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defendant prescribed for common, for all cattle (except sheep) levant and couchant on defendant's messuage, and one acre of land; the issue was on the levancy and couchancy. The evidence was, that defendant was seised of a copyhold messuage, and one acre of pasture land; that he foddered eight or nine cows in the yard of the said messuage with hay brought from another farm about two miles off. Lord Raymond, C. J.: "These cows cannot be levant and couchant upon the one acre; for I am clear that levancy and couchaney is a stint of common in contradistinction to common sans nombre, and signifies only so many as the messuage or farm will by its produce maintain; and it was so resolved in the case of the town of Derby (k). I know there are cases which say, that foddering in a yard makes a levancy and couchancy, but then the meaning is, foddering with stubble, &c. produced from the messuage or land itself, to which the yard belongs; for example, if an acre of land will produce only so much hay, &c. as will maintain but one cow, the occupier shall not put two on the common, because he fodders them in the yard with the produce of other land; for, by the same rule, he might put 1,000 of his own, or of other persons, and deprive the other commoners of the benefit of common" (l).

Trespass for impounding plaintiff's colt and three fillies. Defendant set out his right to a messuage, with the appurtenants, to which the defendant had a right of common belonging to the loc. in quo, and that defendant took the cattle damage feasant; plaintiff replies, that he is possessed of a copyhold messuage in Drayton, and prescribes for a right of common in the loc. in quo, for all commonable cattle, levant and couchant on the said messuage, at all times of the year. Defendant traverses the levancy and couchancy of the beasts taken, and issue thereon. It appeared by the evidence, that the plaintiff's messuage was only a yard where the horses were foddered, and one acre of orchard, with the produce of which the plaintiff could not maintain the colt and three fillies, and for that reason he foddered them with hay and straw from other land hired by him; per Lee, C. J.: "These beasts cannot be levant and couchant on this yard, though they are foddered there, unless they can be foddered with the produce of the messuage; and so it was determined by Lord Raymond, in Rogers v. Benstead, at Cambridge, 1727, after much consideration, that levancy and couchancy signify what the produce of the estate will bear, and is a stint of common with respect to other commoners; and I know no difference as to this, whether the common is for the whole year, or for half a year only” (m). "The rule now is, that such cattle

(k) Mellor v. Spateman, 1 Wms. Saund. 343.

(1) Rogers v. Benstead, Cambr. Sum. Ass. 1727, cor. Lord Raymond, C. J., MS.

Serjt. Leeds: quoted by Bayley, J., in
Cheesman v. Hardham, 1 B. & Ald. 711.
(m) Fulcher v. Scales, Norfolk Summ.
Ass. 1738, MS. Serjt. Leeds.

only are to be holden levant and couchant upon the inclosed land, as that land will keep during the winter. It has been argued, that the rule includes such as the land will keep during the whole or any part of the year; but that is not so: the real question is, has this defendant turned more cattle on the common than the winter eatage of his ancient tenement, together with the hay and produce obtained from it during the summer, is capable of maintaining" (n).

(n) Per Parke, B., in Whitelock v. Hutchinson, 2 M. & Rob. 205.

CHAPTER XII.

COVENANT.

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I. Of the Action for Breach of Covenant,

Where Assumpsit, &c. will lie though there be a Deed. 488

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V. By whom the Action of Covenant may be maintained,

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2. Executor

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VI. Against whom the Action of Covenant may be main

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1. Of the Action for Breach of Covenant.

COVENANTS are of two kinds: 1. Express. 2. Implied, or covenants in law. An express covenant is an agreement entered into by deed indented or deed poll, between two or more persons, for the performance of certain acts, or for the forbearance to do certain acts. An implied covenant, or covenant in law, is an agreement raised by implication of law between two or more persons in a deed indented or deed poll, from certain technical expressions used therein. For the violation of agreements of this kind the law has provided a remedy by action of covenant, wherein the party injured may recover damages in proportion to the loss sustained. Where it is necessary to enforce the actual performance of any agreement, e. g. the conveyance of land, execution of deeds, &c., application must be made to a court of equity for what is termed a specific performance; for in the action of covenant damages only for the non-performance can be recovered.

A party bringing covenant on a deed poll must be named therein; for where, upon the face of the deed poll, it appeared, that the defendant promised to do a certain act, without saying that he promised the plaintiff, it was held that an action would not lie (a). Covenant lies for rent reserved by indenture, and accruing before a re-entry for a forfeiture, notwithstanding the lessor has re-entered, and under such re-entry is to have the premises again, "as if the indenture had never been made;" or, in other words, re-entry for breach of covenant is no bar to covenant for rent accrued before the re-entry (b). So an assignee of a lease is liable for the breach. of a covenant running with the land incurred in his own time, although the action is not commenced until after he has assigned over the premises (c). Where in covenant for the further yearly rent stipulated for in case of converting pasture into tillage, the de

(a) Green v. Horne, Salk. 197.
(b) Hartshorne v. Watson, 4 B. N. C.

178.

(c) Harley v. King, 1 C. M. & R. 18.

fendant pleaded, that the plaintiff accepted the original rent, as and for the rent due, without demanding the additional rent; it was held, that the right of the plaintiff to recover a sum of money, as stipulated damages and as additional rent, was not waived by receiving the sum due for the original rent; aliter, if it were a for-feiture (d).

If A. promises, by deed, not to do a certain act, an action of covenant may be maintained, for the breach of such promise; but an action on the case will not lie. As where A. recovered a debt of 71. 10s. against B., and B. paid A. 77., whereupon A. by deed released all actions, executions, &c. to B., and in the same deed promised to discharge all executions against B. upon the same judgment, but afterwards sued out execution thereon: the court were of opinion, that the promise being by deed, B.'s remedy was by an action of covenant, and not assumpsit (e). The defendants, by deed of 18th April, 1838, contracted to employ the plaintiff in the management of certain chemical works for the term of seven years, from the 30th of June then next, with a proviso, that if a certain process on which the plaintiff was then engaged should not be in operation on the 21st of June, then the defendants should after that day have power to determine the contract by notice in writing. On the 9th of August a second agreement in writing, not under seal, was entered into between the parties, whereby the time for bringing the process into operation was extended to 21st of December, 1838. The plaintiff having brought assumpsit upon the second agreement, for a breach of stipulations contained in the deed; it was held, that the action could not be maintained, the second agreement being merely an agreement for the extension of the time mentioned in the deed, and not an agreement incorporating that deed, which was still in force (ƒ).

Where Assumpsit will lie though there be a Deed.- Although it is a general rule that assumpsit will not lie, where there is a remedy of a higher nature (Shack v. Anthony, 1 M. & S. 573; Baber v. Harris, 9 A. & E. 532) co-extensive with the contract declared on (g), yet there are some exceptions to this rule; as where two persons entered into articles of partnership for a term of years, and the deed contained a covenant to account yearly, and to adjust and make a final settlement at the expiration of the partnership; and they dissolved the partnership before the years were expired, and accounted together, and struck a balance, which was in favour of the plaintiff, including several items not connected with the partnership, and the defendant promised to pay it: it was held,

(d) Denton v. Richmond, 1 C. & M. 734. (e) Bennus v. Guyldley, Cro. Jac. 505. (f) Gwynne v. Davy, 1 M. & G. 857.

(g) Per Tindal, C. J., Filmer v. Burnby, 2 M. & G. 529; Ansell v. Baker, 15 Q. B. 20.

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