then averred, that although plaintiff always, from the time of sale, for one month following and afterwards, was ready and willing to receive the corn at S., yet the defendant had not delivered the same after verdict for the plaintiff, upon the general issue, judgment was arrested; because it was not averred that the plaintiff had tendered to the defendant the price of the corn, or that he was ready to have paid for it on delivery; Lawrence, J., observing, that "he considered this an agreement by the defendant to deliver the corn at S. on being paid for it; that the payment of the money was to be an act concurrent with the delivery, and said the case was like that of Callonel v. Briggs, Salk. 112, 113; where, on an agreement to pay so much money six months after the bargain, the plaintiff transferring stock, Holt, C. J., said, "If either party would sue upon this agreement, the plaintiff for not paying, or the defendant for not transferring, the one must aver and prove a transfer or a tender; he did not say, that the not doing it should come from the defendant by way of excuse, but that the doing it must be alleged in the declaration. The tendering of the money by the plaintiff made part of the plaintiff's title to recover, and he must set forth the whole of his title."

But, after verdict (57), an averment, that the plaintiff was ready and willing to perform his part of the contract, has been holden sufficient. As where assumpsit was brought for the non-delivery of a quantity of malt (p), which the plaintiff had bought of the defendant at a certain price, and which defendant undertook to deliver on request; and the plaintiff averred, that although on, &c. at, &c. he requested the defendant to deliver the malt, and was then and there ready and willing to pay the defendant for the same, according to the terms of the sale, and although he was then and there ready and willing, and offered to accept and receive the malt from the defendant, yet he did not deliver the same; after verdict for the plaintiff, it was moved, in arrest of judgment, that the declaration was defective, because it only averred a readiness and willingness in the plaintiff to pay for the malt, and did not aver an actual tender of the price agreed upon; but the court overruled the objection, and held the averment sufficient. So where the declaration stated (q), that the plaintiff had bought of the defendant a quantity of oats at a certain price per quarter, which defendant had undertaken to deliver some time between Michaelmas and Lady(p) Rawson v. Johnson, 1 East's R. 203.

(q) Waterhouse v. Skinner, 2 Bos. & Pul. 447.

(57) This proposition is qualified by confining it to cases after verdict, because it has not as yet been determined, that an averment of this kind would be good upon demurrer. It must, however, be admitted, that some of the judges (especially Lawrence, J.), in Rawson v. Johnson, seem to have been of opinion, that such an averment would have been sufficient even on demurrer.

day; and although the defendant did, in part performance of his promise, deliver to the plaintiff a part of the oats, and although the time for the delivery of the residue was long since elapsed, and the plaintiff was during all that time, and still is, ready to receive the residue of the oats, and pay for the same, at the price agreed upon, yet the defendant had not delivered the same. After verdict for the plaintiff, an objection was made in arrest of judgment, because it was not averred in the declaration, that plaintiff had performed his part of the contract by tendering the price of the corn. But the objection was overruled by the court, and on the authority of the preceding case of Rawson v. Johnson, they held the averment sufficient.

In an action (r) for not delivering a quantity of oil, the declaration contained an averment that the plaintiff was always ready and willing to accept it, and pay for the same on the terms agreed upon; yet the defendant would not deliver it, whereby, &c. The plaintiff proved the contract, and a demand, on his part, of the oil in question; but it was objected, on the part of the defendant, that the plaintiff should have proved that he was ready and willing to pay for the oil: Gibbs, C. J., was of opinion, and the court afterwards concurred with him, that the delivery of the oil and payment for it were to be concurrent acts; and that it was not necessary for the plaintiff to prove that he had offered the money to the defendant, till the defendant was ready to perform his part of the contract, by delivering the oil. By the demand which he made on the defendant, he proved himself to be ready and willing to pay for the oil when delivered.

The defendant became the purchaser of a leasehold estate, sold by public auction. By the conditions of sale it was stipulated that the purchaser should immediately pay down a deposit in part of the purchase money, and sign an agreement for payment of the remainder within twenty-eight days from the day of sale, when possession should be given of the part in hand, and that the purchaser should have proper conveyances and assignments of the leases, without requiring the lessor's title, on payment of remainder of the purchase money. In an action of assumpsit, brought by the seller, for non-performance of the conditions on the part of the purchaser, the declaration stated in the first count, that the plaintiffs gave the defendant possession according to the conditions, and were also ready and willing to give him proper conveyances and assignments of the leases of the estate, on payment of the remainder of the purchase money; and the second count stated, that the plaintiffs contracted with the defendant to sell, and the defendant to purchase an estate, and that on the plaintiffs having promised the defendant to convey, he promised to accept the conveyance, and

(r) Wilks v. Atkinson, 1 Marsh. 412, recognized in Levy v. Ld. Herbert, 7 Taunt. 318.

VOL. I.

I

pay the remainder of the purchase money in a reasonable time: that although the plaintiffs were ready and willing, and offered to convey and assign to the defendant, and although a reasonable time had elapsed for accepting the conveyance, yet the defendant would not accept it, or pay the remainder of the purchase money. On a motion in arrest of judgment, on the ground that the plaintiffs had not set out their title, or tendered the conveyances to the defendant, it was holden (s), that the plaintiffs were not bound to set out their title, and that the allegation of their being ready and willing to convey, was equivalent to a performance of the conditions on their parts; but that, at all events, such objections could not be supported after verdict.

Where it is agreed that some act shall be performed by each of two parties at the same time (t), he who was ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part of the agreement.

Mutual Promises.-3rdly. Where there are mutual promises, and the mere promise, and not the performance thereof, is the consideration of the agreement (58), there an action may be maintained by either party (u), without averring performance of the agreement on his part: As where the declaration stated, that it was agreed that a race should be run between a horse of the plaintiff and one of J. S. (2), and in consideration that the plaintiff had agreed to deliver to the defendant a quantity of cloth, the defendant agreed to pay the plaintiff a sum of money in case J. S.'s horse should beat the plaintiff's horse, and then averred, that J. S.'s horse won the race. After verdict for the plaintiff, an exception was taken in arrest of judgment, because it was not averred in the declaration, that the cloth was delivered to the defendant; but the court overruled the exception, observing, that this was an action founded on mutual promises, and, therefore, it was not necessary for the plaintiff to make an averment of the delivery of the cloth; and Denison, J., took this distinction,-" Where a plaintiff declares, that in consideration he would deliver to the defendant a piece of cloth, he, the defendant, should pay a sum of money for it, an averment of the delivery of the cloth is necessary; but if the plaintiff states an

(s) Ferry v. Williams, 1 Moore, (C. P.) 498; 8 Taunt. 62, S. C.

(t) Jones v. Barkley, Doug. 684.

(u) Hob. 106.

(x) Martindale v. Fisher, 1 Wils. 88.

(58) "Whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement." Per Lawrence, J., in Glazebrook v. Woodrow, 8 T. R. 373.

agreement, and then states that in consideration of such agreement, &c., in that case an averment is not necessary."

Having thus illustrated the nature of conditions precedent, concurrent acts, and mutual promises, it remains only to add, that there are not any technical words by which any of these considerations are constituted. The principal difficulty in the construction of agreements consists in discovering, whether the consideration be a condition precedent, a concurrent act, or a mutual promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties (y) is, or is assumed to be, the governing principle of all the determinations. When the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. If the reader wishes to pursue this subject further, he will find the cases relating to it fully collected and commented upon, in Mr. Serjeant Williams's edition of Saunders, vol. i. p. 320, n. 4; vol. ii. p. 352, n. 3. See also Mr. Durnford's note in Willes's Rep. p. 157, and post, tit. "Covenant."

IV. Of the Pleadings.

1. In Abatement, p. 115.

2. Of the General Issue, and the New Rules relative to Pleadings in Assumpsit, p. 116.

3. Accord and Satisfaction, p. 118.

4. Infancy, p. 122.

5. Payment, p. 129; and hereino f Payment of Money into Court, p. 133,

6. Release, p. 134.

7. Statutes, p. 135.

1. Of Limitation, p.135.

2. Of Set-off, p. 146.

8. Tender, p. 150.

1. In Abatement.

1. In Abatement.-By stat. 3 and 4 Will. IV. c. 42, s. 8, no plea in abatement for the nonjoinder of any person as a co-defendant shall be allowed in any court of common law, unless it shall be stated in such plea, that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea.

A plea in abatement (z) of the coverture of the defendant is not a plea of nonjoinder within the meaning of the foregoing section.

(y) Per Grose, J., in Glazebrook v. Woodrow, 8 T. R. 372; per Sir J. Mansfield, in Smith v. Woodhouse, 2 Bos. &

Pul. N. R. 240.

(z) Jones v. Smith, 3 Mees. & W. 526.

The following sections, viz. 9, 10, and 11, of the foregoing statute, lay further restrictions on pleas in abatement; but subject to these, parties are still entitled to the benefit of such pleas. And where parties have pleaded in abatement for nonjoinder of a defendant, the court of B. R. will not set aside the plea, or allow the writ to be amended, on the ground that the plaintiff is barred by the statute of limitations from bringing a fresh action (a).

2. Of the General Issue, and the New Rules relative to Pleadings in Assumpsit.

2. General Issue.-The general issue in this action is non assumpsit. If by mistake not guilty be pleaded, instead of non assumpsit, such plea will be bad on demurrer (b), but aided after verdict (c). Formerly, many grounds of defence might have been given in evidence under the general issue non assumpsit, and did not require to be pleaded specially; such as coverture at the time of making the contract, infancy, and many more, for which the reader is referred to former editions of this work. But now by R.G.H.T. 4 Will. IV. Pleadings I. In all actions of assumpsit, except on bills of exchange, and promissory notes, the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law. Ex. gr. In an action on a warranty, the plea will operate as a denial of the fact of the warranty having been given upon the alleged consideration, but not of the breach; and, in an action on a policy of insurance, of the subscription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance with warranties. In actions against carriers and other bailees, for not delivering or not keeping goods, or not returning them on request, and in actions against agents for not accounting, the plea will operate as a denial of any express contract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged, but not of the breach. In an action of indebitatus assumpsit for goods sold and delivered, the plea of non assumpsit will operate as a denial of the sale and delivery in point of fact; in the like action for money had and received, it will operate as a denial both of the receipt of the money, and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. 2. In all actions upon bills of exchange and promissory notes, the plea of non assumpsit shall be inadmissible (59).

(a) Roberts v. Bate, 6 A. & E. 778. (b) Marsham v. Gibbs, 2 Str. 1022, and Ca. Temp. Hard. 173. Adjudged on spe

cial demurrer.

(c) Elrington v. Doshant, 1 Lev. 142; Corbyn v. Brown, Cro. Eliz. 470.

(59) This rule is confined to cases where the action is only on the note, and on the promise to pay, contained in or implied by law from it: it is