Definition
A plea in the action of covenant, specific to Pennsylvania practice, by which a defendant asserts that the covenants in question have been performed. On informal notice to the plaintiff, the plea operates as a general defensive vehicle allowing the defendant to introduce in evidence anything that might otherwise have been formally pleaded. When combined with the words "absque hoc" (without this), the plea takes on the additional character of a traverse — denying the plaintiff's contrary assertion — effectively functioning as both a confession of the covenant's existence and a denial of breach.
In plain terms: where a plaintiff sues on a covenant (a formal promise under seal), the defendant pleads "covenants performed," giving notice that the defense rests on the ground that the obligations were in fact fulfilled. The plea's procedural value lies in its breadth — it collapses what might otherwise require multiple specific pleas into a single general defense.
Common Confusion
"Covenants performed" is easily confused with a general plea of performance in contract actions. The distinction matters: this plea is technically confined to the action of covenant — a distinct common law form of action requiring a sealed instrument — and is not interchangeable with defenses in assumpsit or other contract forms. Researchers encountering "performance" pleas in historical Pennsylvania records should verify which form of action is at issue before treating the plea as equivalent to modern affirmative defenses of performance.
The plea also should not be confused with the substantive doctrine of substantial performance, which addresses whether incomplete performance may discharge contractual obligations. "Covenants performed" is a procedural plea within a specific form of action, not a doctrinal standard for measuring sufficiency of performance.
Why It Matters in Research
This term is a creature of pre-codification Pennsylvania pleading practice and has essentially no life in modern procedure. Researchers will encounter it almost exclusively in Pennsylvania court records, reports, and practice manuals from the colonial period through the mid-nineteenth century, before the adoption of code pleading reforms that abolished the common law forms of action.
The key navigational point: when searching Pennsylvania case law or court records from the 1780s through the 1840s, "covenants performed" signals a formal pleading posture rather than a substantive finding. A case turning on this plea may involve complex underlying facts about actual contractual performance, but the plea itself tells you only about the procedural vehicle chosen — not the outcome on the merits.
The "informal notice" element is worth particular attention. Bouvier notes that in circuit court proceedings, this evidence could apparently be introduced without notice unless specifically called for — a procedural nuance that diverges from strict state practice and could affect how a researcher reads a federal-era Pennsylvania record versus a state record from the same period.
The truncated Black's 2nd Edition entry (ending mid-sentence on the "absque hoc" variant) suggests the plea had recognized subtypes that are better reconstructed from Bouvier and the original Dallas and Yeates reporters cited.
Historical Dictionary Support
All three source dictionaries agree on the core: this is a Pennsylvania-specific plea to an action of covenant, enabling the defendant to present broadly any evidence admissible in defense upon giving notice to the plaintiff. The primary citation across all three — 4 Dallas 439 — anchors the plea to early Pennsylvania Supreme Court authority. Bouvier adds two additional Pennsylvania citations (2 Yeates 107; 15 S. & R. 105) and the circuit court notice exception from 2 Washington C.C. 456, making Bouvier the richest source for practitioners and researchers who need to trace the plea's procedural contours.
Black's 2nd Edition begins to develop the "absque hoc" variant but the entry is cut short. This truncation is a genuine research trap: a researcher relying solely on Black's 2nd Edition will miss that the plea with "absque hoc" operates as a traverse, changing its legal effect substantially. Bouvier and the underlying reporters are essential supplements.
None of the historical dictionaries address the plea's disappearance under code pleading, nor do they situate it within the broader collapse of the forms of action in Pennsylvania — context that a modern researcher needs to understand why this term no longer appears in contemporary practice materials.
Jurisdictional Note
This plea is specific to Pennsylvania common law practice and has no recognized counterpart in the general common law of other American jurisdictions. Researchers should not expect to find it in English common law sources or in the practice of other states, even those that otherwise followed English pleading forms closely.
Encyclopedia Cross-Reference
Performance — Duties and Order of Performance (The Law Mind Contracts & Commercial Law Encyclopedia)
Performance — Substantial Performance Doctrine (The Law Mind Contracts & Commercial Law Encyclopedia)