277 
COVENANT. 
be bad thereupon. Chan. Rep. 294. A covenant, being 
one part of a deed, is fubjeft to the general rules of 
expofition of all parts of the deed : and in a covenant 
the laft words, that are general, fhall be expounded by 
the firft words, which are fpecial and particular. Vent. 
218. Alfo a latter covenant cannot be pleaded in bar to 
a former. 
When a covenant is to two perfons jointly, one of 
them may not bring aftion of covenant, or plead alone, 
but both mud join, r Nelf. 558. If a man is bound to 
perform all the covenants in an indenture, and they are 
all in the affirmative, he may plead performance gene¬ 
rally. Co. Lit. 303. Covenants in the negative mult be 
pleaded fpecially. When fome covenants are in the 
negative, and fome in the affirmative, the defendant is to 
plead fpecially to the negative covenants, that he had 
not done the thing, and performance generally as to the 
affirmative: and where the negative covenants are 
againff law, and the affirmative agreeable to law, per¬ 
formance generally may be pleaded. Moor 836. If any 
of the covenants are in the disjunctive, fo that it is in 
the election of the covenantor to perform the one, or 
the other, the performance ought to be fpecially plead¬ 
ed, that it may appear what part hath been performed. 
1 NelJ'. 573. And commonly where an aCt is to be done, 
according to a covenant, he who pleads performance 
ought to do it fpecially. 1 Leon. 136. In debt upon bond 
for performance of covenants, one whereof for peace¬ 
able enjoyment, and free from all incumbrances, and 
another for further alfurance, the defendant fhould 
plead fpecially, that the houfe was free from incum¬ 
brances at the time of the conveyance made, and not 
charged at any time fince, and that no farther affuranee 
had been required, or fuch an affuranee which he had 
executed ; yet where a defendant pleaded generally, in 
this cafe it was held good. 1 Lutw. 603. The plaintiff, 
in equity, if he has not performed his part of the agree¬ 
ment, muff not only fhew that he was in no default, in 
not having performed it, but mud alfo allege that he 
is flill ready to perform it; whereas, at law, if the co¬ 
venants be not precedent, but diftinft and independent, 
the plaintiff need not allege a performance of his cove¬ 
nants, to entitle him to recover againfl the defendant for 
the breach of his. Nichols v. Ray nh red, Hob. 88. 4 Term 
Rep. 761. 
Where the covenants are mutual and diftinft, the de¬ 
fendant cannot plead a breach by the plaintiff, in bar of 
the plaintiff’s aCtion for a breach by the defendant ; for 
the damage may be unequal, and therefore each party 
muff recover againfl the other, the damages he fuflained. 
Cole v. Shallet, 3 Lev. 41. When a breach is affigned, it 
mull not be general, but mud be particular; as inac¬ 
tion of covenant for not repairing of houfes, the breach 
ought to be affigned particularly, what is the want of 
reparation. Cro. Jac. 369. But on mutual promife for 
one to do an aft, and in confideration thereof another 
to do fome aft, as to fell goods, &c. for fo much money, 
a general breach that the defendant hath not performed 
his part, is well affigned. 3 leu. 319. Breaches affigned 
ought to be according to the very words of the condi¬ 
tion or covenant. Where a thing is to be done by a 
perfon or his affigns, the breach is to be, that it was not 
done either by the one or the other. 5 Mod. 133. If a 
perfon is to tender a conveyance to another, his heirs or 
affigns, breach afligned that the defendant did not tender 
a conveyance to the plaintiff, without the words, “ his 
heirs or affigns,” is good: but if the tender be to be 
made by another man, his heirs, &c. and not to him, it 
is otherwife. 1 Salk. 1.39. Where a lelfee for years is to 
leave all the timber on the land, which was growing 
there at the time of the leafe, and he cut down any 
trees, though he leaves the timber on the land at the 
end of his leafe, this is a breach of covenant: for in 
contrafts the intention of the parties is chiefly to be 
confidered. Raym. 464. If feveral breaches are affigned, 
'/ol, V. No. 272. 
and the defendant demurs upon the whole declaration, 
the plaintiff fhall have judgment for all that are well 
afligned, for they are as feveral aclions. Cro. Jac. 557. 
Covenants are generally taken mod flrongly againfl 
the covenantor, and for the covenantee. Plowd. 287. 
But it is a rule in law, that where one thing may have 
feveral intendments, it fhall be confirmed in the mo ft fa¬ 
vourable manner for the covenantor. 1 Lut. 490. The 
common ufe of covenants is for alluring of land ; quiet 
enjoyment free from incumbrances ; for payment of rent 
relerved ; and concerning repairs, &c. And in deeds of 
covenant, fometimes a claufe for performance, with a 
penalty, is inferted in the body of the deed : at other 
times and more frequently, bonds for performance, with 
a fufficient penalty, are given feparate ; which laft being 
fued, the jury mufl find the penalty; but on covenant, 
only the damages. Wood's Injl. 250. Slat. 8 & 9 Will. III. 
c. 11. Covenant for non-payment of rent, was referred 
to the mafler as to the rent, and on payment thereof 
procefs to flay as to that, but there being another breach 
as to not repairing, the plaintiff might proceed for that. 
Anon. Wilf. Rep. p. 75. In an aftion of covenant, it is 
not neceffary to aver that the plaintiff performed his co¬ 
venants. By 8 & 9 Will. III. c. 11, in aftions on bonds, 
for performance of covenants, plaintiff may affign as 
many breaches as he pleafes, and the jury on the trial 
of the aftion, or on a writ of enquiry, may alfefs da¬ 
mages : on defendant’s paying damages, execution may 
be flayed, but judgment fhall remain to anfwer any far¬ 
ther breach, and plaintiff may have a Jcire facias againfl 
the defendant. 
Where a penalty is intended, merely to fecure tire en¬ 
joyment of a collateral objeft, the enjoyment of the ob- 
jeft is confidered as the principal intent of the deed, and 
the penalty only as acceffional, and therefore only to fe¬ 
cure the damage really incurred. Per Thurlow, cafe, 
Sloman v. Walker. 1 Bro.Rep. 418. And upon this con- 
flruftion of a penalty, courts of equity will interpofe, to 
reflrain proceedings at law to recover the penalty. But 
the principles of equal juftice require, that courts of 
equity fhould enforce the fpecific performance of the aft 
agreed to be done, or reflrain from the doing of that 
which was agreed fhould not be done. And upon this 
principle, wherever the primary objeft of the agreement 
be the fecuring of the fpecific fubjeft of the covenant, 
the party covenanting is not entitled to eleft whether 
he will perform his covenant or pay the penalty. Hob- 
fon v. Trevor. 2 P. Wins. 191. But if the covenant be 
to do, or not to do, fome particular aft, or doing it, or 
neglecting to do it, to pay a certain fum, by way of li¬ 
quidated damages, courts of equity will not relieve 
againfl the payment of fuch damages. Eafl India com¬ 
pany v. Blake, Finch's Rep. 117. And as courts of equity 
will not relieve againfl flipulated damages, they will 
not, in general, interpofe to enforce the performance of 
the covenant, or to reflrain its violation. Therefore, 
where the lelfee covenanted not to plough certain land, 
or if he did, to pay twenty (hillings per acre, per annum, 
the court refilled to reflrain the lelfee from ploughing. 
Woodward v. Gyles, 2 Vern .119. But there are cir- 
cumflances which will induce the court to interfere, 
though flipulated damages be referved; as where the 
leffee had covenanted not to plough ancient meadow, or 
if he did, to pay an increafe of rent, the Court, upon 
his threatening to plough, appears to have granted an 
injunction. Webb v. Clarke, 8th of May, 1782. Dul¬ 
wich college v. Davis, M. 1787. 
It is held that an aftion of covenant may be laid in 
London, for non-payment of rent on a leafe of lands in 
any other place. 1 Sid. 401. And if, in this aftion, a 
fum be mifcafl, either too little or too much, it is 
amendable; and not like to the aftion of debt, which if 
alleged lefs than it is, without fhewing tire reft to be 
latisfied, it is ill. %Keb. 39. 2CV0. 247. In aftion of co¬ 
venant, the plaintiff mufl have recourfe to the deeds or 
4 B writings'. 
