tial inclinations and dispositions towards one child more than another. If his partiality does rise so high, and he will make a difference, he must do it directly, absolutely, and by an unqualified gift, surrendering all his own right and interest. He must give out and out. He must not, however, exercise his power by an act which is to take effect, not against his own interest, but only at a time when his own interest will cease." [MAULE, J.-You treat this covenant as an insurance upon the wife's life?] The covenantor must answer in damages. [MAUle, J.-In the event that has happened, nothing that the father could do would relieve him from an action for a breach of covenant. If he had left his whole estate to the husband, or to the daughter's children, even that would have been no performance of the covenant.] He is, in effect, an insurer. Marriage and the birth of children was contemplated; and the intention of the covenant was, to make provision for such issue, as well as for the covenantor's daughter. The covenant is in the alternative,—to make the provision by deed or will: the covenant itself being absolute; the mode of performance only conditional. Laughter's case, 5 Co. Rep. 21 b(a)-where it was laid down, that, where the condition of a bond consists of two parts, in the disjunctive, and both are possible at the time of the bond made, and afterwards one of them becomes impossible, by the act of God, the obligor is not bound to perform the other part,—has been distinctly overruled by the authorities cited in Mr. Fraser's note A.- In *Studholmes v. Mandell,

1 Ld. Raym. 279, 1 Lutwyche, 688, the court said that the rule [*8 and reason of Laughter's case ought not to be taken so largely as Coke has reported it, but according to the nature of the case: and TREBY, C. J., puts this case,-A., in consideration of 500l., bound himself in a bond, with condition either to make a lease for the life of the obligee before such a day, or to pay him 1007. The obligee died before the day, yet, in the time when ST. JOHN was chief justice of C. B., it was adjudged that the obligor should pay the 1007.; and ST. JOHN there declared that he knew well some of the judges who gave the resolution in Laughter's case, and that they denied that they laid down such a rule as Coke has reported; yet the whole court held that the principal case of Laughter was good law. Vide S. C., somewhat differently reported, Lutw. fo. 693. The reporter observes that the case put by TREBY seems to be indistinguishable in reason from Laughter's case. So, also, in Drummond v. The Duke of Bolton, Sayer, 243, the court said that the doctrine in Laughter's case, which does not appear to be laid down by the court, but to be the reason given by the reporter for the judgment of the court, is laid down too largely. And, in Da Costa v. Davis, 1 B. & P. 242, it seems to have been taken for granted that the impossibility of performing one condition, is no excuse for not performing

(a) S. C. per nom. Eaton and Monox v. Laughter, Cro. Eliz. 398; S. C. per nom. Eaton's case, F. Moore, 357; S. C. per nom. Eaton and Monney v. Laughter, Poph. 98.

the other. And vide the dictum of WALMSLEY, More v. Morecomb, Cro. Eliz. 864, F. Moore, 645, which seems contrà to Laughter's case: and, note, in the case of an award, where one of two matters is awarded in the disjunctive, and one alternative is impossible or uncertain, that alternative must be taken which can be performed: Simmonds v. Swaine, 1 Taunt. 549." Wood v. Bate, Palmer, 513, and Eaton v. Butter, Palmer, 552, so far as it is practicable to decipher *them, seem to be inconsistent with the ruling in Laughter's case. *9] In Prebble v. Boghurst, 7 Taunt. 538, 1 J. B. Moore, 258 (E. C. L. R. vol. 4), a bond recited a marriage intended, and the wife's present and expectant property, and that, in consideration thereof, and of love, and to make a provision for the wife and the issue of the marriage, in case it should take effect, the husband had agreed to pay a sum to trustees, and also had agreed, that, if at any time during his natural life he should be seised of any hereditaments in possession, he would, by such conveyances as counsel should advise, settle the same on the wife and the issue of the marriage, in such parts and proportions, and to such use and uses, as should be thought requisite, the better to make a provision for her, in case she should survive; and the condition was, for payment of the sum to trustees, and also that, if the obligor should, during life, become seised of hereditaments, he should settle the same upon the wife and the issue of the marriage, as counsel should advise, in such parts and proportions, and to such use and uses as should be thought requisite, the better to make a provision for her, in case she should survive the obligor: the husband had issue, survived the wife, and afterwards acquired lands, but made no settlement thereof on the issue:-this court held that the bond was not forfeited; but that decision was afterwards overruled by Lord ELDON, assisted by RICHARDS, C. B., and ABBOTT, J.(a) There are many authorities to show that the circumstance of one alternative becoming impossible, whether by the act of God, or otherwise, will not relieve the covenantor from the performance of the other. [MAULE, J.-A man may, if he chooses, covenant that it shall or shall not rain to-morrow. (b)] In that *case he is an insurer, and shall answer in damages. In Da Costa *10] v. Davis, it was held, that, where the condition of a bond is, to do one of two things, showing that one could not be performed, is no good reason for not having performed the other. The like was held by PARKE, B., in Stevens v. Webb, 7 C. & P. 60 (E. C. L. R. vol. 32). In that case, A. was in custody on a ca. sa., and, in consideration of the plaintiff's consenting to his discharge, B. agreed to pay 35l., or to surrender A. to the sheriff: A. on a subsequent day offered to surren

(a) See Prebble v. Boghurst, 1 Swanst. 309.

(b) See Com. Dig. Condition (D 2), citing 1 Roll. Abr. 420 (D.), pl. 1; 5 Vin. Abr. 111 (D a), pl. 1, which refers to 22 E. 4, 26 (Sir James Harrington's case, M. 22 E. 4, fo. 24, pl. 3), where this was said obiter by BRIAN, C. J. of C. P.

der himself to the sheriff, who would not re-take him, as the plaintiff had consented to his discharge: and the learned baron ruled that the agreement was absolute for the payment of the 351., and that the other alternative was not satisfied by the offer of the surrender. [MAULE, J.-There cannot be a stronger illustration of the principle, than the case of a covenant that a thing is in a given condition,—for instance, that a horse is sound.] Where a man covenants absolutely that he is seised in fee-simple, he is answerable in damages if his title turns out to be defective. [MAULE, J.-So, where one covenanted to enfeoff J. S., and J. S. refused to come and be enfeoffed, it was held that the covenantor was bound to make him.] In Lee v. Garret, 2 Show. 143, in debt on a bond conditioned to pay 500l. to the administrator of the obligee within two months after his death,-a plea that he was ready to pay it, but that no administrator was appointed, without saying uncore prist, was held bad. [MAULE, J.-Covenants containing conditions are not so much objects of compassion now as they were formerly.] In Comyns's Digest, Condition (D 1), it is said, (a) that, “if a man covenants or promises to do a certain thing at a certain time, and it becomes impossible by the act of God, he *shall not be excused." Again, title Action upon the Case upon Assump[*11 sit, (G), it is laid down, that, "if a man undertake to build a house before such a day, and afterwards a plague happens, and continues till the day, he shall be excused by this necessity for not doing it at the day, if he build it afterwards; for, he is not obliged to hazard his life: (6) but, if the thing promised become afterwards impossible by the act of God, that does not excuse him; for, he took upon. himself to do it.(c) And in a note to that passage is added the following," If performance of a contract becomes impracticable through the act of God, and there is no provision therein exonerating the contractor from performance, under such circumstances, he must answer for the breach of it in damages: Shubrick v. Salmond, 3 Burr. 1637. Thus, a freighter who covenants generally to load a cargo, and is prevented so doing by the prevalence of the plague, is liable on his covenant; Barker v. Hodgson, 3 M. & Selw. 267. There is no implied. exception of loss or destruction by act of God, in a continuing contract; such as, to repair a bridge during a certain time, unless the contract cannot afterwards be fulfilled: The Brecknock and Abergavenny Canal Navigation v. Pritchard, 6 Term Rep. 750." Suppose a man covenants to pay money on a given day, and before the day arrives he becomes lunatic, he still remains liable on his covenant. So, a lessee of a house who covenants generally to repair it, is bound to rebuild it, if it be burnt by an accidental fire: Bullock v. Dommitt, 6 Term Rep. 650.(d)

(c) Citing 1 Roll. Abr. 450, 1. 20, 25. (5 Vin. Abr. 228, pl. 8.)

(d) And see Weigell v. Waters, 6 T. R. 488, Waters v. Weigell, 2 Anstr. 575.

That is substantially Paradine v. Jane, Aleyn. 26, over again. There, in debt for arrears of rent due upon a lease, the defendant pleaded, that a certain German *prince, by name Prince Rupert, an alien *12] born, enemy to the King and kingdom, had invaded the realm with a hostile army of men, and, with the same force, did enter upon the defendant's possession, and him expelled, and held out of possession from the 19 July, 18 Car., till the feast of the Annunciation, 21 Car., whereby he could not take the profits: and it was resolved that the plea was insufficient; the Court saying: "He hath not averred that the army were all aliens, which shall not be intended; and then he hath his remedy against them. That the matter of the plea was insufficient; for, though the whole army had been alien enemies, yet he ought to pay his rent. And this difference was taken, that, where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him; as, in the case of waste,-if a house be destroyed by tempest, or by enemies, the lessee is excused: Dyer, 33 a; 1 Inst. 53 b, 283 a; 11 H. 4, 6.(a) So, of an escape; Co. 4, 84 b. So, in 9 E. 3, 16, (6) a supersedeas was awarded to the justices, that they should not proceed in a cessavit, upon a cesser during the war. But, when the party, by his own contract, creates a duty or charge upon himself, he is bound. to make it good, if he may, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract. And, therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it. Dyer, 33 a; 40 E. 3, 6."(c) In Atkinson v. Ritchie, 10 East, 530, the owner of a vessel was held liable for sailing without a full cargo, *13] pursuant to charter, *though the jury found that the master acted bona fide, under a reasonable and well-founded apprehension of a hostile embargo. Lord ELLENBOROUGH there said (p. 533): «No exception (of a private nature, at least) which is not contained in the contract itself, can be engrafted upon it, by implication, as an excuse for its non-performance. The rule laid down in the case of Paradine v. Jane has been often recognised in courts of law as a sound one, i. e. that, "when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract." And this has been recognised in several cases, as, in Bullock v. Dommitt, and The Company of Proprietors of the Brecknock and Abergavenny Canal Navigation v. Pritchard. (d) With respect to the copyhold, the argument on the other side will

(a) M. 12 H. 4, fo. 6, pl. 11: and see Earl of Arundel's case, M. 11 H. 4, fo. 32, pl. 59. (b) P. 9 E. 3, fo. 16, pl. 30. That was not the case of a supersedeas, but of a prohibition to sue, which the judge disregarded.

(c) H. 40 E. 3, fo. 6, pl. 11.

(d) And see Chitty on Contracts, 4th edit., by Russell, p. 930.

be, that the interest of the wife therein would have gone to her father, and therefore that no damages could have resulted from the breach of covenant. But the wife might have surrendered to the use of her husband, and such surrender would have been valid: Scamon v. Maw, 3 Bingh. 378 (E. C. L. R. vol. 32), 11 J. B. Moore, 243 (E. C. L. R. vol. 22): the statute 3 & 4 W. 4, c. 74, s. 77, expressly reserves that power to the wife.

Crompton, for the defendants.-The covenant in question was intended only to take effect in the event of the daughter surviving her father. [MAULE, J.-Even in the case of the daughter leaving issue?] Yes. [MAULE, J.-If the substantial meaning of the covenant is, that the contemplated provision shall be made by will, and it would be well performed by the father's bequeathing an equal share of his property to his daughter, and she died before him, no mischief is done.] [*14 Exactly so. The substantial meaning of the covenant is, that the daughter shall, at the death of her father, provided she be then living, have an equal share of his property with the other children who shall then be living. This could only be carried into effect by a testamentary instrument. It would be impossible to convey by deed an equal share of goods or estate which the father should be possessed of at the time of his death,—which is the time at which the covenant was to operate. It was clearly not the intention of the parties that any present interest should pass: nor was it intended to tie up the property. [MAULE, J.-Would the father's conveying to his daughter, in his lifetime, a valuable freehold estate, be a performance of the covenant?] Clearly not it would be a breach of the contract, as to the rest of the children. The covenantor could not, by any instrument made in his lifetime, perform this covenant: the subject-matter not being ascertainable till his death: Lunn v. Thornton, 1 M. Gr. & S. 379 (E. C. L. R. vol. 50). In Needham v. Kirkman, 3 B. & Ald. 531 (E. C. L. R. vol. 5), where A., being seised of certain real estates, conveyed part of them to the uses of the settlement at the time of his second marriage, and also covenanted with the trustees, that he would, by will or otherwise, give and devise all other his real estates, and also his personal estate, to and amongst the children, both of his first and second marriage, share and share alike,-it was held that this covenant was applicable only to such real and personal estate of which A. might die seised or possessed, and that it did not prevent him from disposing freely, during his life, of such part of his real estate as was not settled, or which he might acquire subsequently to the settlement. In Fortescue v. Hennah, 19 Ves. 67, a deed of this *sort [*15 was looked upon as a testamentary paper. It was there held, that a father under covenant for an equal division, at his death, of all the property he shall die seised or possessed of, between his two daughters, or their families, cannot defeat the covenant by a disposition VOL. IX.-3