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![handle is hein.slavery/ssactsengr0013 and id is 1 raw text is: 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 th-e
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 in bleaching linen, &c., and in consideration of the plaintiff's covenants
the defendant covenants that he will on or before the 25th of February or sooner,
in case the plaintiff should before that time have instructed the defendant, pay him
the further sum of 2501. To support the construction contended for by the defen-
dant this covenant must be understood as if it had been written thus, And the said
Griffiths, the defendant, doth hereby covenant that he will on or before the 25th of
February, in case the plaintiff shall before that time have instructed him, and sooner
in case the plaintiff shall before that time have instructed him, pay the further sum
of 2501. ; which is in effect covenanting to pay the money as soon as the plaintiff
should have instructed him. Now had this been the intention of the parties, the
natural and obvious way of expressing such intent would have been for the defendant
to covenant to pay as soon as he should be taught : but if the design of the parties
were that the plaintiff at all events should be paid on the 25th of February, and sooner
in case the defendant should be sooner instructed, the expression here used is a natural
expression, and the words in case the said Hector, the plaintiff, should before that
time have instructed the said Griffiths, the defendant, will be confined to the word
sooner. The intent of the parties appears to be that the payment might be accelerated,
but should not in any event be delayed.
But another ground on which the plaintiff is entitled to judgment is this, that the
teaching of the defendant is not the whole consideration of the covenant to pay. The
agreement of [573] the parties is that in consideration of one entire sum of 5001. the
plaintiff should teach and instruct the defendant in the art of bleaching materials
for making paper and permit him during the period of his patent to bleach such
materials according to his specification ; and though this sum is divided into two sums
of 2501. each, and is to be paid at different times, no part is denominated to be the
consideration of using the patent, nor any part as the consideration of teaching, but
one integral sum is adapted to the whole. Under this agreement the defendant has a
perfect title to use the patent, and the instruction of the defendant cannot be taken
to be the most material part of the consideration, as the specification must be supposed
to contain full instruction for that purpose, though some advantage might arise from
the assistance of the inventor. In the case of Boon v. Eyre, E. 17 Geo. 3, Lord Mansfield
said The distinction is clear, where mutual covenants go to the whole of the con-
sideration on both sides, they are mutual conditions : but where the covenants go only
to a part, and where a recompence may be had in damages, it is a different thing.
And Mr. J. Ashhurst added, There is a difference between executed and executory
covenants; here the covenants are executed in part, and the defendant ought not to
keep the estate because the plaintiff has not a title to a few negroes. So here the
covenant to teach is but part of the consideration of the 5001. ; for not doing which
the defendant may recover a recompense in damages. And the agreement of the
plaintiff having been executed in part by transferring to the defendant a right to
exercise his patent, he ought not to keep that right without paying the remainder
of the consideration, because he may have sustained some damage by the plaintiff's.
not having instructed him.
For these reasons we are all of opinion that judgment must be for the plaintiff.
THE KING against S. PERRY. Tuesday, Feb. 9th, 1796. It need not be stated in
express terms on a record of a judgment of outlawry that a writ of capias
issued against the defendant; it is sufficient if it appear that the sheriff was
commanded to take the defendant, &c. Neither is it necessary, in stating every
writ, to repeat the day and year when each was issued ; it will suffice if it appear
by referring to the preceding parts of the record ; as if, after stating that the
capias was returned on such a day, it proceed thus, Whereupon the exigent was
awarded ; whereupon referring to the day when the capias was returned.
The defendant was outlawed after verdict against him upon an information filed
by the King's Attorney General for a libel on the House of Commons. The record
710
6 T. R. 573.
THE KING V. PERRY](ViewImageLocal?handle=hein.slavery/ssactsengr0013&div=1&collection=&method=preview&ext=.png&size=3)