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 repairingk, 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 ought 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 stipulated, 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. 1 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 court

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, 1 T. R. 642.

per

martial, &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 formed 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

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

been evidence of a new contract between the parties (40); but here the plaintiff has resorted to the original agreement, under which the defendant only engaged to pay in the event of the ship's arrival at Liverpool. That event has not happened, and therefore the plaintiff cannot recover in this form of action.

By charter-party the freighter covenanted to pay to the owner freight at and after the rate of so much per ton, per month, for the term of six months at least, and so in proportion for less than a month, or for such further time than six months as the ship might be detained in the service of the freighter, until her final discharge, or until the day of her being lost, captured, or last seen or heard of: such freight to be paid to the commander of the ship in manner following: viz. so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods: it was holdenP, that this constituted one entire covenant, and that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, and that the ship having been lost on her outward voyage, the owner was not entitled to recover freight at so much per calendar month to the day of the loss.

p Gibbon v. Mendez, 2 B. and A. 17.

(40) The principal cases on the subject of apportionment of freight are Lutwidge v. Grey, D. P. 23 Feb. 1733.-Luke v. Lyde, 2 Burr. 882, and 1 Bl. R. 190.—Baillie v. Modigliani, Park's Ins. 53.; but not reported elsewhere. These three cases are stated at length in Abbott on Shipping. The case of Luke v. Lyde, was much commented upon in Cook v. Jennings, 7 T. R. 381. and in Mulloy v. Backer, 5 East. 316. See further on the same subject, Ward v. Felton, 1 East. 507.-Hunter v. Prinsep, 10 East. 378. Liddard v. Lopes, 10 East. 526.-Ritchie v. Atkinson, post. p. Christy v. Rowe, 1 Taunt. 300.-Mitchell v. Darthez, 2. N. C. 555.-" It is a settled rule, even in the case of deeds, that if there be a condition precedent in a deed, and it is not performed, and the parties proceed with the performance of other parts of the contract, although the deed cannot take effect, the law will raise an implied assumpsit. Upon this ground freight is daily recovered in actions of assumpsit on implied promises, substituted for the charter-parties by deed." Per Cur. in Burn v. Miller, 4 Taunt. 748. But see a limitation of this remark in Schack v. Anthony, 1 M. and S. 573. See also Pinder v. Wilks, 5 Taunt. 612.

From the preceding cases it may be collected, that whereever there is a condition precedent on the part of the plaintiff, performance, or that which is equivalent to performance (41), must be alleged and proved, otherwise the action cannot be supported; and, consequently, the defendant may plead non-performance of the condition precedent, in bar of the plaintiff's action: or, if the averment of performance be entirely omitted, or imperfectly made (42) the defendant may take advantage of it on demurrer.

The reader who is desirous of pursuing this branch of the subject further, is referred to the analogous cases under tit. Assumpsit, ante, p. 112. To the cases there abridged, the following may be added: Hesketh v. Gray, Say. 185.Collins v. Gibbs, 2 Burr. 899.-Campbell v. French, 6 T. R. 200. See also Smith v. Wilson, 8 East, 437. Storer v. Gordon, 3 M. and S. 308.

Having thus endeavoured to illustrate the nature of conditions precedent, I shall proceed to the next object of consideration, viz. concurrent acts or covenants.

Concurrent Acts.-Where reciprocal acts or covenants are to be performed by each party at the same time, they are technically termed concurrent acts or covenants, and in this case, as well as in the case of dependent covenants, one party cannot maintain an action against the other, without averring performance, or that which is equivalent to performance, of the acts or covenants to be performed on the plaintiff's part. As where, in covenant, the declaration stated, that by articles of agreement under seal, the plaintiff covenanted to convey to the defendant, on or before the 1st of August, 1797,

q Glazebrook v. Woodrow, 8 T. R. 366, cited in 2 Bos. & Pul. N. R. 236, and in Rose v. Poulton, 2 B. & Ad. 832.

(41) "Where a person, by doing a previous act, would acquire a right to a debt, or duty; by a tender to do the previous act, if the other party refuse to permit him to do it, he acquires the right as completely as if it had actually been done." Arg. Jones v. Barkley, Doug. 685, cited by Lord Ellenborough, C. J. delivering judgment, in Smith v. Wilson, 8 East, 443.-So if the plaintiff has been discharged by the defendant from the performance of the condition, the action may be maintained. See Jones v. Barkley, Doug. 684. So where the plaintiff has been prevented from the performance by the neglect and default of the defendant. 1 T. R. 645.

(42) As to what will be a sufficient averment in this respect, see Jones v. Barkley, Doug. 684.