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ing a compensation in damages against the defendant, for not loading the ship with a cargo of cotton at Bombay. Instead of proceeding by the direct and usual course from the Cape to Bombay, the captain made a deviation to the island of Mauritius; and in consequence of such deviation, the defendant's agents at Bombay refused to find a cargo. The jury were directed to consider, whether the deviation was of such a nature and description as to deprive the freighter of the benefit of the contract into which he had entered; and if such was their opinion, the defendant was excused, by the act of the plaintiff's captain, from furnishing a cargo. The jury determined the question in the affirmative, and found a verdict for the defendant; which the court refused to disturb.
Defendant by charter-party covenanted to load a ship at Jamaica with a complete cargo of sugar, and to pay freight for the same at the rate of 10s. 6d. per cwt. The agent of the defendant tendered to the captain a cargo, but insisted upon his signing bills of lading for it, at the rate of 10s. per cwt. The captain refused to take it on board on these terms. Lord Ellenborough held, that the defendant was liable for dead freight. Hyde v. Willis, 3 Campb. 202.
By a charter-party a ship was described to be of the burden of two hundred and sixty-one tons, and the freighter covenanted to load a full and compléte cargo: it was holden, that the loading of goods equal in number of tons to the tonnage described in the charter-party was not a performance of this covenant; but that the freighter was bound to put on board as much goods as the ship was capable of carrying with safety. Hunter v. Fry, 2 B. & A. 421. By a charter-party the freighter agreed to pay for the ship 2001. per month, for six months certain, and so in proportion for any longer time that she might be in his employ; the ship was to be kept in repair by the owner. Before the termination of the time, repairs were necessary, which occupied twenty-eight days; it was holden, that the freighter was not entitled to deduct those days in calculating the period for which he was to pay freight. Ripley v. Scaife, 5 B. and C. 167.
Money paid in advance for freight cannot be recovered back. De Silvale v. Kendall, 4 M. and S. 37, recognized in Saunders v. Drew, 3 B. and Ad. 450.
For a further illustration of the subject of conditions, see Blackwell v. Nash, Str. 535.-Wyvill v. Stapelton, Str. 615. -Martindale v. Fisher, 1 Wils. 88, and ante, p. 120. See also Boone v. Eyre, 2 Bl. R. 1312, and Terry v. Duntze, 2 H. Bl. 389. N. By R. G. H. T. 4 W. 4, two counts upon
the same charter-party are not to be allowed. But a count for freight upon a charter-party, and for freight pro ratá itineris, upon a contract implied by law, are to be allowed.
It remains only to add a similar observation to that which was made at the close of the third section, tit. Assumpsit, ante, p. 121, viz. that there are not any precise technical words required to constitute a condition precedent, or a dependent or independent covenant; whether a condition be precedent or subsequent, or a covenant be dependent or independent, must be gathered from the words and nature of the agreement, which is to be construed according to the intention of the parties, as far as that can be collected from the instrument; and however transposed the covenants may bey, their precedence must depend on the order of time in which the intent of the transaction requires the performance. When it is once established, that the stipulation of one party is a condition precedent to the performance of the covenant by the other party, it follows as a necessary consequence, that an action cannot be maintained unless performance, or that which the law considers as equivalent to performance, be averred and proved. But where a right of action is once vested in the plaintiff, liable, however, to be divested by the non-performance of a condition subsequent, that is matter of defence only, and must be shewn by the defendant.
VII. Of the Pleadings:
1. Accord and Satisfaction.
4. Limitations, Stat. of.
5. Nil habuit in tenementis.
6. Non est factum.
7. Non infregit conventionem.
8. Payment of Money into Court.
y Per Lord Mansfield, C. J. in King- z Hotham v. East India Company, ston v. Preston, Doug. 690, 1.
1 T. R. 638.
1. Accord and Satisfaction.
ACCORD with satisfaction is a good plea in discharge of damages for covenant broken (43).
In covenant against an assignee for not repairing a house a, the defendant pleaded accord between him and the plaintiff, and execution thereof, in satisfaction and discharge of the want of repairs; on demurrer, it was objected, that this action of covenant was founded upon the deed, which could not be discharged except by matter of as high a nature, and not by any accord of matter in pais: but it was resolved by the court, that the plea of the defendant was good; and this distinction was taken; where a duty accrues by the deed, and is ascertained at the time of making the writing, as by covenant, bill, or bond, to pay a sum of money; in that case, the duty, which is certain, takes its essence and operation originally and solely by the writing, and therefore it must be avoided by matter of as high a nature, although the duty be merely in the personaltyb (44). But where no certain duty accrues by the deed, but a wrong or subsequent default, together with the deed, gives an action to recover damages, which are only in the personalty, for such wrong or default, accord with satisfaction is a good plea, as, in this case, the covenant does not give the plaintiff, at the time of making it, any cause of action, but the tort or default in not repairing the house, together with the deed, gives an action to recover damages for the want of reparation. The action is not founded merely on the deed, but on the deed and the subsequent wrong; which wrong is the cause of action, and for which damages
a Blake's case, 6 Rep. 43. b. Cro. Jac. 99. S. C. by the name of Alden v. Blague.
b See next case.
(43) In Snow v. Franklin, Lutw. 358, to covenant for non-payment of rent, the defendant pleaded accord with satisfaction of the covenant, before any breach. The plea was holden bad on demurrer. See also Kaye v. Waghorn, 1 Taunt. 428. S. P.
(44) A collateral agreement by parol cannot be pleaded to invalidate a claim arising upon a deed. Hence to debt on bond, conditioned for the performance of an award, a parol agreement between the parties to waive and abandon the award cannot be pleaded.Braddick v. Thompson, 8 East, 344. See Thompson v. Brown, 7 Taunt. 656.-Sellers v. Bickford, 8 Taunt. 31.
shall be recovered; and in every action where compensation is demanded, by way of damages only, accord executed is a good bar.
The plaintiff being seised in fee of a messuage and lands, one parcel of which, consisting of about one-third, lay contiguous to the land of one E. P. in consideration of a sum of money, and the covenant hereinafter mentioned, by indenture released the said parcel of land to E. P. in fee, who thereupon covenanted, for herself and her assigns, that she would, from time to time, and at all times thereafter, pay onethird part of all the taxes and assessments that should be imposed on the said messuage and land; the parcel of land came to the defendant by assignment, who neglected to pay the one-third part of the taxes for several years. The plaintiff having declared for a breach of covenant, in the years 1759, 1760, 1, 2, 3, 4, 5, and 6, the defendant pleaded, that in Michaelmas Term, 1766, he commenced an action against the plaintiff, and one R. J., for certain trespasses committed by them upon the lands and goods of the defendant; and thereupon, afterwards, to wit, on the 22nd January, 1767, it was agreed (not saying by deed,) that the defendant should put an end to his suit, and that plaintiff and R. J. should pay a certain sum of money, and costs; and that the plaintiff should relinquish all damages and demands which he then had against the defendant; the plea then averred, that the defendant did not further prosecute his suit against the plaintiff and R. J., and prayed judgment of the action. On general demurrer to this plea, it was objected, that a covenant to pay money, which was by deed, could not be discharged without deed: and of this opinion was the court, and gave judgment for plaintiff. Blake's case, 6 Rep. 44. a. was cited.
Covenant by the heir in reversion against executor of tenant for life, for breach of covenant in testator, in not repairing the house demised; plea, that the testator, tenant for life, died on such a day, and that afterwards it was agreed, between the plaintiff and defendant, that defendant should quietly depart and leave possession to the plaintiff, and, in consideration thereof, the plaintiff agreed to discharge him from the breach; and averred, that within five days from the day of agreement, he left the house. On demurrer, the plea was holden to be bad; for the time was not fixed by the terms of the agreement, when the executor should depart; and, although it was averred that he departed within five days, yet
c Rogers v. Payne, MSS. 2 Wils. 276. d Samford v. Cutcliffe, Yelv. 124. S. C. briefly stated. Russell v. Do. 3 Lev. 189.
that would not aid the first uncertainty; for the agreement was the foundation of the whole, which ought to be certain, when it should be performed.
To covenant for rent arrear, the lessee may pleade, that he was evicted, by the lessor, from the demised premises, and kept out of possession until after the rent in question became due; for an eviction occasions a suspension of the rent; but a mere trespass will not: for where to covenant for rentarrear for a dwelling-housef, the defendant pleaded that the lessor had taken away a pent-house, fixed to the dwellinghouse, and part of the demised premises; on demurrer, the court held that the fact stated in the defendant's plea being a mere trespass, for which the defendant might have a remedy by action, would not operate as a suspension of the rent. Although rent is suspended by an entry into part, yet on a demise of a messuage with the appurtenances, the covenant to repair is not suspended by an entry into the back yard, the lessee remaining in possession of the messuage. Snelling v. Stag, Bull. N. P. 165.
It is to be observed, that if a tenant would excuse himself from payment of rent upon an eviction by a stranger, he must shew that such stranger had a good title to evict him: and, in order to give the plaintiff a proper opportunity of controverting such title, the defendant must shew particularly how it arises; for, if it were sufficient to allege that the stranger had a good title, a single issue could not be taken on it; and as the legality, as well as the fact of the title, would be complicated together, the jury would be entangled with questions of law, which are proper for the consideration of the court only. To avoid this inconvenience, it is necessary that the title should be specified.
At the common law, infants are not bound by covenants which operate to their disadvantage. Hence a defendant
e Dalston v. Reeve, Lord Raym. 77.
g Dorrell v. Andrews, Hob. 190.
h Per Lord Hardwicke, C. J. in Jordan v. Twells, B. R. M. 9 Geo. 2. MSS. and Ca. Temp. Hardw, 172.