From the preceding cases it may be collected, that wherever there is a condition precedent on the part of the plaintiff, performance, or that which is equivalent to performance (43), must be alleged and proved, otherwise the action cannot be supported; and, consequently, the defendant may plead non-performance of the condition precedent, in bar of the plaintiff's action; or, if the averment of performance be entirely omitted, or imperfectly made (44), the defendant may take advantage of it on demurrer. If made, but imperfectly, defendant must demur specially (1). " The reader who is desirous of pursuing this branch of the subject further, is referred to the analogous cases under tit. "Assumpsit, ante, p. 112. To the cases there abridged, the following may be added: Hesketh v. Gray, Say. 185; Collins v. Gibbs, 2 Burr. 899; Campbell v. French, 6 T. R. 200. See also Smith v. Wilson, 8 East, 437; Storer v. Gordon, 3 M. & S. 308. Having thus endeavoured to illustrate the nature of conditions precedent, I shall proceed to the next object of consideration, viz. concurrent acts or covenants: Concurrent Acts.—Where reciprocal acts or covenants are to be performed by each party at the same time, they are technically termed concurrent acts or covenants; and in this case, as well as in the case of dependent covenants, one party cannot maintain an action against the other, without averring performance, or that which is equivalent to performance, of the acts or covenants to be performed on the plaintiff's part. As where, in covenant, the declaration stated (m) that by articles of agreement under seal, the plaintiff covenanted to convey to the defendant, on or before the 1st of August, 1797, a school-house and ground; and on or before the 24th of June, 1796, to surrender up the premises, and deliver over the scholars to the defendant; and, in consideration thereof, the defendant covenanted to pay the plaintiff a sum of money, on or before the 1st of August, 1797, with interest from the 1st of Janu() Varley v. Manton, 9 Bingh. 365. (m) Glazebrook v. Woodrow, 8 T. R. 368, cited in 2 Bos. & Pul. N. R. 236, and in Rose v. Poulton, 2 B. & Ad. 832. (43) "Where a person, by doing a previous act, would acquire a right to a debt, or duty, by a tender to do the previous act, if the other party refuse to permit him to do it, he acquires the right as completely as if it had actually been done." Arg. Jones v. Barkley, Doug. 685, cited by Lord Ellenborough, C. J., delivering judgment in Smith v. Wilson, 8 East, 443. So if the plaintiff has been discharged by the defendant from the performance of the condition, the action may be maintained. See Jones v. Barkley, Doug. 684, recognized in Laird v. Pim, 7 M. & W. 474. where the plaintiff has been prevented from the performance by the neglect and default of the defendant. 1 T. R. 645. So (44) As to what will be a sufficient averment in this respect, see Jones v. Barkley, Doug. 684. ary next preceding the said 1st of August; the plaintiff then averred, that he surrendered up the premises to defendant on the 24th of June, 1796, and delivered over the scholars; and although the plaintiff had well and truly performed every thing contained in the articles on his part, yet defendant had not paid the money and interest. The defendant pleaded, that he was ready to accept a conveyance of the premises, and at the same time to pay the money to the plaintiff, if he would have made such a conveyance, but the plaintiff did not, on or before the 1st of August, or at any time since, convey the premises to defendant. Ön demurrer, it was holden, that as the substance of the consideration to entitle the plaintiff to receive the money, was the making the conveyance, payment of the money could not be enforced, until the conveyance was made, or at least offered to be made by the plaintiff: Lawrence, J., observing, that nothing could be inferred in favour of the plaintiff in this case from part execution of the contract; because, though the defendant was to be put in possession in June 1796, and the money was to be paid in August, 1797, yet as that also was the time fixed for the execution of the conveyance, it was plain, that the defendant did not intend to part with his money until his title was secure. So where A. covenanted that he would, on or before a certain day (n), convey land to B., by such conveyance as B.'s counsel should advise; in consideration of which B. covenanted to pay A., at or upon the execution of the conveyance, a certain sum of money; it was holden, that A. could not maintain covenant against B. for non-payment of the money without showing that he had conveyed; or that he was ready at the day to have conveyed, what he had covenanted to do, and that he had done every thing which lay upon him to do for that purpose, but that he was prevented from so doing by some act, or omission, or neglect, on the part of the defendant. Secus, where the vendee by a distinct instrument, e. g. a promissory note, agrees to pay the money on a particular day (0). Mutual and Independent Covenants. Where covenants are mutual and independent, one party may maintain an action against the other for the breach of his covenants, without averring a performance of the covenants on his, the plaintiff's part; and the defendant cannot plead non-performance of such covenants on the part of the plaintiff in bar of the plaintiff's action (p). In covenant on articles of agreement (q), whereby the plaintiff, who was master of a vessel, covenanted to make use of the same in the coal trade, for the defendant's service; and, among other things, covenanted that during twelve calendar months (the time the vessel was hired for) he would pay all seamen's wages yearly; in consideration whereof, the defendant covenanted to pay the plaintiff 421. (n) Heard v. Wadham, 1 East, 619. (q) Russen v. Coleby, T. 7 Geo. II. B. R., 7 Mod. 236, Leach's edit. every month during the year; the non-payment whereof was the breach assigned. To this the defendant pleaded, that the plaintiff did not pay the seamen according to his covenant; on demurrer to this plea, it was insisted by the plaintiff, that these were mutual covenants, and that though the words were "in consideration thereof," yet, in the nature of the thing, this could not be a condition precedent; for the payment of the seamen, by the plaintiff, was to be yearly; of the plaintiff, by the defendant, monthly; so that from the manner of covenanting it was impossible the performance of the act to be done by the plaintiff should be necessary to entitle him to an action against the defendant for not doing the act he had covenanted to do; and the case of Thorp v. Thorp was cited, where this distinction is taken by Holt, C. J., in the resolution of that case: Judgment for the plaintiff; Lord Hardwicke, C. J., observing, that there could not be any condition precedent here, for the reason given; and the resolution in Thorp v. Thorp was certainly good law; for these cases did not depend so much on the manner of penning the covenants, as the nature of them. It was agreed between plaintiff and defendant (r), by indenture, that in consideration of 500l. plaintiff should instruct defendant in bleaching materials for making paper, and permit defendant, during the continuance of a patent, which plaintiff had obtained for that purpose, to bleach such materials according to the specification. In pursuance of this agreement, the plaintiff, in consideration of 2501. paid, and of the further sum of 250l. to be paid to the plaintiff, in the manner hereinafter mentioned, covenanted that he would, with all possible expedition, instruct the defendant in the manner of bleaching the materials. The defendant, in consideration of the plaintiff's covenants, covenanted that he would, on or before the 25th of February, 1794, or sooner, in case plaintiff should before that time have sufficiently taught defendant in bleaching the materials, pay the plaintiff the further sum of 250l. In covenant on the preceding agreement, the breach assigned was, the non-payment of the 2501. Special demurrer, that it was not averred that plaintiff had instructed defendant in the manner of bleaching the materials. Lord Kenyon, C. J., delivering the opinion of the court, said, that whether these kinds of covenants be or be not independent of each other, must certainly depend on the good sense of the case. If one thing is to be done by a plaintiff before his right of action accrues on defendant's covenant, it should be averred, in the 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 (r) Campbell v. Jones, 6 T. R. 570, recognized in Carpenter v. Creswell, 4 VOL. I. Bingh. 409; 1 Mo. & P. 66. 2 M 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 250l. 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 (s), 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 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 (s) 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, 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; 3 Scott, 740; and by Littledale, J., in Franklin v. Miller, 4 A. & E. 605; and again by Tindal, C. J., in The Fishmongers' Company v. Robertson, 5 M. & Gr. 197; 6 Scott's N. R. 56. 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 covenanted to be paid in consideration of several |