HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0159 and id is 1 raw text is: THE DUKE OF ST. ALBANS V. SHORE
Replication,-Issue on the first plea, and general demurrer to the second. Joinder
in demurrer.
This was argued in Hilary term last, by Lawrence, Serjt., for the plaintiff, and
Bond, Serjt., for the defendant, and a second time in Easter term, by Le Blanc, Serjt.,
for the plaintiff, and Marshall, Serjt., for the defendant.
The arguments in support of the demurrer were in substance as follow:
The articles of agreement in this case divide themselves into two branches. First,
That the defendant was to purchase of the plaintiff a farm, &c. for 25941. in part of
payment for which the plaintiff was to accept a conveyance of other premises. Secondly,
That the trees growing upon any of the estates should be valued and paid for by the
respective purchasers. The object of the plea is, to shew that the plaintiff having cut
down trees on his estate, was incapable of performing his part of the agreement, and
therefore that the defendant was not bound to perform the other part. In order to
support the plea, it must be proved that the matter contained in it was a precedent
condition, for if it were not such a condition, the non-performance of it cannot be
pleaded in bar. Where one part of an agreement is not the consideration of the other,
non-performance of one part cannot be pleaded as an excuse for the non-performance
of the other. In this case the agreement respecting the trees was no part of the
consideration of the act which the defendant was to perform, namely, to convey
his estate, and [273] pay the residue of the purchase-money. Where there are mutual
remedies, it would be unjust that the breach of one covenant should be alleged as a
reason for the breach of another, because the damages arising from the one might be
unequal to those occasioned by the other. The case of Boone v. Eyre (a), was similar
to the present: there the covenant was for well and truly performing, &c. the breach
was non-payment, and the plea in bar, that the plaintiff was not legally possessed of
the negroes on the plantation. There Lord Mansfield said, if the plea were allowed,
any one negro not being the property of the plaintiff would bar the action : so here,
if this plea were allowed, any one tree being cut down would be a bar to the plaintiff's
demand. In Hunlocke v. Blacklowe, 2 Saund. 155, the terms of the agreement were as
strong as the present, but there a similar plea was not allowed. To the same effect
also is Cole v. Shallet, 3 Lev. 41. Though these were actions of covenant, yet the
statute of 8 & 9 W. 3, c. 11, has put actions of covenant and debt for a penalty on
(a) Boone v. .Eyre, B. R. East. 17 Geo. 3.*
[See S. C. 2 W. Bl. 1312; 96 E. R. 767 (with note), to which add General Billposting
Company v. Atkinson, [1909] A. C. 121.]
Covenant on a deed, whereby the plaintiff conveyed to the defendant the equity
of redemption of a plantation in the West Indies, together with the stock of negroes
upon it, in consideration of 5001. and an annuity of 1601. per annum for his life; and
covenanted that he had a good title to the plantation, was lawfully possessed of the
negroes, and that the defendant should quietly enjoy. The defendant covenanted,
that the plaintiff well and truly performing all and every thing therein contained on
his part to be performed, he the defendant would pay the annuity. The breach
assigned was the non-payment of the annuity. Plea, that the plaintiff was not, at the
time of making the deed, legally possessed of the negroes on the plantation, and so
had not a good title to convey.
To which there was a general demurrer.
LORD MANSFIELD.-The distinction is very clear, 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 they go only to a part, where a breach may be
paid for in damages, there the defendant has a remedy on his covenant, and shall not
plead it as a condition precedent. If this plea were to be allowed, any one negro not
being the property of the plaintiff would bar the action.
Judgment for the plaintiff.t
* [2 W. Black. 1312, S. C.]
t [Accord. Campbell v. Jones, 6 T. R. 570. Ritchie v. Atkinson, 10 East, 295.
Harelock v. Geddes, 10 East, 555. Davidson v. Gwynn, 12 East, 389. Storer v. Gordon,
3 M. & S. 308. Fothergill v. Walton, 8 Taunt. 576. 2 B. Moore, 630, S. C.
Saund. 320 c. notes. 5th edit.]
I HI. BL, 2.73.](ViewImageLocal?handle=hein.slavery/ssactsengr0159&div=1&collection=&method=preview&ext=.png&size=3)