COMM. 473; 30 Vt. 692; COVENANTS OF SEI SIN, etc.
Covenants in leases, by virtue of the statute 32 Hen. VIII. c. 34, which has been re-en acted in most of the states, are assignable as respects assignees of the reversion and of the lease. The lessee continues liable on express covenants after an assignment by him, but not on implied ones, 4 Term, 98; but he is liable to the assignee of the lessor on implied covenants, at common law. Platt, Coy. 532; 2 Sugden, Vend. 466 ; Burton, Real Prop. 855.
In case of the assignment of lands in par cels, the assignees may recover pro rata, and the original covenantee may recover ac cording to his share of the original estate re maining. 2 Sugden, Vend. 508; Rawle, Coy. 359 ; 36 Me. 170 ; 27 Penn. St. 288; 3 Mete. Mass. 87; 8 Gratt. Va. 407 ; 9 B. Monr. Ky. 58. But covenants are not, in general, ap portionable. 27 Penn. St. 288.
In Practice. A form of action which lies to recover damages for breach of a contract under seal. It is one of the brevia formata of the register, is sometimes a concurrent remedy with debt, though never with assump sit, and is the only proper remedy where the damages are unliquidated in nature and the contract is under seal. Fitzherbert, Nat. Brev. 340; Chitty, Plead. 112, 113; Stephen, Nisi P. 1058.
14. The action lies, generally, where the covenantor does some act contrary to his agreement, fails to do or perform that which he has undertaken, 4 Dane, Abr. 115, or does that which disables him from performance. Croke Eliz. 449; 15 Q. B. 88; 11 Mass. 302; 23 Pick. Mass. 455.
To take advantage of an oral agreement modifying the original covenant in an essen tial point, the covenant must be abandoned and assumpsit brought. 27 Penn. St. 429; 24 Vt. 347.
The venue is local when the action is founded on privity of estate, 2 Stephen, Nisi P. 1148; 1 Wms. Saund. 241 b, n.; and tran sitory when it is founded upon privity of con tract. As between original parties to the covenant, the action is transitory; and, by the statute 32 Hen. VIII. c. 34, an action, of
covenant by an assignee of the reversion against a lessor, or b' a lessee against the assignee of the reversion, is also transitory. 1 Chitty, Plead. 274, 275.
15. The declaration must, at common law, aver a contract under seal, 2 Ld. Raym. 1536: and either make protest thereof or excuse the omission, 3 Term, 151, at least of such part as is broken, 4 Dall. C. C. 436; 4 Rich. So. C. 196; and a breach or breaches, 15 Ala. 5 Ark. 263; 4 Dan. 381; 6 Miss. 229, which may be by negativing the words of the cove nant in actions upon covenants of seisin and right to convey, Rawle, Coy. 53, or according to the legal effect; but must set forth the incumbrance in case of a covenant against incumbrauces, Rawle, Cov. 125 ; and must allege an eviction in case of covenants of war ranty. Rawle, Coy. 308. No considetaticn need be averred or shown, as it is implied from the seal; but performance of an act which constitutes a condition precedent to the defendant's covenant, if there be any such, must be averred. 1 Chitty, Plead. 116; 2 Greenleaf, Ev. 235 ; 26 Ala. N. s. 748. The damages laid must be large enough to cover the real amount sought to be recovered. 3 Serg. & R. Penn. 364, 567 ; 9 id. 45.
There is no plea of general issue in this action. Under non est facturn, the defendant may show any facts contradicting the making of the deed, 1 Seld. N. Y. 422; 1 Mich. 438: as, personal incapacity, 2 Campb. 272; 3 id. 126 ; that the deed was fraudulent, Lofft, 451; was not delivered, 4 Esp. 255 ; or was not ex ecuted by all the parties. 6 Maule & S. 341.
Non infregit conventionem and nil debet have both been held insufficient. Comyns, Dig. Pleader, 2 V, 4. As to the effect of covenant performed, see COVENANT PER