In an action on the casem, for digging so near the gable end of the house of the plaintiff, let to a tenant, that it fell; Lord Ellenborough held, that where, as in the case before the court, a man had built to the extremity of his soil and had enjoyed his building above twenty years, upon analogy to the rule as to lights, &c., he had acquired a right to a support, or as it were of leaning to his neighbour's soil, so that his neighbour could not dig so near as to remove the support; but that it was otherwise of a house, &c. newly built. See Comyn's Dig. action upon the case for nuisance Č., who cites 1 Sidf. 167. 2 Roll. Abr. 565. line 5-"If a man build a house and make cellars upon his own soil, whereby a house newly built upon the adjoining soil falls down, no action lies." The same point was ruled in Wyatt v. Harrison, 3 B. & Ad. 871. consistently with this position in Rolle: "It may be true, that if my land adjoins another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may be liable to an action. But if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it." Per Ld. Tenterden, C. J. delivering judgment of the court. See further on this subject, Dodd v. Holme, 1 Ad. & Ell. 493. "However insufficient or dilapidated the neighbouring house may be, a party is not justified, by any negligent act on his own premises, in accelerating the fall."

In an action upon the case, the declaration stated, that the plaintiff was master of a ship", which was laden with corn, ready to sail, and that the defendant seized the ship and detained her, per quod querens impeditus et obstructus fuit in viagio. An exception was taken to the action, on the ground that it should have been trespass vi et armis; and 4 Edw. 3. 24. 13 H. 7. 26. and Palm. 47. were cited; Holt, C. J. observed, that, in the cases cited, the plaintiff had a property in the thing taken, but here the ship was not the master's but the owners. The master declared only as a particular officer and could recover for his particular loss. He admitted, however, that the master might have brought trespass, and declared upon his possession, which was sufficient to maintain that action. So where the plaintiff declared, that he exer

m Stansell v. Jollard, B. R. Trin. 43 G. 3. M. S. Lawrence, J.

n Pitts v. Gaince, Salk. 10. Lord Raym.

sition, that the master might have maintained trespass, in Moore v. Robinson, 2 B. & Ad. 817.

558. S. C. recognized, as to the po- o Kettle v, Hunt, Bull. N. P. 78.

cised the trade of a wheeler, and was possessed of several tools that related to the trade, viz. an axe, &c. and being so possessed, gained a livelihood, &c. and by the licence of the defendant deposited the tools in defendant's house, who had detained them two months after request, whereby the plaintiff had lost the benefit of his trade. After verdict, a motion was made in arrest of judgment, on the ground, that the plaintiff ought to have brought detinue or trover; but the court held the action well brought: for, if the fact was that the plaintiff had the goods again, detinue was not proper; and though a detainer upon request was evidence of a conversion, yet it was not a conversion; and the damages which he demands in this case being special, the action ought to be special. So where the plaintiff declared P, that he was possessed of a close of land and a decoy pond, to which wild fowl used to resort, and the plaintiff, at his own costs, had procured decoy ducks, nets, and other engines, for decoying and taking the wild fowl, and enjoyed the benefit in taking them; yet the defendant, intending to injure plaintiff in his decoy, and to drive away the wild fowl, and deprive him of his profit, discharged guns against the decoy pond, whereby the wild fowl were frighted away and forsook the pond. Upon not guilty pleaded, a verdict was found for the plaintiff, and 201. damages. On motion in arrest of judgment, Holt, C. J. observed that the action was maintainable; that although it was new in its instance, yet it was not new either in the reason or principle of it. For, 1st, the using or taking a decoy was lawful; 2ndly, this employment of his ground, to that use, was profitable to the plaintiff, as was the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken, is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. The C. J. added, that it had been objected, that the nature of the wild fowl was not stated; but this was not necessary; for the action was not brought p Keeble v. Hickeringill, 11 East, 574.

n. from Holt's MS. Holt's Rep. 14. 17. 19. 11 Mod. 74. 130. 3 Salk. 9.

Bull. N. P. 79. S. C. cited in Carrington v. Taylor, 11 East, 574. and 2 Campb. 258. S. C.

to recover damage for the loss of the fowl, but for the disturbance.

In a special action on the case, the declaration stated, that plaintiff's wife, unlawfully and against his consent, went away from him, and continued apart from him a long time, and that, during her absence, a large estate, real and personal, having been devised for her separate use, she thereupon was desirous of being reconciled, and of cohabiting with plaintiff, her husband; but that the defendant persuaded and enticed her to continue apart from the plaintiff, which she accordingly did until her death; whereby the plaintiff lost the comfort and society of his wife, and her assistance in his domestic affairs, and the profit and advantage of her fortune. After verdict for the plaintiff, with 30007. damages, on motion in arrest of judgment, it was objected, that there was not any precedent of any such action as this. Litt. s. 108. and 1 Inst. 81. b. were cited; but Willes, C. J. said that the general rule there mentioned was not applicable to the present case; that it would have been so, if there had never been any special action on the case before; that this form of action was introduced for this reason, that the law would never suffer an injury and a damage without a remedy; but that there must be new facts in every special action on the case (5).

q Winsmore v. Greenbank, Willes, 577.

(5) See Ashby v. White, Lord Raym. 957, Pasley v. Freeman, 3 T. R. 51. and Chapman v. Pickersgill, 2 Wils. 146. which last case was an action on the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff; Pratt, C. J. (in answer to the objection of novelty,) said, that this was urged in Ashby v. White, but he did not wish ever to hear it again; that this was an action for a tort; torts were infinitely various, not limited or confined; for there was not any thing in nature which might not be converted into an instrument of mischief, and this of suing out a commission of bankrupt falsely and maliciously was of the most injurious consequence in a trading country. Durnford's note. Willes, 581; see also Hargrave's Co. Lit. 81. b. n. (2).

CHAP. XIII.

COVENANT.

I. Of the Action for Breach of Covenant. II. Of the Exposition of Covenants.

III. Of the different Kinds of Covenants:

1. Express, and herein of express Covenants running with the

Land.

2. Implied.

3. Joint and Several.

4. Void and Illegal.

5. For quiet Enjoyment.

6. Not to assign without Licence.

IV. By whom the Action of Covenant may be main

tained:

1. Heir.

2. Executor.

3. Assignee.

V. Against whom the Action of Covenant may be maintained:

1. Heir.

2. Executor.

3. Assignee.

VI. Of the Declaration, and herein of dependent Covenants, Conditions precedent, and independent Covenants.

VII. Of the Pleadings:

1. Accord and Satisfaction.

2. Eviction.

3. Infancy.

4. Limitations, Statute of.

5. Nil habuit in tenementis.

6. Non est factum.

7. Non infregit conventionem.

8. Payment of Money into Court.

9. Performance.

10. Release.

11. Set off.

VIII. Evidence.

I X. Damages-Judgment.

I. 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 (1) the law has provided a remedy by action of covenant, wherein the party injured may recover damages (2) in proportion to the loss sustained. A party bringing covenant on a deed poll

(1) In F. N. B. 4to. Ed. 343. A. it is said that in London a man shall have a writ of covenant without a deed, for covenant broken, and it is so said by Vavasor, Serjt. in 22 Edw. 4. 2. a. cited in Comyn's Dig. London, N. 1. who refers to Priv. Lon. 149. in support of the same position.

(2) Where it is neccssary to enforce the performance of any agreement in specie, as the conveyance of land, execution of deeds, &c. or what is termed a specific performance, application must be made to a court of equity; for in the action of covenant damages only for the non-performance can be recovered.