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vered in damages, and the plaintiff shall not have damages according to his summing, but according to the matter. The plaintiff declared on an indenture of demise for years of certain coal-mines reserving a fourth part of the coal raised, or its value in money, at the election of the lessor; but if the fourth part fell short of the annual value of 4001. then reserving such additional rent as would make up that annual sum, to be rendered on the first day of every month in each year

of the term, by equal portions; and that the plaintiff elected to be paid in money; the breach assigned was that 9001, of the rent reserved for two years and three months was in arrear. On general demurrer, it was objected that the rent being reserved yearly, the breach was not well assigned, inasmuch as it included a fraction of a year; but the court overruled the demurrer, observing, that it could not be sustained on the construction of the covenant; for, though it spoke of an annual sum of 4001. to be made up in case the proportion of coal reserved should fall short of that sum, yet the rent was to be rendered monthly. But, even admitting it to be a yearly rent, the excess for the three months might be remitted, and judgment given for the residue; and Bayley, J. cited Incledon v. Crips, Salk. 658, and 2 Lord Raym. 814, as an authority in point as to the remittitur. Where lessee covenanted for himself and his assigns to plant a certain number of trees every years, and the breach was, that defendant had neglected to do it; it was holden sufficient without negativing that his assigns had done it, for the court will not intend an assignment.

A demurrer for misjoinder of breaches must be to the whole declaration, and not to the breach alone which is misjoinedh.

As to the necessary averments in actions for breach of covenant, for quiet enjoyment, see ante, Sect. III. 6.

I shall now proceed to explain the nature of dependent covenants and conditions precedent, concurrent acts or covenants, and mutual or independent covenants, subjoining to each division such cases as appear to afford the best illustration of the subject under consideration. And first, of dependent covenants and conditions precedent.

Conditions precedent. If A. covenants to do, or to abstain from doing, a certain act, in consideration of the prior

f Buckley v. Kenyon, 10 East, 139. g Gyse v. Ellis, Str. 228.

h Kingdon v. Nottle, 1 M. and S. 355.

performance of some act or covenant on the part of B., A.'s covenant is termed a dependent covenant, because B.'s right of suing A. for a breach of this covenant depends upon the prior performance, or that which the law considers equivalent to performance of the act or covenant to be performed by B. and the prior act or covenant, on the part of B. being in the nature of a condition precedent, is technically termed a condition precedent, the performance whereof must be shewn by B. in order to entitle him to recover damages against A. It may be remarked, that if the act, undertaken to be done, is dispensed with by the other party, it is sufficient so to state it on the record. Per Buller, J. in Hotham v. East India Company, Doug. 278. See an averment to this effect in Jones v. Barkley, Doug. 684.

The following cases will illustrate the nature of a dependent covenant and condition precedent, and the reader may collect from them the rules by which the courts have guided their decisions on this subject.

The plaintiff declared', that defendant by deed poll (39) agreed with plaintiff, that he, defendant, would accept of the plaintiff a quantity of South Sea stock, so soon as the receipts should be delivered out by the company, and would pay for the same such a sum on a certain day, next after the date of the deed, and then averred that defendant did not pay the money at the day; on general demurrer, because the plaintiff had not averred an assignment of the stock, or a tender; Pratt, C. J. delivering the opinion of the court, said, that the intent of the parties appeared to be, that one should have the money, and the other the stock; and not that either should perform his part of the agreement, and lay himself at the mercy of the other for the equivalent; that this was not a covenant entered into by both parties, upon which each would have his mutual remedy, but it was the deed-poll of the defendant only; and, therefore, though upon delivery or tender of the stock, the plaintiff would have his remedy for the money, yet the defendant, on the other side, upon pay, ment of the money, would not have any remedy to compel

i Lock v. Wright, Str. 569.

(39) In Strange's statement of the case, p. 569, it is said to have been by writing indented; but it is evident from the reasoning of the court, even in Strange (see p. 571,) that it was a deed-poll. See also S. C. 8 Mod. 40, where it is expressly stated to have been an action of covenant on a deed-poll.

the delivery of the stock, and therefore he should not be obliged to pay the money until the consideration for which it was payable was performed: that the word pro would either be a condition precedent or subsequent, as would best answer the intent of the parties; and in this case it must be a condition precedent, because otherwise the intention of the defendant to have the stock for his money, could never take effect. Judgment for defendant. Pratt, C. J. observed also, that the difference between a mutual covenant and a deed poll was taken and allowed in Pordage v. Cole, 1 Saund. 320. where the court were of opinion that the defendant had his remedy; “ otherwise (says the book) it would have been if the deed had been the words of the defendant only."

In covenant against a lessee for not repairing k, the declaration stated, that by indenture the defendant covenanted to repair the demised premises, and at the end of the term to surrender up the same in good repair, the lessor (the plaintiff) finding timber sufficient for such repairs: the breach assigned was for not repairing; the defendant pleaded that the plaintiff did not find timber sufficient; on demurrer, it was adjudged, that the finding the timber was a thing in its nature necessary to be done first, and therefore a condition precedent, the performance of which cught to have been averred in the declaration. So where in a covenant on an indenture of lease for seven years, for non-payment of rent!, it appeared that the lease contained the usual covenants, that the lessee should pay rent, repair, &c. and a proviso, that if the lessee, at the end of the first three or five years, should be desirous of quitting, and should give six months' notice thereof, before the expiration of the first three or five years, then, from and after the expiration of the first three or five years, and payment of all rents, and performance of the covenants on the part of the lessee, the indenture should be void; it was holden that the payment of rent, and performance of the other covenants, by the lessee, were conditions precedent to the lessee's determining the term at the end of the first three years, and that merely giving six months' notice, expiring with the first three years, was not sufficient for that purpose; Lord Kenyon, C. J. observing, that it had frequently been said, and common sense seemed to justify it, that conditions were to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument; and that tech

k Thomas v. Cadwallader, Willes, 496. 1 Porter v. Shepherd, B. R. E. 36 G. 3.

affirming judgment of C. B. 6 T. R. 665.

nical words, if there were any to encounter such intention, (and there were not in this case,) should give way to that intention : that it was impossible to read this lease, without seeing, that the parties intended, that the tenant should do every thing required of him, before he could put an end to the lease. So where by a policy of assurance against fire it was stipulatedm, that the assured sustaining any loss by fire should procure a certificate of the minister, churchwardens, and of some reputable householders of the parish, importing that they knew the character of the assured, and believed that he had sustained the loss by misfortune, and without fraud; it was holden, that the procuring such a certificate was a condition precedent to the right of the assured to recover, and that it was immaterial, that the minister and churchwardens wrongfully refused to sign the certificate; Lawrence, J. observing. that the cases were uniform to shew, that if a person , undertakes for the act of a stranger, that act must be done. See Routledge v. Burrell, 1 H. Bl. 254. and Oldman v. Bewicke, 2 H. Bl. 577. n. (a) to the same effect. If A. be bound to B. to pay ten pounds to C., A, tenders to C. and he refuseth, the bond is forfeited. i Inst. 208. b. If a man be bound in an obligation, with condition to enfeoff B. (who is a mere stranger) before a day, the obligor doth offer to enfeoff B. and he refuseth, the obligation is a forfeit, for the obligor hath taken upon him to enfeoff him, and his refusal cannot satisfy the condition, because no feoffment is made. 1 Inst. 209. a. So where in covenant on a charter-party", to recover the value of a ship against defendant, to whom she had been let to freight, for the purpose of carrying government stores to America, the declaration stated a covenant, that “if the ship were taken during the time she was in his Majesty's service, and it should appear to a court-martial that the master and ship’s company had made the utmost defence they were able, the value of the ship should be paid by the defendant;" and then averred a capture, the master and ship's company having made the utmost defence they were able, and that it would have appeared to a court-martial, &c. if the defendant had thought proper to have had an inquiry made in that respect by a court-martial. The defendant pleaded, that it had not appeared, &c. On demurrer to the plea, the court gave judgment for the defendant, observing that the charter-party annexed an express condition, that it should appear to a courtmartial, &c. and therefore the plaintiff was bound to shew that it had appeared, or that it arose from the default of the defendant that it had not. So where in covenant on a charter party of affreightment", whereby the plaintiff let his ship to the defendant to freight from Liverpool to W. and back to Liverpool, and agreed that the master should take on board a cargo of salt to W. and after delivering the same there, should take on board there a cargo of deals; in consideration of which the defendant agreed to pay to the plaintiff—“ in full for the freight for the said voyage, at the rate of so much per standard hundred for deals delivered at Liverpool, &c.; the freight to be paid one-fourth in cash on her arrival, and the remainder by an acceptance on London at four months' date.” The declaration then averred, that the ship, after carrying the cargo of salt to W. took on board there a cargo of deals, &c. and proceeded on her voyage towards Liverpool, &c. and whilst the ship was so proceeding, &c. and after she had performed a great part of her voyage, but before her arrival at Liverpool, on, &c. the ship was, by the force of the winds and waves, wrecked, and thereby became incapable of proceeding any further on the voyage, by reason whereof the deals were obliged to be put on shore for the preservation thereof; “ which deals, so unladen, the defendant afterwards accepted, and sold the same to his own use, whereby he became liable to pay to the plaintiff a proportionable part of the freight for the carriage of the deals from W. to Liverpool, &c.;" with an averment that a proportionable part amounted to such a sum. And the breach assigned, was, in the nonpayment of that sum. The defendant pleaded, that no part of the cargo of deals was delivered at Liverpool, according to the form and effect of the said charter-party. On special demurrer to the plea, assigning for caus”, that the defendant had not confessed and avoided or denied the matter alleged in the declaration, but had attempted to put in issue collateral matters, it was holden that the plea was good; Lawrence, J. observing, that when a ship is driven on shore, it is the duty of the master either to repair the ship, or to procure another, and having performed the voyage, he is then entitled to his freight; but he is not entitled to the whole freight, unless he perform the whole voyage, except in cases where the owner of the goods prevents him; nor is he entitled pro ratá, unless under a new agrement. Perhaps the subsequent receipt of these goods by the defendant might have

m Worsley v. Wood, in error from C.

B. B. R. T. 36 Geo. 3. 6 T. R. 710.

n Davis v. Mure, B. R. M. 22 Geo. 3.

cited in argument in Hotham v. East India Company, I T. R. 642.

o Cook v. Jennings, 7 T. R 381.

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