§ 1949. Generally.-Covenant is the form of action to recover damages for breach of covenant, or written promise under seal, whether the damages are liquidated or unliquidated; and, at common law, it was usually the only proper form of action on such a promise where the damages were unliquidated.1 It is distinguished from debt mainly by the fact that it will lie for unliquidated as well as liquidated damages, and from assumpsit by the fact that the latter action lies only where the contract is a simple contract, not under seal, while in covenant it is a specialty or contract under seal. § 1950. Burden of proof.-"The evidence in an action of covenant," says Starkie, "is closely confined by the nature of the pleadings; the plaintiff is bound to show his title, and to point out the particular breaches of covenant of which he complains; and the defendant is obliged to show the grounds of his defense specially upon the record." The burden of proof is generally upon the plaintiff, although, in some instances, he may have nothing to prove except the 1 Shipman Com. L. Pl. (2d ed.) 37. In Jerome v. Ortman, 66 Mich. 668, 33 N. W. 759, it is held that covenant will lie if the instrument purports to be, and operates as a deed, even though it is not sealed. 22 Starkie Ev., § 429. 3 Simonton v. Winter, 5 Pet. (U. S.) 141; Sawtelle v. Sawtelle, 34 Me. 228; Lansing v. Van Alstyne, 2 Wend. (N. Y.) 561. See as to proof of damages on default, Bartlet v. Braunsdorf, 57 Wis. 1; and compare, Courcier v. Graham, 1 Ohio 347. damages. The burden of producing evidence to establish the defendant's plea may, however, be upon the defendant.* § 1951. Evidence under particular pleas.-Under the plea of non est factum the plaintiff must produce the deed, if pleaded with a profert, and prove the execution in the usual way." If there is no other plea on the record, all the other averments stand admitted; and after proof of the defendant's execution of the deed, nothing remains on the part of the plaintiff but to prove the amount of his damages. The deed itself, when proved, is evidence against the defendant who has executed it, of all the facts recited in the deed. If, for instance, a lease describes the demised land as meadowland, this is evidence that it was so at the commencement of the term. If the defendant by his plea admits the execution of the deed, he admits so much of the deed as is stated in the declaration, but no more; and if the plaintiff seeks to prove some other recital of the deed not specified in the declaration, he must prove the execution of the deed. The manner of proving the formal execution of a deed has already been considered. In addition to producing the deed and showing that it was signed, sealed and delivered by the grantor or obligor, it should also be shown, where required, that the statutory formalities have been 'Douglass v. Hennessy, 15 R. I. 272, 10 Atl. 583; Linder v. Pryor, 8 Car. & P. 518; Scott v. Hull, 8 Conn. 296, where issue was joined on a plea of performance, it was held that the defendant had the burden of proof and the right to open and close. 'See, Williams v. Sills, 2 Campb. 519. Cole v. Robins, B. N. P. 172; Michael v. Scockwith, Cro. Eliz. 120; Kane v. Sanger, 14 Johns. (N. Y.) 89. 'Smith v. Woodward, 4 East 585. Williams v. Sills, 2 Campb. 519; Watson v. King, 4 Campb. 272. 'As to proof by attesting witnesses, see also, Manns v. Dupont, 3 Wash. (U. S.) 31, 42; Ledgard v. Thompson, 11 M. & W. 41; Lesher v. Lavan, 2 Dall. (Pa.) 96; Pigott v. Holloway, 1 Bin. (Pa.) 436; Berks Tpk. Co. v. Myers, 6 S. & R. (Pa.) 12. As to when evidence of subscribing witnesses may be dispensed with, see, Vol. I, § 431; Marsh v. Collnett, 2 Esp. 665; Fetherly v. Waggoner, 11 Wend. (N. Y.) 603; Pearce v. Hooper, 3 Taunt. 60; Burghardt V. Turner, 12 Pick. (Mass.) 534; Barnes v. Trompowsky, 7 Term R. 261; Anonymous, 12 Mod. 607. As to delivery, see, McKinney v. Rhoads, 5 Watts (Pa.) 343; Foster v. Mansfield, 3 Metc. (Mass.) 412; Porter v. Cole, 4 Greenl. (Me.) 19, 25; Scrugham v. Wood, 15 Wend. (N. Y.) 545; Midland Steel Co. V. Citizen's Nat. Bank, (Ind. App.) 72 N. E. 290, the averment that an instrument was executed was held to include a signing and delivery. complied with. It has been held that a lessee in possession cannot controvert his lessor's title to a demise or give in evidence what amounts to a license, under a plea of non est factum.10 It has also been held that a misrepresentation as to the legal effect of a deed, by which its execution was induced, cannot be shown under such a plea; but evidence that the deed was delivered in escrow12 has been held admissible under a plea of non est factum; and, under the general issue, it has been held that the defendant may show that the deed is not his, by evidence of the lack of power in the agent who assumed to execute it for him.18 Proof of the performance of a condition precedent, when put in issue by the defendant's plea, and required to be proved by the plaintiff, cannot be dispensed with, although the condition has been performed according to a subsequent parol agreement. Thus, in one case, the plaintiff covenanted to build two houses for a certain sum of money, and in an action for the money, averred that he had built the houses within the time. It was held that he could not be admitted to show that the time had been enlarged by a subsequent parol agreement, and that the houses had been built within the enlarged time.14 So, generally, the plaintiff cannot prove by parol an agreement different from the written contract declared on.15 The breach must be proved as it is laid in the declaration. Thus, where the covenant was to keep all trees standing in an orchard whole and undefaced, reasonable use and wear only excepted, the cutting down of trees past bearing, the landlord being likely to get back his premises at the end of the term in an improved condition, was held to be no breach of the covenant.16 In support of a plea of entry and eviction in excuse for the non-performance of a covenant, the de 10 Friend v. Estabrook, 2 W. Bl. 1152; Ratcliff v. Pemberton, 1 Esp. 35. R. (Pa.) 160; Vicary v. Moore, 2 "Edwards v. Brown, 1 Tyr. 182, 9 N. E. 650; Phillip &c. Constr. Co. 281, 3 Y. & J. 423. 12 Stoytes v. Pearson, 4 Esp. 255; Cole v. Robbins, Buller N. P. 172; Union Bank of Md. v. Ridgley, 1 H. & G. (Md.) 324. 13 v. Seymour, 91 U. S. 646; but see, in case of fraud, Hunter v. McHose, 100 Pa. St. 38. 16 Good v. Hill, 2 Esp. 690; see also, Hawkes v. Orton, 5 A. & E. Agent of State Prison v. Lath- 367; Harris v. Mantle, 3 Term R. rop, 1 Mich. 438. 14 Littler v. Holland, 3 Term R. 590; see also, Baldwin v. Munn, 2 Wend. (N. Y.) 399. 15 See, Barndollar v. Tate, 1 S. & 307; Long v. Sinclair, 38 Mich. 90; fendant must prove such an entry or eviction as were sufficient to prevent the performance of the covenant.17 § 1952. Actions by and against assignees.-"Where the plaintiff declares as assignee,18 and his title is put in issue by one or more of the defendant's pleas, he must prove his title as alleged, whether as assignee of the reversion by proof of the due execution of the assignment, as assignee of the estate of a bankrupt by proof of the sev eral steps in bankruptcy, and of the assignment, as heir of the covenantee, or as his devisee or his executor, according to the circumstances of the case." So, in such cases, if the defendant denies that he is bound by the covenant, the plaintiff must prove the liability as assignee. Upon a covenant which runs with the land, proof that the defendant is heir will support a declaration which charges him generally as assignee.20 Proof of possession by the defendant, or of payment of rent, is also prima facie proof that he is assignee. But the defendant may nevertheless show that the title is in another, and prove that he is under-tenant only, even though the reversion of but one day be left in the original lessee.21 An actual entry or possession is not essential to render the assignee of the whole term of a lease liable to the covenant for payment of rent.22 If the plaintiff charge the defendant through a variety of deeds, instead of charging him generally by virtue of divers mesne assignments, and these be put in issue by the plea, the plaintiff must prove the deeds as "2 Starkie Ev., 2d Am. ed. 435. 18 Before the stat. 32 Hen. VIII, c. 34, the action of debt for rent lay for the assignee of the reversion at common law, and the action being founded on privity of estate was local. Walker's case, 3 Coke 22, b. Glover v. Cope, 4 Mod. 81; Barker v. Damar, 3 Mod. 338, 1 Will. Saund. 240, c. in notes. The effect of the above statute was to transfer a privity of contract, and to enable the assignee of the lessor to maintain covenant against the lessee (Thursby v. Plant, 1 Will. Saund. 237). The lessor might at common law maintain debt or covenant for rent, or not repairing, or other covenant running with the land; but the action was local, as founded in privity of estate (Walk- 75. 21 Holford v. Hatch, Doug. 183; Hare v. Cator, 1 Cowp. 766. Williams v. Bossanquet, 1 B. & B. 238; overruling, Eaton v. Jaques, Doug. 454; see, Stone v. Evans, Woodfall's L. & T. c. 273, 275, Coke Litt. 46, b. 1 Ld. Raym. 367. stated.23 Under the plea of release, it must be proved that the release was executed subsequently to the breach of covenant.24 § 1953. Evidence in particular cases.-Under a plea of conditions performed, evidence of a waiver or other excuse for non-performance is not admissible.25 And in an action for breach of covenant against incumbrances, a judgment for a breach of covenant in another later deed for the same land, was held inadmissible on the question of damages.2 26 In an action on a covenant to pay a certain sum of money on a certain day, although the same instrument contained an assignment by the covenantor to the covenantee of certain goods "as per schedule," non est factum being pleaded, it was held that the plaintiff need not produce the schedule referred to in proof of his case.27 In an action for damages for breach of the covenant against incumbrances, where it appeared that the land was incumbered by a mortgage which was foreclosed, it was held that evidence of an agreement between the purchaser at the foreclosure sale and the covenantee, in relation to a conveyance of the land by the former to the latter upon the payment of his proportion of the debt, was admissible as part of the transaction whereby such incumbrance was extinguished; but that evidence that the vendee knew that the land was more valuable than the contract price, was not admissible to show that he assumed such incumbrance as part of the purchase price, nor was a statement made by the vendor at the time he employed an attorney to remove the incumbrance, in the absence of the vendee, admissible as part of the res gestae.28 § 1954. When breach occurs.-Where the defendant has voluntarily destroyed the subject of the agreement or otherwise voluntarily 23 Turner v. Eyles, 3 B. & P. 456, 461. 242.Starkie Ev., 2d Am. ed. 437. 25 Baldwin v. Munn, 2 Wend. (N. Y.) 399, 20 Am. Dec. 627; Oakley v. Morton, 11 N. Y. 25; see also, Webster v. Warren, 2 Wash. (U. S.) 456; Marine Ins. Co. v. Hodgson, 6 Cranch. (U. S.) 206; but see as to tender, Holmes v. Holmes, 9 N. Y. 525; Carman v. Pultz, 21 N. Y. 547. 26 Myers v. Munson, 65 Iowa 423, 21 N. W. 759. Daines v. Heath, 3 C. B. 15, 938, 11 Jur. 185. 28 Morehouse v. Heath, 99 Ind. 509, a memorandum of the various amounts that composed the consideration made by one party in the presence of the other at the time of the conveyance, was, however, held admissible to show the considera |