III. COVENANT. money demand, where there is an express or implied contract in an instrument under seal to pay it; but in general debt is the preferable remedy, as in that form of action the judgment is final in the first instance, if the defendant do not plead. When the Covenant is the peculiar remedy for the non-performance of a contract peculiar or best remedy. under seal, where the damages are unliquidated, and depend in amount on the opinion of the jury, in which case we have seen that neither debt or assumpsit can be supported (s) (1). It is the proper remedy where an entire sum is by deed stipulated to be paid by instalments, and the value is not due, nor the payment secured by a penalty (t) (2). And it is frequently more advisable to proceed in coyenant on a lease, &c. for general damages than to declare in debt, for a penalty, securing the performance of a covenant; because, if the party elect to proceed for the penalty, he is precluded from afterwards suing for general damages; and he cannot, in case of further breaches, recover more than the amount of the penalty, and in many cases before he can issue execution, he must proceed under the statute 8 & 9 W. 3, c. 11; whereas if he proceed in covenant for every repeated breach, he may ultimately recover beyond the amount of the penalty (u) (3). And where rent is due upon a lease, and there has also been another breach, as for not repairing, for which the plaintiff claims unliquidated damages, covenant is preferable to debt; because in the former, both the breaches of covenant may be included in one action, and damage for the whole demand may be recovered. When not On the other hand, covenant cannot in general be supported unless the sustainable. contract were under seal, and when it is by parol the plaintiff must proceed by action of assumpsit (x) (4). But by special custom in London (y) and Bristol (z), covenant lies, although the contract be not under seal. So against the lessee or patentee of the crown, a covenant may be [119] supported, although he did not seal the lease, or any counterpart of the lease, it being matter of record, and the lessee's acceptance of the demise being in such a case as obligatory as an express covenant (d). A peculiar case is put in Co. Lit. (e); viz. that if a lease be made to A. and B. by indenture between the landlord of the one part, and A. B. of the other part, (s) Ante, 98, 112, 113. (t) Com. Dig. Action, F.; 2 Saund. 303, n. b. (u) Burr. 1087, 1351; Lord Raym. 814; Dougl. 97; 13 East, 347, 348. (x) Ante, 98, 99. (y) 22 E. 4, 3 a.; Priv. Lond. 149, F. N. B. 146, A.; Com. Dig. London, n. 1. (d) Cro. Jac. 240, 899, 521; Com. Dig. (1) See Wilson v. Hickson, 1 Blackf. 231; Osborne v. Fulton, ib. 234; Harper v. Levy, ib. 294; Coldren v. Miller, ib. 291, cited ante, 108, 109 in note; Hedges v. Gray, 1 Blackf. 216. No action but covenant will lie on an instrument under seal, in the words, "Due A. B. $10,43 value received, payable in cotton." Fortenbury v. Turnstall, 5 Pike, 263; January v. Henry, 2 Monroe, 58. (2) Vide Co. Litt. 292; Bac. Abr. Debt, B. Stevens v. Chamberlin, 1 Vermont, 25, Fontaine v. Aresta, 2 McLean, 127. (3) So if the instrument by which the party binds himself in a penalty for the performance of a contract be not under seal, the party complaining of the breach of the contract has his elec tion to bring debt for the penalty, or case for the breach of the contract, and with the latter action may recover damages beyond the amount of the penalty. Dick v. Garkill, 2 Whart. 184. (4) Covenant will not lie on the condition in a title bond to convey land. Huddle v. Wor thington, 1 Ohio, 423; S. P. Abrams v. Knouts, 4 Ohio, 214. Covenant will not lie upon a contract under seal, which has been materially varied by a subsequent parol agreement. The remedy is on the subsequent agreement. M'Voy v. Wheeler, 6 Porter, 201; Raymond v. Fisher, 6 Missou. 29. and A. only execute it but B. agree thereto, and enjoy the premises by virtue of the demise, "an action" may be maintained against A. and B. jointly, upon a covenant therein running with the land, and purporting to to be made by them. This has been supposed to be an authority for the position, that in the above instance an action of covenant may be maintained against A. and B. (ƒ). But the authorities cited in Co. Lit. (g) do not support that position; and it has been disputed, with much appearance of reason, in a recent valuable publication (h). And it would seem that if a lessee by deed-poll assign the term, although in express terms, "subject to the covenants in the lease," the proper remedy by the lessee against the assignee for not performing the covenants, whereby the lessee was damnified, is an action of assumpsit, not an action of covenant; the assignee not having executed any deed covenanting to perform the covenants in the lease (i). III. COVENANT Covenant may be supported, although the covenantee did not sign the indenture (k); and we have seen that in the case of a deed-poll, a stranger to it may sue on a covenant therein to pay him a sum of money, though it is otherwise in the case of a deed inter partes (1) (1). The right of suit is constituted by the covenantor's execution of the deed; and in these cases the acceptance of the deed by the covenantee, and his production of it at the trial, sufficiently testify his assent to the contract, if necessary, to render it binding (m). But it appears to be essential that the party claiming the benefit of the covenant should be named therein as the covenantee (n) (2). Where a contract under seal has afterwards been varied in the terms of it by a subsequent parol contract, made on a new consideration, such substantial agreement must be the subject of an action of assumpsit, and not of covenant (o) (3); and it has been holden that covenant. cannot be supported against the assignee of the grantor of a rent-charge, though debt is sustainable against the pernor of the profits (p). In some [ *120 J cases where the breach of a covenant is misfeasance, the party has an election to proceed by action or covenant, or by action on the case for the tort as against a lessee, either during his term or afterwards for waste (9). (f) See 4 Cru. Dig. 393, 3d ed.; Com. Dig. Covenant, A. 1; Vin. Ab. Condition, 1. a. 2; Dyer, 13 b. pl. 66; 2 Rol. R. 63, 159; 3 Bulst. 164; Co. Lit. 230 b, n. 1, by Butier; Co. Lit. by Thomas, vol. ii. 229, n. Per Lord Tenterden, 6 B. & C. 602. (g) Namely, 38 Edw. 3, 8 a.; 3 Hen. 6, 56 b; 45 Edw. 11, 12. (h) Platt on Cov. 10 to 18. (i) 5 B. & C. 589, 602; 8 D. & R. 368, S. C. Case lies, id. Sed vide 3 C. & P. 462. (k) 2 Roll Ab. 22, Faith, F. pl. 2; Lutw. 305; Com. Dig. Covenant, A. 1; 3 B. & C. 353; Smith v. Rawson, 21 Wend. 212; Olcott (1) Com. Dig. Covenant. A. 1; ante, 2, 3. (n) 1 Salk. 197, Comb. 219, S. C. Sed vide (1) Berkley v. Hardy, 8 Dowl. & Ryl. 102; Smith v Emery, 7 Halst. 53. But an action of covenant will not lie against a lessee, or his assigns, for rent, under a lease sealed by the lessor only. Hinsdale v. Humphrey, 15 Conn. 431. (2) De Bolle v. The Pennsylvania Ins. Co., 4 Wharf. 68. (3) If a person enters into a bond for the performance of certain matters, and afterwards a parel agreement is made between the parties varying the time of performance, an action cannot be maintained upon the bond for the penalty, but the plaintiff must seek his remedy upon the agreement enlarging the time of performance. Ford v. Campfield, 6 Halst. 237. The rules which affect the form of the pleadings in covenant will be ful ly considered hereafter. We may here observe generally, that the declaration in this action must state that the contract was under seal (r) (1); and should usually make a profert thereof, or show some excuse for the omission (s) (2). It is not necessary to state the consideration of the defendant's covenant, unless the performance of it constituted a condition. precedent, when such performance must be averred (3); or unless a consideration be by law necessary; and even in that case an averment that the defendant, "for the consideration mentioned in the deed," thereby · covenanted, will be sufficient on general demurrer, the defendant not craving oyer of, and setting out a deed showing no consideration, &c. (t). 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 the legal effect, though it is more usual to declare in the words of the deed (4). The breach also may be assigned in the negative of the covenant generally, or according to the legal effect (5). Several breaches may be assigned at common law (u); and as the recovery of damages is the object of the suit, a sum sufficient to cover the real amount should be laid at the end of the declaration, as the amount of the damage sustained. In covenant there is strictly no plea which can be termed a general issue, for non est factum only puts in issue the fact of sealing the deed (6); and non infregit conventionem and nil debet, are insufficient pleas (x) (7); and therefore most matters of defence must be pleaded specially (y) (8). These rules will be fully explained hereafter. The judgment in this action is, that the plaintiff recover a named sum for his damage which he hath sustained by reason of the breach or breaches of covenant: together (1) Smith v. Emery, 7 Halst. Vide Van Santwood r. Sandford, 12 John. 179. (2) Cutts v. United States, 1 Gallison, 69. Smith v. Emery, 7 Halst. 73. (3) Harrison v. Taylor, 3 Marsh. 168; Hounsford v. Fisher, Wright, 580; Goodwin r. Lynn, 4 Wash. C. C. 714; Leonard v. Bates, 1 Blackf. 175; Tinney v. Ashley, 15 Pick. 552; Dakin v. Williams, 11 Wend. 67; Jones v. Summerville, 1 Porter, 437; Smith v. Christmass, 7 Yerger, 565 Farham v. Ross, 2 Hall 167; Thompson v. Gray, 2 Stew. & Porter, 60. (4) Gates v. Caldwell, 7 Mass. 68. (5) Potter v. Bacon, 2 Wend. 583; Randall v. Chesapeake & Del. Canal Co., 1 Harrington, 151. Breckenridge v. Lee, 3 Bibb. 330; Rickert v. Snyder, 9 Wend. 416. (6) Non est factum is under a statute of Ohio, a plea of the general issue in Covenant, Granger v. Granger, 6 Ham. 41. Courcier v. Graham, 1 Ohio, 330, so far that a notice of matter in bar, or in set-off, may be put under it, ib. The single plea of non est factum admits all the material averments in the declaration. M'Neish. Stewart, 7 Cowen, 474; Thomas v. Wood, 4 Cowen, 173; Cooper v. Watson, 10 Wend. 202; Barney v. Keith, 6 Wend. 555; Kane v. Sawyer, 14 John. 89, and puts in issue only the giving of the deed. Legg v. Robinson, 7 Wend. 194; Norman v. Wells, 17 Wend 136; Hebard v. Delaplaine, 3 Hill, 187; Goulding v. Hewitt, 2 Hill, 644; Dale v. Roosevelt, 9 Cowen, 307. (7) The plea of non infregit conventionem is not a general issue, but must be pleaded in bar. Phelps v. Sawyer, 1 Aiken, 150. See Bender v. Fromberger, 4 Dall. 436, Roosevelt v. Furton, 7 Cowen, 71. (8) Where all the covenants are in the affirmative, omnia performavit is a good plea. Bayley v. Rogers, 1 Greenl. 189; See Champ v. Asdery, 2 Marsh. 246; Raugler v. Morton, 4 Watts 265. The plea of "conditions performed" admits all the facts that are well alleged and assumes the proof of performance. Harrison v. Park, J. J. Marsh, 122. See Neave v. Jenkins, 2 Yeates, 107; Roth v. Miller, 15 Serg. & R. 105; Bryant v. Smithson, 3 Stew. 339. with full costs of suit, to which the plaintiff is in general entitled, although the damages recovered be under 40s (z) unless the judge certify under the statute of Eliz. (a). III. COVENANT. *IV. DETINUE. [ *121 ] The action of detinue is the only remedy by suit at law for the recovery IV. DETINUE. of a personal chattel in specie, except in those instances where the party can obtain possession by replevying the same, and by action of replevin (b). In trespass, or trover, for taking or detaining goods, or in assumpsit for not delivering them, d'images only can be recovered. This is an action somewhat peculiar in its nature, and it may be difficult to decide whether it should be classed amongst forms of actions ex contractu, or should be ranked with actions ex delicto. The right to join detinue with debt (e), and to sue in detinue for not delivering goods in pursuance of the terms of a bailment to the defendant (d), seem to afford ground for considering it rather as an action ex contractu (1) than an action of tort. On the other hand, it seems that detinue lies although the defendant wrongfully became the possessor thereof in the first instance, without relation to any contract (e). And it has recently been considered as an action for tort, the gist of the action not being the breach of a contract, but the wrongful detainer, for which reason, although a declaration in detinue has stated a bailment to the defendant, and his engagement to re-deliver on request, and the defendant has pleaded that the bailment was as a security for a loan, the plaintiff may, without being guilty of a departure, reply that he tendered the debt, and that the defendant afterwards. wrongfully withheld the goods (ƒ). Since the 3 & 4 W. 4, c. 42, s. 13, abolished wager of law, this action has become more frequent (g). This action may be considered, 1st, with reference to the nature of the 1st. For thing to be recovered; 2dly, the plaintiff's interest therein; 2dly, the inju- what propry; 4thly, the pleadings; 5thly, the judgment. erty it lies. This action is only sustainable for the recovery of a specific chattel, and not for real property (h). The goods for which it is brought must be distinguishable from other property, and their identity ascertainable by some certain means, so that if the plaintiff recover, the sheriff may be able to deliver the goods to him; thus it lies for a horse, a cow, or money in a bag: but for money or corn, &c. not in a bag, or chest, or otherwise distin- [ *122 ] guishable from property of the same description, detinue cannot be sup (≈) Tidd, 9th ed. 945, 963, 977, 978. (a) 43 Eliz. c. 6; Tidd, 6th ed. 952, 953, 954. (b) 3 Bla. Com. 146, 152; Willes, 120; Co. Lit. 296 b; Com. Dig. Detinue, A. (c) 2 Saund 117 b. (d) Post, 124. (e) Post, 122. It is also clear, that a setoff is not available in this form of action, Bul. N. P. 181. But this may be on the ground that in detinue the value of the goods is unli- (f) Geldstone v. Hewett, 1 Cromp. & Jerv. (g) See before, Barry v. Robinson, New Rep. 295; King v. Williams, 3 Bar. & Cres. 538. (h) Cro. Jac. 39. As to (1) This is certainly confirmed by the history of the action, from which it will appear that detinue was originally no other than an action of debt in the detinet, instead of the debt. which, as well as the ancient law respecting this action, vile 2 Reeve's Hist. E. L. 261, 333 336; 3 Reeve's Hist. E. L. 66, 74. IV. DETINUE. 2dly. The plaintiff's interest. injury. ported (i). It lies for the recovery of charters and title-deeds, the property in which generally accompanies the title to the land to which they relate (k). And it is sustainable upon a contract for not delivering a specific chattel in pursuance of a bailment or other contract (1); but to support this action, the property in some particular chattel must be vested in the plaintiff; and therefore assumpsit, or debt in the detinet, is the only remedy for the non-delivery of corn, &c. sold, where no specific corn was contracted! for (m). A person who has the absolute or general property in certain specific goods, and the right to the immediate possession thereof, may support this action, although he has never had the actual possession; therefore an heir may maintain detinue for an heir-loom; and if goods be delivered to A. to deliver to B., the latter may support this action, the property being vested in him by the delivery to his use (n). But if the plaintiff have not the right to the immediate possession of the goods, and his interest be in reversion, he cannot support detinue, trover or trespass (o). And it seems to be a general rule, that the plaintiff must have a general or special property in the goods, at the time the action was commenced, in order to maintain detinue (p). A person who has only a special property, as a bailee, &c. may also support this action, where he delivered the goods to the defendant, or they were taken out of such bailee's custody (9). It is said, that if a person detain the goods of a woman, which came to his hands before her marriage, the husband must alone bring this action, because the property is in him alone at the time of the action brought (r). And an heir who is entitled to an estate per autre vie, as special occupant, may in this action recover the title deeds relating to the estate (s). If the owner of an estate deliver the title-deeds to the bailee, and then convey away the estate, the action for the detention of the deeds should be brought in the name of the new proprietor of the property (1). The gist of this action is the wrongful detainer, and not the original 3dly. The taking (). It lies against any person who has the actual possession of [*123] the chattel, and who acquired it by lawful means, as either by bailment, delivery, or finding (a). It is a common doctrine in the books, that this action cannot be supported, if the defendant took the gods tortiously (y); an opinion which appears to be founded on the judgment of Brian, C. J., who held (2) that detinue could not in such case be supported; on this fallacious reasoning, that by the trespass the property of the plaintiff was divested, and consequently that the property in the chattel was not vested in the plaintiff at the time of the commencement of his action (a). But (i) Com. Dig. Detinue, B. C.; Co. Lit. 286 b; 3 Bla. Com. 152; Bulst. 308; Moore, 394. (k) 4 T. R. 229, 232. (7) Fitz. N. B. 138; Willes, 120; 3 Bla. Com. 152. (m) 3 Woodd. 104; 1 Dyer, 24 b. (n) 2 Saund. 47 a note; 1 Bro. Ab. Detinue, pl. 30, 45; 1 Rol. Ab. 606; Com. Dig. Detinue, A.; 4 Bing. 111. (0) 7 T. R. 9. (p) 4 Bing. 106. (q) Bro. Ab. Detinue; 1 Saund. 47 b, c, d; (u) 3 Bla Com. 152; Co. Lit. 286 b; 2 Bulst. 308; Geldstone v. Hewitt, 1 Cromp. & Jerv. 565; 1 Tyr. 450, S. C. (x) Willes, 118; Co. Lit. 286 b; Fitz. N B 138, E.; Bac. Ab. Detinue. (y) 6 II. 7, 9; 2 Bla. Com. 152; Bro. Ab. Detinue, pl. 36, 53; Com. Dig. Detinue, D.; Vin. Ab. Detinue B. 2, pl. 5, Trespass, Y. pl. 12; Cro. Eliz. 824; Selw. N. P. Detinue, 2d edit. 697, note 3; but see 4th edit. 635, note 3, 7th edit. 668, note 3. In equity, sce 10 Ves. 163. |