the covenant must be construed as a covenant to pay on a given day if the covenantors thought fit, but not so as to render them liable to an action until the expiration of one month from that day.

With regard to the fourth plea.-The contract being to pay a certain sum as the purchase m ney of an estate, part down and the residue by installments, the question is whether the installments are annual payments in respect of which income tax is payable; in other words, whether the installments are "an annuity or yearly interest of money or other annual payment" within the 102d section of the 5 & 6 Vict., c. 35, so as to be subject to assessment as income. In my opinion they are not. I think that the words do not include installments which are part of a capital sum. To hold that the installments are liable to income tax would be in effect to tax that which is capital and not income.

(IIis lordship read the 102d section of the 5 & 6 Vict., c. 35.) It is clear that the proviso in this section need not be co-extensive with the enacting clause. But it has no operation except with reference to cases within the enacting clause. I am of opinion that the words "all annuities, yearly interest of money, or other annual payments," do not include those payments which are in respect of the purchase money of an estate, and are in the nature of capital and not of income. We are not dealing with the question whether income tax might be payable in respect of such part of each installment as consists of interest, but whether it is payable on the installment itself. It was admitted by Mr. PHIPSON that, supposing the words "all annuities, yearly interest of money, or other annual payments," in the 102d section of the 5 & 6 Vict., c. 35, did not include those payments, the act of the 16 & 17 Vict., c. 34, would not assist him. However, but for the 40th section of that act, the plea would be open to the objection that it did not appear that the profits and gains out of which the annual payments were made had been brought into charge.

If that had been the only objection, the 16 & 17 Vict., c. 34, s. 40, would assist the defendants. But, for the reasons given by my brother Bramwell, I am of opinion that it is not So. The 40th section was not intended to introduce a new

clause to provide for annual payments not included in the old act.

Judgment for the defendants on the second plea, and for the plaintiff on the fourth plea.

ESHELMAN V. THOMPSON.

(62 Pennsylvania State, 495. Supreme Court, 1869.)

Contract to pay royalty-Affidavit of defense-Practice. Articles of agreement in which a party agreed to mine on the land of the other party and take out 8,000 tons per annum, and pay therefor 15 cents per ton, is not "an instrument of writing for the payment of money requiring an affidavit of defense, where the action is covenant for damages for non-performance; otherwise, if the suit had been for the agreed rate for any certain number of tons mined.

Error to the Court of Common Pleas of Indiana County.

This was an action of covenant brought by Hugh A. Thompson against B. L. Eshelman, Thomas Gorman and Charles Hammer. The writ was returned "summoned" as to Eshelman, and "nihil" as to the other defendants.

The plaintiff declared on an agreement made Oct. 1, 1864, between himself and the defendants, by which he granted to the defendants the right to mine and carry away, for ten years the fossil coal out of a tract of land in Burrell township, Indiana county; in consideration of which the defendants agreed to pay the plaintiff 15 cents per ton for all the coal mined, the weight to be ascertained in the manner specified in the agreement; the defendants to pay the plaintiff, on or before the 15th day of each month, "the rent for the coal mined" during the month next preceding; the defendants, at their own cost, to put up and maintain the necessary houses, fixtures, etc., to be taken at the end of the term by the plaintiff at a valuation, ascertained in a mode specified in the agreement; the defendants to work the mines with diligence, and mine and carry away during every year of the term 8,000 tons, "unless they shall show some sufficient and reasonable obstacle to prevent them so doing." The defend

ants further covenanted to mine, etc., in a workmanlike manner. The parties were to sustain the relation of landlord and tenant, and all laws for distraining, etc., for rent to extend to this lease. The breach set out was, that the defendants had not mined 8,000 tons of coal per year, nor paid 15 cents per ton therefor, nor shown any reasonable obstacle for not having so done, nor put up any buildings, etc., nor performed any of the other stipulations in the agreement. A copy of the agreement was filed with the declaration.

A judgment was taken against Eshelman for $2,095, for want of an affidavit of defense.

An Act of Assein bly relating to Indiana county provides, that "in all actions brought on bills, notes, bonds and other instruments of writing for the payment of money, etc., it shall be lawful for the plaintiff on or at any time after the third Saturday succeeding the return day, etc., to enter judgment by default, etc., unless the defendant shall previously file an affidavit of defense."

The defendant moved the court to take off the judgment, which was refused. He took a writ of error, and assigned for error the refusal to take off the judgment.

BANKS & WEIR, for plaintiff in error.

J. M. THOMPSON and STEWART & CLARK, for defendant in

error.

AGNEW, J.

The court below erred in entering judgment for want of an affidavit of defense in this case. The plaintiff filed his declaration at the same time with the copy of the lease, thus giving notice to the defendants, of the nature of his claim. By the written agreement the defendants contracted to pay a rent of 15 cents per ton for all coal dug, mined and carried away, the amount thereof to be ascertained by the weighmaster's certificate of the weight. Had the claim been for a sum of money founded on a certain amount of coal dug and carried away, it would be difficult to maintain that the action was not upon an instrument of writing for the payment of money. The authorities would then support the right of the plaintiff to recover judgment for want of the

required affidavit of defense. The case of Frank v. Maguire, 6 Wright, 82, goes to this extent, and no further. But in the present case it is not pretended that a single ton of coal was dug and mined; and the plaintiff counts in his narr. for none. Ilis breaches are assigned for a failure to perform any part of the agreement, and his declaration claims damages for the entire non-performance. Instead of averring that coal was dug, and how many tons, it alleges that the 8,000 tons were not dug and that no sufficient cause has been assigned by the defendants for not digging them; and, in short, the whole claim sounds in damages for non-performance of all the terms of the lease. The case, therefore, does not fall within the Act of Assembly requiring an affidavit of defense.

Johnston, Taylor & Co. v. Cowan, 9 P. F. Sinith, 275, decided at the last term in this district, differs from the present case, and affords it no countenance. There the lease of the privilege for taking clay was at a minimum specific money rent of $300, payable in semi-annual sums of $150, whether the clay was dug or not; and it was for this minimum sum the plaintiff brought his action. The evident intent of the contract there was, that Johnston, Taylor & Co. should pay the minimum sum unconditionally, with the provision for more, if more clay should be dug and taken away than would, at the stipulated rate, amount to that sum; and Cowan, the plaintiff, claimed the $300 only. That case is, therefore, no authority for this.

Judgment reversed, and the record remanded with a pro

cedendo.

Reversed.

THE EUREKA COAL Co. v. BRAIDWOOD.

(72 Illinois, 625. Supreme Court, 1874.)

1 Evidence of condition of shaft. In suit on contract for sinking a shaft, it appeared that the shaft was finished on the 20th of November. Evidence was offered by defendant to show the condition of the shaft in January following, the shaft meanwhile being full of water. Held, that the evidence was properly rejected.

1 No. 5 Mining Co. v. Bruce, 3 M. R. 147.

Formal acceptance not necessary. If a shaft be sunk according to contract, it is the duty of the party procuring the work to accept it; and the party sinking can not be prejudiced by the neglect of a formal acceptance thereof.

Reasonable time for examination. Where work is to be accepted or rejected, the examination should be made when the work is tendered or within a reasonable time thereafter.

Appeal from the Circuit Court of Will County; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action of covenant by James Braidwood, James Roe and James Reuncic, against the Eureka Coal Company. Messrs. BARBER & MUNN, for the appellant.

Messrs. HILL & DIBELL, for the appellees.

Mr. Justice SCOTT delivered the opinion of the court.

This action is in covenant, on an agreement under seal. Appellees undertook to sink a shaft, for the purpose of mining coal, at a point to be selected by the company. Among other things, appellant obligated itself to furnish certain machinery, and to do it at such times as would not hinder the progress of the work, using due diligence in that regard. The shaft was to be sunk below the strata of coal, and to be left in good condition for mining. A general performance of all the undertakings on the part of the appellees is averred. Several breaches are then assigned, the principal one being, that in sinking the shaft a steam pump became necessary, to remove the water as the work progressed, and the company failing to furnish it in apt time, appellees were unnecessarily delayed, and thereby sustained great damages. The cause was submitted to a jury, who found the issues for appellees, and assessed their damages at $3,990. To reverse the judgment entered on the verdict, the coal company prosecute this appeal. We see no reason for reversing the judgment for any cause of error suggested.

The evidence is flatly contradictory, and in all such cases, where the jury have been properly instructed, the verdict must stand unless it plainly appears it was the result of passion and prejudice.