英文法律词典 C-131

COURTESY, OR CURTESY, Scotch¹ law. A right which vests in the hushand, and is in the nature of a life-rent. It is a counterpart of the terce. Courtesy requires, 1st. That there shall have been a living child born of the marriage, who is heir of the wife, or who, if surviving, would have been entitled to succeed. 2d. That the wife shall have succeeded to the subjects in question as heir either of line, or of talzie, or of provision. 1 Bell's Com. 61; 2 Ersk. 9, 53. See Curtesy.

COURTESY OF ENGLAND. See Estates by the Courtesy.

COUSIN, domest. rel. Cousins are kindred who are the issue of two brothers or two sisters, or of a brother and a sister. Those who descend² from the brother or sister of the father of the person spoken of are called patternal cousins; maternal³ cousins are those who are descended⁴ from the brothers or sisters of the mother. Vide 2 Bro. C. C. 125; 1 Sim. & Stu. 301; 3 Russ. C. C. 140; 9 Sim. R. 386, 457.

COVENANT⁵, remedies. The name of an action instituted for the recovery of damages for the breach⁶ of a covenant or promise under seal. 2 Ld. Raym. 1536 F; N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1; Bouv. lnst. Index, h. t.

2. 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 judgment⁷.

3.- 1. To support this action, there must be a breach of a promise under seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381; 6 Miss. R. 29. Such promise may be contained in a deed-poll, or indenture⁸, 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 covenantor⁹ has, a good title. 2 Saund. 181, b. 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. Plowd. 308; Com. Dig. Covenant, A 1; 1 Chit. PI.. 110. The action of covenant is the peculiar¹¹ 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 lessee¹², either during his term or afterwards, for waste; 2 Bl. R. 1111; 2 Bl. R. 848; 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 Watt's R. 451 1 Chit. Pl. 96; 3 T. R. 590.

4. - 2. The declaration must state that the contract was under seal and it should make profert of it, or show some excuse for the omission¹³. 3 T. 11. 151. It is not, in general, requisite¹⁴ to state tho consideration of the defendant¹⁵'s promise, because a contract under seal usually imports a consideration; but when the performance of the consideration constitutes a condition precedent¹⁶, such performance must be averred¹⁷. So much only of the deed and covenant should be set forth¹⁰ 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 4 Dall. R. 436; or, according to the legal effect, and sometimes in the alternative and several breaches¹⁸ may be assigned at common law. Damages being the object of the suit, should be laid sufficient to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall. R. 436 2 Yeates' R. 470 3 Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45.

5. - 3. It is said that strictly¹⁹ 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. Steph. Pl. 174. But this plea only puts in issue the fact of scaling the deed. 1 Chit. Pl. 116. Non infregit conventionem, and nil²⁰ debet, have both been held to be insufficient²¹. Com. Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to that state, the defendant may plead covenants²² and under this. plea, upon notice of the special matter, in writing, to the plaintiff, without form, he may give anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105. And this evidence, it seems, may be given in the circuit courts of the United States in that state without notice, unless called for. 2 W. C. C. R. 4 5 6.

6. - 4. The judgmeut is that the plaintiff recover a named sum for his damages, which he has sustained by reason of the breach or breaches of covenant, together with costs.