capacity, and the judgment should be rendered de bonis testatoris.1

§ 521. How to plead the breach. In pleading the breach of a covenant it is necessary to state that the agreement was under seal, and as the codes of most of the States require that the instrument sued on, or a copy, should be filed with the pleadings in the cause, the contract should either be filed with the petition, or reasons stated why the same is not done.2 It is not necessary to set forth the entire contract, but only that part wherein the breach occurred is essential to be stated.3 That part of the covenant which is pleaded may either be set forth according to its legal effect, or in the exact language of the covenant, but as the code discourages the pleading of legal conclusions it is always best to plead the clause wherein the breach occurred in the exact language of the contract. has also been held that the breach can be pleaded according to its legal effect, or set forth as a negative to the violated conditions of the covenant, but under the code practice it would seem to be better pleading to set it up as a negative to that part of the covenant pleaded.' If the covenant is broken in several conditions, the different breaches may all be set forth in one cause of action, and

6

8

It

1 Taylor's Land. & Ten., § 669; Wait's Act. & Def., supra; Collins v. Thoroughgood, Hob. 188. A joint covenant is generally broken when either covenantor fails to do the act agreed to be performed. Wing v. Chase, 35 Me. 250.

2 Statutes different States; Bliss on Code Pleading, 312; Miles v. Jones, 28 Mo. 87.

3 Bliss on Code Pleading, supra; Macon v. Crump.

4 Buster v. Wallace, 4 Hen. & M. 82.

5 Bliss on Code Pleading, § 306; Taylor's Land. & Ten., § 670 and cases cited.

6 Taylor's Land. & Ten., supra.

7 Bliss on Code Pleading, supra.

8 Harris v. Mantle, 3 T. R. 307; Taylor's Land. & Ten., supra.

different causes of action on the same contract may be united in the same petition,1 but the total amount of the damages sought to be recovered on account of the different breaches, must be stated with sufficient accuracy to enable a recovery for the full amount claimed.2 The plaintiff should generally allege a performance of the covenant on his part, and where it is the breach of a covenant to pay royalty, the entry of the defendant under the contract should be stated. But as the same general rules of pleading apply to the manner of setting out these different covenants, it is deemed unnecessary to mention them more specifically.*

§ 522. Equitable relief against penalties. — When the sum sought to be recovered, is in the nature of a penalty, equity will interfere to relieve the defendant from the necessity of paying a sum in excess of the actual value of the injury sustained by reason of the breach. A court of equity will proceed to ascertain the real amount of the damages suffered, and give the plaintiff such an amount as would reasonably compensate him for the breach. If the lessee covenants to confine his mining operations to a certain tract of land, and agrees to pay a penalty for a breach of this covenant, or in case he should mine upon another

1 Bliss on Code Pleading, §§ 127-130; Jones v. Johnson, 10 Bush, 649; Dye v. Kerr, 15 Barb. 444.

2 Taylor's Land. & Ten., supra.

3 Hurst v. Rodney, 1 Wash. 375; Worthington v. Hughes, 19 Ohio St. 66; Lonwith v. De Silver, 1 Brown (Pa.), 221; Wait's Act. & Def. (Vol. 2), pp. 394-395.

4 See Bliss on Code Pleading, supra, and cases cited.

It is the tendency of the law to regard a sum payable on breach of a covenant as a penalty, and not as liquidated damages, for the reason that the damages are then apportionable to the injury sustained. Wait's Act. & Def. (Vol. 2) 436; Chaddicke v. Marsh, 21 N. J. (Law) 463; Wallis v. Carpenter, 13 Allen, 19; Baird v. Tolliver, 6 Humph. (Tenn.) 186; and see Brown v. Bellowes, 4 Pick. 179.

tract, after a breach of this covenant the lessor could only recover the actual value of the damages sustained by reason of the lessee's mining upon such tract, and if the penalty is in excess of this amount, equity would relieve him from the same.1 But where the act to be done is single, and the sum sought to be recovered for the breach is in the nature of liquidated damages, as where the lessee agrees to pay a fixed sum for every acre mined, in addition to that originally demised, the lessor could recover for each additional acre mined, in proportion to the sum covenanted to be paid. Formerly, equitable relief against penalties could only be obtained in a court of equity; 3 but as the object of the courts was to prevent the recovery of unreasonable penalties, courts of law now exercise jurisdiction to relieve from recovery of a whole penalty, where smaller damages would reasonably compensate the injured party, and as remarked by an eminent author, "the court will look into extrinsic circumstances for the purpose of determining whether the sum mentioned is intended for a penalty or as liquidated damages.'

The system of

§ 523. Injunction to restrain breach. preventive justice, exercised by a court of equity, by means of an injunction, is one which the court will not ordinarily assume for the purpose of preventing or restrain

1 Dennis v. Cummings, 3 John's Cas. 297; Brown v. Bellows, 4 Pick. 179; Richards v. Edick, 17 Barb. 260.

2 Clement v. Cash, 21 N. Y. (7 Smith) 253; Noyes v. Phillipps, 60 N. Y. (15 Sick.) 408; Staples v. Parker, 41 Barb. 648.

3 Taylor's Land. & Ten., § 675; Bispham's Prin. of Eq., §§ 178–180. 4 Taylor's Land. & Ten., § 673, and cases cited, where the agreement is not under seal and the damage is susceptible of compensation and estimation, the sum agreed upon will be treated as a penalty, although called liquidated damages" in the contract. Wait's Act. & Def. (Vol 2), p. 437; Graham v. Bickham, 4 Dall. (Tenn.) 150; Davies v. Penton, 6 B. & C. 216; Pinkerton v. Caslon, 2 B. & Ald. 704.

ing the breach of a covenant.1 Ordinarily the parties are left to their legal remedies—to an action at law for damages for the breach,2- and a court of equity will not interfere to decree the specific performance of a contract, until it is clearly shown that the legal remedy would furnish inadequate or defective relief to the injured party. There are certain cases, however, in which a court of equity will exercise jurisdiction to prevent the breach of a covenant by enjoining the party about to commit the breach. But the performance of the covenant must be practical before a court of equity would interfere in such a case, and it would not enter up a decree where it would be impossible for it to enforce the same, or where the execution of the decree would be a vain or idle act. This rule underlies the whole doctrine of specific performance, upon which exhaustive works have been written. Of course the court will never entertain jurisdiction for the purpose of indulging malice, or in order to carry out the caprice of the party applying for the injunction, and it should always appear that there is an express covenant of the party sought to be enjoined against the act about to be committed at the time of the application." And acts which amount to waste, where there is an express covenant against it, will be enjoined by a court of equity, and although this action is but little used, there are still many cases of breach of

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1 Bispham's Prin. of Equity, §§ 461-464.

2 Ante, idem. Hill v. Barclay, 16 Ves. 405.

3 Seabourne v. Powell, 2 Vern. 11; Bisp. Prin. of Eq, supra.

4 This is particularly so in the case of a negative covenant. Fothergill v. Rowland, L. R. 1 Eq. 132. See, as to removal of machinery, Hamilton v. Dunsford, 6 Irish Ch. 412.

5 See, as to covenant to work, Pollard v. Clayton, 1 Kay & J. 462; Wheatley v. West. Brymbo Coal Co., 9 Eq. 539; MacSwinney on Mines, pp. 228-229; Fry. Spec. Per. Con. 161.

Bispham's Pr in. of Eq., supra, and cases cited.

covenant where damages at law would be inadequate to compensate the injured party, and in such cases relief may be sought by injunction, to restrain the commission of acts which would amount to a breach of the covenant.1

§ 524. Set-off and other defenses. - In an action for royalty by the lessor, the lessee cannot bring in an off-set for damages sustained by reason of the lessor's breach of some of the covenants on his part in the instrument of demise, but he is entitled to a recoupment for any damages he may have suffered by reason of the lessor's breach, or for any payment that he may have made on the lessor's account. Where an assignee undertakes to perform all the covenants that the original lessee failed to perform, he will be liable for all such failures to the original lessor and can be held for such royalty as the original lessee failed to pay, although the assignee in turn may have assigned the lease before any of the royalty became due from him.' An eviction by the lessor is generally a good defense to an action for royalty, but although a partial eviction suspends the whole royalty, it is no defense for a breach of other covenants in the lease.5 A surrender will not operate as a complete defense to an action for breach of a covenant to pay royalty, where a part of the royalty had occurred before the surrender was made. It only has the effect of stopping the royalty from the time the surrender was made, and the lessor is entitled to recover whatever became due

1 Taylor's Land. & Ten., § 685, p. 279, and cases cited; Bispham's

Prin. of Equity, §§ 429-434.

2 Taylor's Land. & Ten., § 682.

3 Sickles v. Frost, 15 Wend. 559.

4 Taylor's Land. & Ten., supra, p. 277; Port v. Jackson, 17 Johns.

239, 479.

5 Tiley v. Mayers, 43 Pa. St. 404; Peck v. Hiler, 24 Barb. 178; Walker

v. Tucker, 70 Ill. 527; Schuylkill v. Schmale, 57 Pa. St. 271.

6 Ante, idem. Taylor's Land. & Ten., § 682.