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", by inden ture, 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 250l. paid, and of the further sum of 250l. to be paid, to the plaintiff, in the manner herein after 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 2504 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 ne cessary, 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

p Campbell v. Jones, B. R. H. 36 Geo, 3. 6 T. R. 570.

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" (59).

(59) 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*, 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 assurances, 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

* Reported, but imperfectly, in 2 BI. R. 1312, and 1 H. B. 273. n.

HH

For a further illustration of this branch of the subject, see Blackwell v. Nash, Str. 535.-Wyvill v. Stapleton, Str. 615.-Martindale v. Fisher, 1 Wils. 88. and ante, p. 109.

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 judg ment 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 nonperformance 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, B. R. H. 44 Geo. 3. 4 East's R. 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 Ld. 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. There 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 £5 per ton, for iron 55. 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

See also Boone v. Eyre, 2 Bl. R. 1312. and Terry v. Duntze, 2 H. Bl. 389.

It remains only to add a similar observation to that which was made at the close of the third section, tit. Assumpsit, ante, p. 109. 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, their precedence must depend on the order of time in which the intent of the transaction requires the performance. When it is once established, that the stipulation of one 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', liable, however, to be divested by the non-performance of a condition subsequent, that is matter of defence only, and must be shewn by the defendant.

q Per Lord Mansfield C. J. in King- r Hotham v. East India Company, ston v. Preston, Doug. 690. 1 T. R. 638.

ton, the freighter having his remedy in damages for such short delivery. In Havelock v. Geddes, B. R. 10 East, 555. the authority of Boone v. Eyre was recognised by Ld. 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 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 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.

VII. Of the Pleadings,

1. Accord and Satisfaction.

2. Eviction.

3. Infancy.

4. Levied by Distress.

5. Nil habuit in tenementis.

6. Non est factum.

7. Non infregit conventionem.

8. Performance.

9. Release.

10. Set-off.

1. Accord and Satisfaction.

ACCORD with satisfaction is a good plea in discharge of damages for covenant broken (60).

In covenant against an assignee for not repairing a house', the defendant pleaded accord between him and the plaintiff, and execution thereof, in satisfaction and discharge of the want of repairs; on demurrer, it was objected, that this action of covenant was founded upon the deed, which could not be discharged except by matter of as high a nature, and not by any accord or matter in pais; but it was resolved by the court, that the plea of the defendant was good; and this distinction was taken: where a duty accrues by the deed, and is ascertained at the time of making the writing, as by covenant, bill, or bond, to pay a sum of money; in that case, the duty, which is certain, takes its essence and operation originally and solely by the writing, and therefore it must be avoided by matter of as high a nature, although the

■ Blake's case, 6 Rep. 43. b. Cro. Jac. 99. S. C. by the name of Alden v. Blague.

(60) In Snow v. Franklin, Lutw. 358. to covenant for nonpayment 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.