| 词汇 | Covenant4 |
| 释义 | `1`Covenant4 `2` "Legal Lexicon": An illegal covenant is one forbidden by law, either expressly or by implication. A covenant entered into, in violation of the express provision of a statute is absolutely void. A covenant is also void if it be of immoral nature; such as a covenant for future illicit intercourse and cohabitation or against public policy; in restraint of trade, when the restraint is general; or fraudulent between the parties. Covenants, in the disjunctive or alternative, are those which give the covenantor the choice of doing, or the covenontee the choice of having performed, one of two or more things at his election; such as a covenant to make a lease to Titus, or pay him one hundred dollars on the fourth day of July, as the covenantor or the covenantee, as the case may be, shall prefer. Collateral covenants are such as concern some collateral thing, which does not at all, or not so immediately relate to the thing granted; such as to pay a sum of money in gross, that the lessor shall distrain for rent, on some other land than that which is demised or the like. These covenants are also termed covenants in gross. Remedies. The name of an action instituted for the recovery of damages for the breach of a covenant or promise under seal. 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. Though, in general, it is said that covenant will not lie on a contract inpresenti, as on a covenant to stand seized, or that a certain horse shall henceforth be the property of another. 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 neithor debt nor assumpsit can be supported but covenant as well as the action of debt, may be maintained upon a single bill for a sum certain. 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 for waste, but this has been questioned. When the contract under seal has been enlarged by parol, the substituted agreement will be considered, together with the original agreement as a simple contract. - 2. The declaration must state that the contract was under seal and it should make proffer of it or show some excuse for the omission. It is 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 consideration 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 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. - 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. But this plea only puts in issue the fact of scaling the deed. Non infregit conventionem and nil debet, have both been held to be insufficient. - 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, to |
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