44; 22 L. J., C. P. 129.

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3. McCombs v. McKennan, 2 Watts & S. (Pa.) 216; s. c., 37 Am. Dec. 505. Modifying Agreement by Parol. Where there is an oral agreement modifying the original covenant in an essential point, to take advantage of such oral agreement, the covenant must be abandoned, and an action brought in assumpsit. Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. St. 429; Sherwin v. Rutland & B. R. R. Co., 24 Vt. 347.

4. Shaeffer v. Geisenberg, 47 Pa. St. 500. Contract to do Work. - Where A. cove nanted with B. to build and complete a certain house, according to specifications, for a specified price, within a specified time, and the parties further covenanted, that in case B. directed any more work to be done than was mentioned, he should pay A. what it should be worth on a reasonable valuation, it was held, that time was not of the essence of the contract; that A. could re4 C. of L.-30

cover for the work when finished, notwithstanding it was not finished within the time specified; that it was not necessary that he should procure an estimate to be made of the value of the extra work before bringing the action; and that covenant, and not assumpsit, was the proper form of action in order to recover for the extra work. Ramsburg 7. McCahan, 3 Gill. (Md.) 341. Compare Ellmaker v. Franklin Fire Ins. Co., 6 Watts & S. (Pa.) 439.

Where an agreement under seal stipulated for the construction, by the plaintiff, of a steam-engine for the defendants within a certain time, "unavoidable accidents only excepted," and the defendants' covenant to pay for the same by instalments at certain periods after the commencement and completion of the work, and an unavoidable accident happened by which the completion of the work was delayed, and the time for performance was enlarged by parol, it was held that the plaintiff must proceed by covenant, and that he cannot maintain an action of assumpsit, although the cause of action should happen after the time for performance has expired. Green v. Roberts, 5 Whart. (Pa.) 84.

An agreement to perform certain work within a limited time, under a certain penalty, has been held not a liquidation of the damages which the party is to pay for the breach of his covenant. Tayloe v. Sandiford, 20 U. S. (7 Wheat.) 13; bk. 5, L. ed. 384.

465

sum of five hundred dollars, to take effect at his death, to the said B., his executors, etc., the court held that an action of covenant lay, on this instrument, against the administratrix of A., though debt would also have lain.1

3. Election. - Covenant is the only remedy where the liability is created by an agreement under seal; but where the law creates the liability independently of the covenant, an action on the case may also be maintained. And where the obligation under seal is not direct, collateral merely, and where the damages are unliquidated, covenant is the peculiar remedy, and debt will not lie.3

2

When money is secured by an instrument under seal, to be paid in instalments, and they are not all due, no action but covenant will lie, unless there be a penalty which becomes due on the nonpayment of any one instalment, in which case debt will lie for the penalty.1

Covenant lies only between parties privy to the contract.5

Where the covenant creates the liability, no action but covenant can be maintained; but where the law creates a liability, independent of the covenant, an action on the case may also be maintained.6

1. Taylor . Wilson, 5 Ired. (N. C.) L.

214.

2. Luckey v. Rowzee, I A. K. Marsh. (Ky.) 295.

3. Several Covenantors.. - Where several covenantors bind themselves, or some one of them, to pay a certain sum of money, an action of debt cannot be maintained against one of them only. Harrison v. Matthews, 2 Dowl. N. S. Bail, 318. See also Montague v. Smith, 13 Mass. 405; Tileston v. Newell, 13 Mass. 406.

And when a lease was made by several owners of a house, reserving rent to each in proportion to his interest, and there was a covenant on part of the lessee that he would keep the premises in good repair, and surrender them in like repair, this covenant was held to be joint as respects the lessors, and that one of them (or two representing) cannot maintain an action in covenant for the breach of such cov

enant by the lessee. Calvert v. Bradley, 57 U. S. (16 How.) 580; bk. 14, L. ed. 1066.

4. Windsor v. Gover, 2 Saund. 303, note b. Where Debt is payable in Instalments. But it is said that where the sums payable at different times are independent sums, and not instalments of a larger sum, debt lies as well as covenant. See Comyn, Dig. tit. Action, F.

Where 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, although there has been

no legal demand of the specific articles. Stevens 7. Chamberlain, I Vt. 25.

5. Action on Covenant by Assignee.. Thus, a personal covenant cannot be set up in a suit by the assignee of the covenantor or covenantee. Lyon v. Parker, 45 Me. 474.

But where the covenant runs with the land, the action may be brought by an assignee. 2 Bouv. Inst. 356, § 3445. See infra, KINDS OF COVENANTS.

6. Luckey . Rowzee, 1 A. K. Marsh. (Kv.) 295.

When Covenant the Only Action.Where tenants in common of a watercourse, dam, and several mills, made partition, and mutually covenanted to keep in repair certain portions of the dam respectively, it was held that an action by one against the other for failure to repair should be covenant, and not case. Wilbur v. Brown, 3 Denio (N. Y.), 356.

A person who has been compelled to pay money, in consequence of a breach of covenant by another, may recover it back by action of covenant, or assumpsit. Douglass v. Waer, Anth. (N. Y.) 130.

The evidence of a contract, to warrant a slave sound, consisted of an unsealed writing, executed since 1812, in Virginia. It was held in a suit brought in Kentucky, that the writing, though made, and, according to its face, to be performed, in Virginia, came within the Kentucky Act of 1812, relating to written instruments, and that covenant, not assumpsit, was the appropriate remedy upon it. Steele v. Curle, 4 Dana (Ky.), 381.

An action of debt will not lie upon articles of agreement to pay a certain sum in bank notes, for they are not money. The action should be covenant, in which the plaintiff can recover his 'real damages, according to the value of the bank notes.1

Covenant, and not assumpsit, should be brought to enforce the liability of one who assigns a specialty by an indorsement under seal.2

III. When Maintainable. 1. In General. Covenant can be maintained only upon a writing under seal,3 and against a person who, by himself or some other person duly authorized, acting in his behalf, has executed a deed under seal. But the covenant must impose an affirmative obligation.5

4

In the case of covenant under seal, the action of covenant may be maintained, whether such covenant be contained in a deed-poll or an indenture, or be expressed on the face of the instrument, or implied by law from the terms thereof.7

6

1. Scott v. Conover, 6 N. J. L. (1 Halst.)

222.

2. Somerville v. Stephenson, 3 Stew. (Ala.) 271.

3. McVoy v. Wheeler, 6 Port. (Ala.) 201. When Covenant lies. - Covenant lies on an instrument under seal, generally, when the covenantor has done some act contrary to his general agreement, or failed to perform that which he has undertaken, or does that which disables him from performing his contract, which he has undertaken. In a case of reciprocal covenants, the same rule applies to the covenantee. See Heard 2. Bowers, 23 Pick. (Mass.) 455; Hopkins v. Young, II Mass. 302; Grebert-Borgnis 7. Nugent, L. R. 12 Q. B. Div. 85; Scot v. Mayn, Cro. Eliz. 449; 4 Dana Abr. 115. Written Obligation. - Debt or covenant is the appropriate remedy on a writing obligatory. French . Tunstall, Hempst.

C. C. 204.

Covenant is the only remedy where 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. Luckey v. Rowzee, I A. K. Marsh. (Ky.) 295.

An action for a breach of covenant must be prosecuted in the name of the real party in interest, the person entitled to the damages. Sinker v. Floyd, 104 Ind. 291; S. C., 2 West. Rep. 218.

4. See Bassett v. Jordan, 1 Stew. (Ala.) 352; Somerville v. Stephenson, 3 Stew. (Ala.) 271; Powers v. Ware, 2 Pick. (Mass.) 451; Bell v. Curtis, 2 N. J. L. (1 Penn.) 142; Powell v. Clark, 3 N. J. L. (2 Penn.) 517; Rees v. Overbaugh, 6 Cow. (N. Y.) 746; Vicary v. Moore, 2 Watts (Pa.), 451; S. C., 27 Am. Dec. 323; United States v. Brown, 1 Paine, C. C.422.

creating a purely negative restriction is not enforceable; covenants must "touch and concern or "support," and be for the "benefit of the estate;" unusual incidents cannot attach to land. Norcross v. James, 140 Mass. 188; s. c., I New. Eng. Rep. 327. 6. See I Rol. Abr. 517, pl. 40.

Deed-Poll. It has been said that the technical action of covenant cannot be maintained against a grantee in a deedpoll, because he did not seal the deed. Hinsdale v. Humphrey, 15 Conn. 432; Nugent v. Riley, 1 Metc. (Mass.) 167; s. c., 35 Am. Dec. 355; Newell v. Hill, 2 Metc. (Mass.) 180; Goodwin v. Gilbert, 9 Mass. 510; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 38; Maule v. Weaver, 7 Pa. St. 329; Johnson 2. Muzzy, 45 Vt. 419; Burnett 2. Lynch, 5 Barn. & C. 589. But a contrary doctrine has been held in New Jersey in a well-considered case. See Finely v. Simpson, 22 N. J. L. (2 Zab.) 331; s. c., 53 Am. Dec. 252.

A statute in Pennsylvania, passed April 22, 1850, gives to the owner of a groundrent the remedy by action of covenant, whether the premises out of which the rent issues be held by deed-poll or otherwise.

In those of the States of the Union where the common law still prevails, it is held that the action on the grantor's covenant in a deed-poll must be assumpsit, since the agreement or covenant is not one under his seal, Hinsdale v. Humphrey, 15 Conn. 432; Nugent v. Riley, 1 Metc. (Mass.) 117; s. c., 35 Am. Dec. 355; Newell v. Hill, 9 Metc. (Mass.) 180; Goodwin v. Gilbert, 2 Mass. 510; Maule v. Weaver, 7 Pa. St. 329;-but in all those States that have adopted codes, the common-law distinction has passed away with the abolition of all forms of actions. Atlantic Dock Co. v. Leavitt, 54 N. Y. 38. 7. See Frost v. Raymond, 2 Cai. (N. Y.)