COURTESY, OR CURTESY, Scotch 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 descend from
the brother or sister of the father of the person spoken of are called patternal
cousins; maternal cousins are those who are descended 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.
COVENANT, remedies. The name of an action instituted for the recovery
of damages for the breach 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.
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 judgment.
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 indenture, 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 covenantor 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 peculiar 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 lessee, 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 omission. 3 T. 11. 151.
It is not, in general, requisite to state tho consideration of the defendant's
promise, because a contract under seal usually imports a consideration; but when
the performance of the consideration constitutes a condition precedent, such
performance must be averred. So much only of the deed and covenant should be set
forth 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
breaches 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 strictly 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 nil debet,
have both been held to be insufficient. Com. Dig. Pleader, 2 V 4. In
Pennsylvania, by a practice peculiar to that state, the defendant may plead
covenants 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.
COVENANT, contracts. A covenant, conventio, in its most general
signification, means any kind of promise or contract, whether it be made in
writing or by parol. Hawk. P. C. b. 1, c. 27, 7, s. 4. In a more technical
sense, and the one in which it is here considered, a covenant is an agreement
between two or more persons, entered into in writing and under seal, whereby
either party stipulates for the truth of certain facts, or promises to perform
or give something to the other, or to abstain from the performance of certain
things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.; 4 Cruise, 446; Sheppard,
Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John.
85; 4 Day, 321.
2. It differs from an express assumpsit in this, that the former may be
verbal, or in writing not under seal, while the latter must always be by deed.
In an assumpsit, a consideration must be shown; in a covenant no consideration
is necessary to give it validity, even in a court of equity. Plowd. 308; 7 T. R.
447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites of a covenant;
and secondly, the several kinds of covenants.
4. - 1. The general requisites are, 1st. Proper parties. 2d. Words of
agreement. 3d A legal purpose. 4th. A proper form.
5. - 1st. The parties must be such as by law can enter into a contract. If
either for want of understanding, as in the case of an idiot or lunatic; or in
the case of an infant, where the contract is not for his benefit; or where there
is understanding, but owing to certain causes, as coverture, in the case of a
married woman, or duress, in every case, the parties are not competent, they
cannot bind themselves. See Parties to Actions.
6. - 2d. There must be an agreement. The assent or consent must be mutual for
the agreement would be incomplete if either party withheld his assent to any of
its terms. The assent of the parties to a contract necessarily supposes a free,
fair, serious exercise of the reasoning faculty. Now, if from any cause, this
free assent be not given, the contract is not binding. See Consent.
7. - 3d. A covenant against any positive law, or public policy, is, generally
speaking, void. See Nullity; Shep. Touchs. 163. As an example of the first, is a
covenant by one man that he will rob another; and of the last, a covenant by a
merchant or tradesman that he will not follow his occupation or calling. This,
if it be unlimited, is absolutely void but, if the covenant be that he shall not
pursue his business in a particular place, as, that he will not trade in the
city of Philadelphia, the covenant is no longer against public policy. See Shep.
Touchs. 164. A covenant to do an impossible thing is also void. Ib.
8. - 4th. To make a covenant, it must, according to the definition above
given, be by deed, or under seal. No particular form of words is necessary to
make a covenant, but any words which manifest the intention of the parties, in
respect to the subject matter of the contract, are sufficient. Sec numerous
examples in Bac. Abr. Covenant, A Selw. N. P. 469; Com. Dig. Covenant, A 2; 3
Johns. R. 44; 5 Munf. 483.
9. In Pennsylvania, Delaware, and Missouri, it is declared by statute that
the words grant, bargain, and sell, shall amount to a covenant that the grantor
was seised of an estate in fee, free from all incumbrances done or suffered by
him, and for quiet enjoyment against his acts. But it has been adjudged that
those words in the Pennsylvania statute of 1715, (and the decision will equally
apply to the statutory language in the other two states,) did not amount to a
general warranty, but merely to a covenant that the grantor had not done any
act, nor created any incumbrance whereby the estate might be defeated. 2 Bin.
95; 11 S. & R. 111, 112; 4 Kent, Com. 460.
10. - 2. The several kinds of covenants. They are, 1. Express or implied. 1.
An express, covenant, or a covenant in fact, is one expressly agreed between the
parties and inserted in the deed. The law does not require any particular form
to create an express covenant. The formal word "covenant" is therefore not
indispensably requisite. 2. Mod. 268; 3 Keb. 848; 1 Leon, 324; 1 Bing. 433; 8 J.
B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352; 12 East, 182 n.; 1 Bibb, 379; 2
Bibb 614; 3 John. 44; 5 Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The
words "I oblige;" "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself to pay so
much such a day, and so much such another day;" Hardr. 178; 3 Leon. 119, Pl.
199; are held to be covenants; and so are the word's of a bond. 1 Ch. Cas. 194.
But words importing merely an order or direction that other persons should pay a
sum of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)
11. - 1. An implied covenant is one which the law intends and implies, though
it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139, b;
Vaugnan's Rep. 118; Rawle on Covenants, 364. There are some words which of
themselves do not import an express covenant, yet being made use of in certain
contracts, have a similar operation and are called covenants in law. They are as
effectually binding on the parties as if expressed in the most unequivocal
terms. Bac. Ab. Covenant, B. A few examples will fully explain this. If a lessor
demise and grant to his lessee a house or lands for a certain term, the law will
imply a covenant on the part of the lessor, that the lessee shall during the
term quietly enjoy the same against all incumbrances. Co. Litt. 384. When in a
lease the words "grant," 1 Mod. 113 Freem. 367; Cro. Eliz. 214; 4 Taunt. 609;
"grant and demise, " 4 Wend. 502; "demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or "
demiserunt," I Show. 79 1 Salk. 137, are used, they are so many instances of
implied covenants. And the words "yielding and paying" in a lease, imply a
covenant on the part of lessee, that he will pay the rent. 9 Verm. 151; 3 Penn.
12. - 2. Real and personal. 1st. A real covenant is one which has for its
object something annexed to, or inherent in, or connected with land or other
property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22; Platt. on
Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily runs with the
land, as to pay rent, not to cut timber, and the like, is said to be an inherent
covenant. Shep. To. 161. A covenant real runs with the land and descends to the
heir; it is also transferred to a purchaser. Such covenants are said to run with
the land, so that he who has the one is subject to the other. Bac. Ab.
Covenants, E 2. See 2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586; 5
Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8 Cowen 206; 1 Dall.
210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81; 3 Harring. 338; 17 Wend. 136.
13. - 2. As commonly reckoned, there are five covenants for title, viz: 1.
Covenant for seisin. 2. That the grantor has perfect right to convey. 3. That
the grantee shall quietly possess and enjoy the premises without interuption,
called a covenant for quiet enjoyment. 4. The covenant against incumbrances. 5.
The covenant for futher assurance. 6. Besides these covenants, there is another
frequently resorted to in the United Staes, which is relied on more, perhaps,
than any other, called the covenant of warranty. See Rawle on Covenants for
Title, where the import and effect of these covenants are elaborately and
14. - 3. A personal covenant relates only to matters personal, as
distinguished from real, and is binding on the covenantur during life, and on
his personal representatives after his decease, in respect of his assets.
According to Sir William Blackstone, a personal convenant may be transformed
into a real, by the mere circumstance of the heirs being named therein, and
having assets by descent from the covenantor. 2 Bl. Com 304. A covenant is
personal in another sense, where the covenantor is bound to fulfil the covenant
himself; as, to teach an apprentice. F.N.B. 340, A.
15. Personal covenants are also said to be transitive and intransitive; the
former, when the duty of performing them passes to the covenantor's
representatives; the latter, when it is limited to himself; as, in the case of
teaching an apprentice. Bac. Ab. h.t.
16. As they affect each other in the same deed, covenants may be divided into
three classes. 1st. Dependent covenants are those in which the performance, of
one depends on the performance of the other; there may be conditions which must
be performed before the other party is liable to an action on his covenant. 8 S.
& R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209; 2 Stew. & Port. 60; 6
Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5 Shep. 232; 11 Verm.
549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P.
443, 444. To ascertain whether covenants are dependent or not, the intention of
the parties is to be sought for and regarded rather than the order or time in
which the acts are to be done, or the structure of the instrument, or the
arrangements of the covenant. 4 Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4
Rawle, 26; 5 Wend. 496; 2 John. 145; 13 Mass. 410; 2 W. & S. 227; 4 W. &
S. 527; Willis, 157; 7 T. R. 130; 8 T.R. 366; 5 B. & P. 223; 1 Saund. 320
17. - 2d. Some covenants are mutual conditions to be performed at the same
time; these are concurrent covenants. When, in these cases, one party is redy
and offers to perform his part, and the other refuses or neglects to perform
his, he who is ready and offers, has fulfilled his engagement, and may maintain
an action for the default of the other, though it is not certain that either is
obliged to do the first act. 4 Wash. C. C. 714; Dougl. 698; 2 Selw. N. P. 443;
Platt. on Cov. 71.
18.- - 3d. Covenants are independent or mutual, when either party may recover
damages from the other for the injury he may have received by a breach of the
covenants in his favor, and when it is no excuse for the defendant to allege a
breach of the covenants on the part of the plaintiff. 2 Wash. C. C. R. 456; 5
Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass. 410; 2 Pick. 300; 2
John. 145; 10 John. 203; Minor 21; 2 Bibb, 15; 3 Stew. 361; 1 Fairf. 49; 6 Binn.
166; 2 Marsh. 429; 7 John. 249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4
Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.
19. Covenants are affirmative and negative. 1st. An affirmative covenant is
one by whicb the covenantor binds himself that something has already been done
or shall be performed hereafter. Such L convenant will not deprive a man of a
right lawfully enjoyed by him independently of the covenant; 5 as, if the lessor
agreed with the lessee that he shall have thorns for hedges growing upon the
land, by assignment of the lessor's bailiff; here no restraint is imposed upon
the exercise of that liberty which the law allows to the lessee, and therefore
he may take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon, 251.
20. - 2d. A negative covenant is one where the party binds himself that he
has not performed and will not perform a certain act; as, that he will not
encumber. Such a covenant cannot be said to be performed until it becomes
impossible to break it. On this ground the courts are unwilling to construe a
covenant of this kind to be a condition precedent. Therefore, where a tailor
assigned his trade to the defendant, and covenanted thenceforth to desist from
carrying on the said business with any of the customers, and the defendant in
consideration of the performance thereof, covenanted to pay him a life annuity
of 190, it was held that if the words "in consideration of the performance
thereof," should be deemed to amount to a condition precedent, the plaintiff
would never obtain his annuity; because as at anytime during his life he might
exercise his former trade, until his death it could never be ascertained whether
he had performed the covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2
Keb. 674. The defendant, however, on a breach by plaintiff, might have his
remedy by a crossaction of covenant. There is also a difference between a
negative covenant, which is only in affirmance of an affirmative covenant
precedent, and a negative covenant which is additional to the affirmative
covenant. 1 Sid. 87; 1 Keb. 334, 372. To a covenant of the former class a plea
of performance generally is good, but not to the latter; the defendant in that
case must plead specially. Id.
21. Covenants, considered with regard to the parties who are to perform them,
are joint or several. 1st. A joint covenant is one by which several parties
agree to perform or do a thing together. In this case although there are several
covenantors there is but one contract, and if the covenant be broken, all the
covenantors living, must be sued; as there is not a separate obligation of each,
they cannot be sued separately.
22. - 2d. A several covenant is one entered into by one person only. It
frequently happens that a number of persons enter into the same contract, and
that each binds himself to perform the whole of it; in such case, when the
Contract is under seal, the covenantors are severally bound for the performance
of it. The terms usually employed to make a several covenant are " severally,"
or " each of us." In practice, it is common for the parties to bind themselves
jointly and severally, and then the covenant is both joint and several. Vide
Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant
23. Covenants are executed or executory. 1st. An executed covenant is one
which relates to an act already performed. Shep. To. 161.
24. - 2d. An executory covenant is one to be performed at a future time.
Shep. To. 161.
25. Covenants are obligatory or declaratory. 1st. An obligatory covenant is
one which is binding on the party himself, and shall never be construed to raise
a use. 1 Sid. 27; 1 Keb. 334.
26. - 2d. A declaratory covenant is one which serves to limit and direct
uses. 1 Sid. 27; 1 Heb. 334.
27. Covenants are principal and auxiliary. 1st. A principal covenant is one
which relates directly to the principal matter of the contract entered into
between the parties; as, if A covenants to serve B for one year.
28. - 2d. An auxiliary covenant is one, which, not relating directly to the
principal matter of the contract between the parties, yet relates to something
connected with it; as, if A covenants with B, that C will perform his covenant
to serve him for one year. In this case, if the principal covenant is void, the
auxiliary is discharged. Anstr. 256.
29. Covenants are legal or illegal. 1st. A legal covenant is one not
forbidden by law. Covenants of this kind are always binding on the parties.
30. - 2d. An illegal covenant is one forbidden by law, either expressly or by
implication. A covenant entered into, in violation of, the express provision of
a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96; 6 N. H. Rep.
225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4 Halst. 252. A
covenant is also void, if it be of immoral nature; as, a covenant for future
illicit intercourse and cohabitation; 3 Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep.
517; 1 Esp. 13; 1 B. P. 340; or against public policy; 5 Mass. 385; 7 Greenl.
113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3 Day, 145; 2
McLean, 464; 7 Watts, 152; 5 Watts & S. 315; 5 How. Miss. 769; Geo. Decis.
part 1, 39 in restraint of trade, when the restraiut is general; 21 Wend. 166;
19 Pick. 51; 6 Pick. 206; 7 Cowen, 307; or fraudulent between the parties; 5
Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111; or third persons; 3
Day, 450; 14 S. & R. 214; 3 Caines, 213; 15 Pick. 49; 2 John. 286 12 John.
31. Covenants, in the disjunctive or alternative, are those which give the
covenantor the choice of doing, or the covenontee the choice of having,
performed one of two or more things at his election; as, a covenant to make a
lease to Titus, or pay him one hundred dollars on the fourth day of July, as the
covenantor, or the covenantee, as the case may be, shall prefer. Platt on Cov.
32. Collateral covenants are such as concern some collateral thing, which
does not at all, or not so immediately relate to the thing granted; as, to pay a
sum of money in gross, that the lessor shall distrain for rent, on some other
land than that which is demised, or the like. Touchs. 161; 4 Burr. 2446; 2 Wils.
R. 27; 1 Ves. R. 56. These covenants are also termed covenants in gross. Vide 5
Barn. & Ald. 7, 8; Platt on Cov. 69, 70.
COVENANT NOT TO SUE. This is a covenant entered into by a party who
had a cause of action at the time of making it, and by which he agrees not to
sue the party liable to such action.
2. Covenants of this nature, are either covenants perpetual not to sue, or
covenants not to sue for a limited time; for example, seven years.
3. - 1. Covenants perpetual not to sue. These will be considered with regard
to their effect as relates, 1. To the covnantee; 2. To his partners or
4. - 1. A covenant not to sue the covenantee at all, has the effect of a
release to him, and may be pleaded as such to avoid a circuity of action. Cro.
EIiz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C. Holt, 178; 2 Salk.
575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17 Mass. 623.
And see 11 Serg. & Rawle, 149.
5. - 2. Where the covenantee is jointly and severally bound with another to
the covenantor, a covenant not to sue him will be no protection to the other wbo
may be sued on his several obligations and such a covenant does not mount to a
release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R. 168; 6 Munf. 6; 1 Com.
139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628; 16 Mass. 24; 8 Mass. 480. A
covenant not to sue, entered into by only one of several partners, cannot be set
up as a release in an action by all the partners. 3 P. & D. 149.
6. - 2. Covenant not to sue for - a limited time. Such a covenant does not
operate as a release, nor can it be pleaded as such, but is a covenant only for
a breach of which the obliger may bring his action. Carth. 63; 1 Show. 46; Comb
123, 4; 2 Salk. 573; 6 Wend. 471.
COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a lease,
by which the lessor covenants or agrees that the tenant shall quietly enjoy the
premises leased. 11 East, 641.
2. Such a covenant is express or implied; express, when it is so mentioned in
the deed it is implied, either from the words used, or from the conduct of the
lessor. The words "grant" or "demise" are held to amount to an implied covenant
for quiet enjoyment, unless afterwards restrained by a qualified express
covenant. 1 Chit. Pr. 344.
COVENANT TO STAND SEISED TO USES. A species of conveyance which
derives its effect from the statute of uses, and operates without transmutation
2. By this conveyance, a person seised of lands, covenant's that he will
stand seised of them to the use of another. On executing the covenant, the other
party becomes seised of the use of the land, according to the terms of the use;
and the statute immediately annexes the possession to the use. This conveyance
has the same force and effect as a common deed of bargain and sale; the great
distinction between them is, that the former can only be made use of among near
domestic relations, for it must be founded on the consideration of blood or
marriage. 2 Bl. Com. 338; 2 Bouv. Inst. n. 2080; 4 Kent Com 480; Lilly's Reg.h.
t.; 1 Vern. by Raithby, 40, n.; Cruise, Dig. tit. 32, c. 10; 11 John. R. 337; 1
John. Cas. 91; 7 Pick. R. 111; 1 Hayw.,R. 251, 259, 271, note; 1 Conn. R. 354;
20 John. R. 85; 4 Mass. R. 135; 4 Hayw. R. 229; 1 Cowen, R. 622; 3 N. H. Rep.
234; 16 John. R. 515; 9 Wend. R. 641; 7 Mass. R. 384.
COVENANT FOR TITLE. An assurance to the purchaser that the grantor has
the very estate in quantity and quality which he purports to convey. 11 East,
642. See 4 Dall. Rep. 439.
COVENANTEE. One in whose favor a covenant is made.
COVENANTOR. One who becomes bound to perform a covenant.
2. To become a covenantor a person must be sui juris, and intend, at the time
of becoming bound, to covenant to perform some act mentioned in the covenant. He
can be discharged from his covenant by performance, or, by the act of the
covenantee, as the non-performance of a condition precedent, a release, or a
rescission of the contract.
COVENANTS PERFORMED, pleading. In Pennsylvania, the defendant may
plead covenants performed to an action of covenant, and upon this plea, upon
informal notice to the plaintiff, he may give anything in evidence which he
might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 S. & R. 105. And this
evidence, it seems, may be given in the circuit court without notice unless
called for. 2 Wash. C. C. R. 456.
COVENTRY ACT, criminal law. The common name for the statute 22 and 23
Car. II. c. 1; it having been enacted in consequence of an assault on Sir John
Coventry in the street, and slitting his nose, in revenge, as was supposed, for
some obnoxious words uttered by him in parliament.
2. By this statute it is enacted, that if any person shall, of malice
aforethought, and by laying in wait, unlawfully cut or disable the tongue, put
out an eye, slit the nose, cut off the nose or lip, or cut off or disable any
limb, or member of any other person, with intent to maim or disfigure him, such
person, his counsellors, aiders and abettors, shall be guilty of felony, without
benefit of clergy. 4 Bl. Com. 207. This statute is copied by the act of the
legislature of Pennsylvania, of April 22, 1794, s. 6, 3 Smith's Laws of Pa. 188;
and the offence is punished by fine and imprisonment. For the act of
Connecticut, see 2 Swift's Dig. 293.
COVERT, BARON. A wife; so called, from her being under the cover or
protection of her hushand, baron or lord.
COVERTURE. The state or condition of a married woman.
2. During coverture, the being of the wife is civilly merged, for many
purposes, into that of her hushand; she can, therefore, in general, make no
contracts without his consent, express or implied. Com. Dig. Baron and Feme, W;
Pleader, 2 A 1; 1 Ch. Pl. 19, 45; Litt. s. 28; Chit. Contr. 39; 1 Bouv. Inst. n.
3. To this rule there are some exceptions: she may contract, when it is for
her benefit, as to save her from starvation. Chit. Contr. 40.
4. In some cases, when coercion has been used by the hushand to induce her to
commit crime, she is exempted from punishment. 1 Ha1e, P. C. 516; 1 Russ. Cr.
COVIN, fraud. A secret contrivance betwen two or more persons to
defraud and prejudice another of his rights. Co. Litt 357, b; Com. Dig. Covin,
A; 1 Vin. Abr. 473. Vide Collusion; Fraud.
COW. In a penal statute which mentions both cows and beefer's, it was
held that by the term cow, must be understood one that had a calf. 2 East, P. C.
616; 1 Leach, 105.
COWARDICE. Pusillanimity; fear.
2. By the act for the better government of the navy of the United States,
passed April 21, 1800, 1 Story, L. U. S. 761; it is enacted, art. 5, "every
officer or private who shall not properly observe the orders of his commanding
officer, or shall not use his utmost exertions to carry them into execution,
when ordered to prepare for, join in, or when actually engaged in battle; or
shall, at such time, basely desert his duty or station, either then, or while in
sight of an enemy, or shall induce others to do so, every person so ofending,
shall, on conviction thereof by a general court martial, suffer death, or such
other punishment as the said court shall adjudge.
3. - Art. 6. "Every officer or private who shall, through cowardice,
negligence, or disaffection, in the time of action, withdraw from, or keep out
of battle, or shall not do his utmost to take or destroy every vessel which it
is his duty to encounter, or shall not do his utmost ondeavor to afford relief
to ships belonging to the United States, every such offender shall, on
conviction thereof by a general court martial, suffer death, or such other
punishment as the said court shall adjudge."
4. By the act for establishing rules and articles for the government of the
armies of the United States, passed April 10, 1806, it is enacted, art. 52, "
any officer or soldier, who shall mishehave himself before the enemy, run away,
or shamefully abandon any fort, post, or guard, which he or they may be
commanded to defend, or speak, words inducing others to do the like, or shall
cast away his arms and ammunition, or who shall quit his post or colors to
plunder and pillage, every such offender, being duly convicted thereof, shall
suffer death, or such other punishment as shall be ordered by the sentence of a
general court martial."
CRANAGE. A toll paid for drawing merchandise out of vessels to the
wharf, so called, because the instrument used for the purpose is called a crane.
8 Co. 46.
TO CRAVE. To ask; to demand.
2. This word is frequently used in pleading; as,-to crave oyer of a bond on
which the suit is brought; and in the settlement of accounts, the accountant
general craves a credit or an allowance. 1 Chit. Pr. 520. See Oyer.
CRAVEN. A word of obloquy, which in trials by battel, was pronounced
by the vanquished; upon which judgment was rendered against him.
CREANCE. This is a French word, which, in its extensive sense,
signifies claim; in a narrower sense it means a debt. 1 Bouv. Inst. n. 1040,
CREDENTIALS, international law. The instruments which authorize and
establish a public minister in his character with the state or prince to whom
they are addressed. If the state or prince receive the minister, he can be
received only in the quality attributed to him in his credentials. They are, as
it were, his letter of attorney, his mandate patent, mandatum manifestum.
Vattel, liv. 4, c. 6, 76.
CREDIBILITY. Worthiness of belief. To entitle a witness to
credibility, he must be competent. Vide Competency.
2. Human testimony can seldom acquire the certainty of demonstration.
Witnesses not unfrequently are mistaken or wish to deceive; the most that can be
expected is that moral certainty which arises from analogy. The credibility
which is attached to such testimony, arises. from the double presumption that
the witnesses have good sense and intelligence, and that they are not mistaken
nor deceived; they are further presumed to have probity, and that they do not
wish to deceive.
3. To gain credibility, we must be assured, first, that the witness has not
been mistaken nor deceived. To be assured as far as possible on this subject, it
is proper to consider the nature and quality of the facts proved; the quality
and person of the witness; the testimony in itself; and to compare it with the
depositions of other witnesses on the subject, and with known facts. Secondly,
we must be satisfied that he does not wish to deceive: there are strong
assurances of this, when the witness is under oath, is a man of integrity, and
disinterested. Vide Arch. Civ. Pl. 444; 5 Com. Dig. 449; 8 Watts, R. 227;
CREDIBLE WITNESS. A credible witness is one who is competent to give
evidence, and is worthy of belief. 5 Mass. 219 17 Pick. 134; 2 Curt. Ecc. R.
336. In deciding upon the credibility of a witness, it is always pertinent to
consider whether he is capable of knowing the thing thoroughly about which he
testifies. 2. Whether he was actually present at the transaction. 3. Whether he
paid, sufficient attention to qualify himself to be a reporter of it; and 4.
Whether he honestly relates the affair fully as he knows it, without any purpose
or desire to deceive, or suppress or add to the truth.
2. In some of the states, as Delaware, Illinois, Maine, Maryland, Rhode
Island, Vermont, and Virginia, wills must be attested by credible witnesses. See
Attesting Witness; Competent Witness; Disinterested Witness; Respectable
Witness; and Witness.