declaration, that such thing was done. "Where there are mutual promises, yet if one thing be the consideration of the other, there a performance is necessary, unless a day is appointed for performance." Per Holt, C. J., Salk. 113. "If a day be appointed for the payment of the money, and the day is to happen before the thing can be performed, an action may be brought for the payment of the money, before the thing be done," ib. 171. Upon the authority of these cases, the judgment of the court must be in favour of the plaintiff, if, upon the true construction of the deed, a certain day be fixed for the payment of the money, and the thing to be done may not happen until after. The plaintiff in this case covenants with all possible expedition, not by any fixed time, to instruct the defendant; and in consideration of the plaintiff's covenants, the defendant covenants, that he will, on or before the 25th day of February, or sooner, in case the plaintiff should before that time have instructed the defendant, pay him the further sum of 2501. The intent of the parties appears to be that the payment might be accelerated, but should not in any event be delayed. Judgment for plaintiff. N. In a subsequent case, in 8 T. R. 370, Kenyon, C. J., speaking of the preceding case of Campbell v. Jones, said, "The instruction to be given was not to be, and could not, in the nature of the thing, be, performed at the same time with the payment of the money by the defendant, for which a certain time was limited, whereas no time was limited for giving the instruction ;" and Lawrence, J., in the same report, p. 374, observing on this case, said, "That the instruction might, consistently with the plaintiff's covenant, as well be given after as before the time specified for the payment of the money; and therefore it was not necessary to be averred in an action to recover the money." I cannot dismiss the consideration of this subject, without taking notice of a class of cases, in which this principle has been established; viz. that unless the non-performance alleged in breach of the contract goes to the whole root and consideration of it, the covenant broken is not to be considered as a condition precedent, but as a distinct covenant, for a breach of which the party injured may be compensated in damages. The first of this class is the case of Boone v. Eyre (m), which was stated by Lawrence, J., in Glazebrook v. Woodrow, 8 T. R. 373, as follows. The plaintiff had sold to the defendant an estate in Dominica, with the negroes, under the usual covenants for a good title, quiet enjoyment, and further assurance, in consideration of a sum in gross, and a certain annuity for lives, which the defendant covenanted to pay, "he, the plaintiff, well and truly performing all and singular the covenants, clauses, recitals, and agreements, in the said indenture of sale contained;" and in bar to an action of covenant for the arrears of the annuity, besides assigning breaches of specific and

(m) Reported, but imperfectly, in 2 Bl. R. 1312, and 1 H. Bl. 273, n. This case will be found among the paper books of

Ashhurst, J., A. P. B. No. 41, Dampier,
M. S. S. L.I. L.

partial covenants, the defendant, by his fourth plea, pleaded, "that the plaintiff, at the time of making the said indenture, had not in himself full power, true title, and good and lawful authority, to bargain, sell, and release the said plantation and negroes, &c. in manner and form as in the said indenture mentioned." The court said, it would be strange if such a defence were to be allowed, when if any one negro on the plantation were proved not to have been the property of the plaintiff, it would bar his action for the annuity. Lawrence, J., having thus stated the case, proceeded to observe, that the judgment of the court went on the ground that, in the form the breaches were assigned, the plea did not necessarily go to the whole of the consideration; but if the plea had been, that the plaintiff had not any title to the plantation, he did not know that it would not have been held sufficient. Le Blanc, J., observing upon the same case, said, "The substantial part of the agreement being the conveyance of the property in respect of which the annuity was to be paid, the court held it to be no answer to an action for the annuity, to say, that the plaintiff had not a good title in some of the negroes, which were upon the plantation: because all the material part of the covenant had been performed; and the plaintiff had a remedy upon the covenant for any special damage sustained for the non-performance of the rest;" 8 T. R. 375. The case of Boone v. Eyre was recognized by Lord Kenyon, in delivering the opinion of the court, in Campbell v. Jones, 6 T. R. 572, 573, and stated to be another ground for giving judgment for the plaintiff in that case. And, in the case of Hall v. Cazenove, 4 East, 483, 484, Lawrence, J., having stated Boone v. Eyre at length, applied the principle of the decision to the case then before the court. The doctrine laid down by Lord Mansfield, in Boone v. Eyre, 1 H. Bl. 273, n. and 6 T. R. 573, viz. "that where mutual covenants go to the whole of the consideration, on both sides, they are mutual conditions, the one precedent to the other; but where the covenants go only to a part, there a remedy lies on the covenant to recover damages for the breach of it, but it is not a condition precedent;" was relied on in Ritchie v. Atkinson, 10 East, 295, and by Tindal, C. J., in Stavers v. Curling, 3 Bingh. N. C. 368, and by Littledale, J., in Franklin v. Miller, 4 A. & E. 605. In Ritchie v. Atkinson, the master and the freighter of a vessel of 400 tons mutually agreed in writing, that the ship, being every way fitted for the voyage, should with all convenient speed proceed to Petersburgh, and there load, from the freighter's factors, a complete cargo of hemp and iron, and proceed therewith to London, and deliver the same on being paid freight for hemp 51. per ton, for iron 5s. a ton, &c.; one half to be paid on right delivery, the other at three months. It was holden, that the delivery of a complete cargo was not a condition precedent, but that the master might recover freight for a short cargo delivered in London at the stipulated rates per ton, the freighter having his remedy in damages for such short delivery. In Havelock v. Geddes,

10 East, 555, the authority of Boone v. Eyre was recognized by Lord Ellenborough, C. J., delivering the judgment of the court. And in Davidson v. Gwynne, 12 East, 389, where freight was cove nanted to be paid in consideration of several things, one of which was the sailing with the first convoy; it was holden, that as the object of the contract was the performance of the voyage, which in this case had been performed, the sailing with the first convoy was not to be considered as a condition precedent, but as a distinct covenant, for the breach of which the party injured might be compensated in damages. It was holden also, in the same case, that the covenant for the right and true delivery of the goods was satisfied by the delivery of the entire number of chests, and that the deteriorated state of their contents afforded no answer to this action for the recovery of the freight, the defendant having a cross action to recover damages for that. So where the plaintiff, as master of a South Sea whaler, covenanted with defendants, as owners, that he would proceed to the fishery and procure a cargo of sperm oil, &c., or as great a proportion as might be, under all circumstances, in his power to obtain; would return to London, and at his own cost deliver the cargo; would obey instructions; be frugal of provisions, and not dispose of any of them without accounting for the same; and would not smuggle or trade, or permit any on board to do so the defendants covenanted, on the performance of the beforementioned terms and conditions on the part of the plaintiff, to pay him a certain proportion of the net proceeds of the cargo; it was holden (n), that the plaintiff's covenants were independent, and that the performance of them was not a condition precedent to the plaintiff's right to recover on the covenants entered into by the defendant.

Assumpsit upon a charter (o) by the plaintiff to the defendant of a ship from London to Madeira and the Cape of Good Hope, and thence to Bombay and back; the plaintiff claiming 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

(n) Stavers v. Curling, 3 Bingh. N. C. (0) Freeman v. Taylor, 8 Bingh. 124. 355; 3 Sc. 740.

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 (p).

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 complete 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 (q). 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 (r).

Money paid in advance for freight cannot be recovered back. De Silvale v. Kendall, 4 M. & S. 37, recognized in Saunders v. Drew, 3 B. & Ad. 450.

For a further illustration of the subject of conditions, see Blackwell v. Nash, Str. 535; Wyvill v. Stapleton, Str. 615; Martindale v. Fisher, 1 Wils. 88, ante, p. 114. See also Boone v. Eyre, 2 Bl. R. 1312, and Terry v. Duntze, 2 H. Bl. 389. N. By R. G. H. T. 4 Will. IV., 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 ratâ 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. 115, 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 be (s), their precedence must depend on the order of time in which the intent of the transaction requires the performWhen it is once established, that the stipulation of one

ance.

Hyde v. Willis, 3 Campb. 202.
Hunter v. Fry, 2 B. & A. 421.
Ripley v. Scaife, 5 B. & C. 167.

(8) Per Lord Mansfield, C. J., in Kingston v. Preston, Doug. 690, 1.

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 (t), liable, however, to be divested by the non-performance of a condition subsequent, that is matter of defence only, and must be shown by the defendant.

VIII. Of the Pleadings :

1. Accord and Satisfaction, p. 510.
2. Eviction, p. 512.

3. Illegal Purpose, p. 513.

4. Infancy, p. 513.

5. Limitations, Stat. of, p. 514.

6. Nil habuit in tenementis, p. 514.

7. Non est factum, p. 517.

8. Non infregit conventionem, p. 521.

9. Payment of Money into Court, p. 522. 10. Performance, p. 522.

11. Release, p. 523.

12. Set-off, p. 523.

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 (u),

(t) Hotham v. East India Company, 1 T. R. 638.

(u) Blake's case, 6 Rep. 43, b; Cro.

Jac. 99, S. C. by the name of Alden v.
Blague.

(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.