A WRIT of error having been brought upon the above judgment in the Exchequer Chamber, it was argued in the Vacation Sittings after Easter Term, 1851 (May 16) (a), by Manisty for the plaintiff in error, and by Hugh Hill for the defendants in error. The plaintiff's point for argument was, "that observance and performance of the covenants and agreements of the lessees were a condition precedent to their power to determine the lease." The arguments were in substance the same as in the Court below. The following additional cases were cited:-Bootle v. Blundell (b), Grover v. Burningham (c), Bengough v. Edridge (d), Kemble v. Farren (e), Horner v. Flintoff (ƒ), Heard v. Wadham (g), and West v. Blakeway (h). The Court said that they would call upon Manisty to reply, if they should think it necessary to hear any further argument for the plaintiff in error; but he was not called upon. Cur. adv. vult. The judgment of the Court was delivered (May 19, 1851) by PATTESON, J.-This case turns upon the construction which ought to be put upon the proviso for determining the lease; and that construction must undoubtedly be put which the Court, by examination of the lease, finds to be according to the meaning of the parties to the contract. The proviso is inserted solely for the benefit of the lessces, apparently to enable them to determine the lease and get rid of the fixed rent at the end of the first eight years, if (a) Before Patteson, J., Maule, J., Wightman, J., Erle, J., and Williams, J. (b) 19 Ves. 521. (e) 5 Exch. 184. (d) 1 Sim. 173. (g) 1 East, 619. 1850. FRIAR v. GREY. 1850. FRIAR v. GREY. they shall be desirous to do so; probably contemplating that the lessees might in that time either have exhausted the mines, or have found that it was not worth their while to continue to work them. The proviso does not give the lessor any power of determining the lease, nor does any other clause in the lease give him such power. The proviso runs in these terms: "Then and in such case, all arrears of rent being paid, and all and singular the covenants and agreements on the part of the lessees having been duly observed and performed, this lease and every clause and thing therein contained shall cease, determine, and be utterly void to all intents and purposes, in like manner as if the whole of the said term of forty years had then run out and expired. But nevertheless without prejudice to any claim or remedy which any of the parties hereto, or their respective representatives, may then be entitled to for breach of any of the covenants and agreements herein before contained." It seems to be clear that this proviso, but for the last clause of it, would make the due performance of all the covenants on the part of the lessees a condition precedent to their right to determine the lease. The words are (as regards the covenants) "having been duly observed and performed," and they are inserted in the middle of the proviso. Unless they were intended to qualify and limit the power, one cannot see what possible sense they can have. They can hardly have been intended to preserve the right of the lessor to recover for breaches of covenant, for that right is preserved by the last clause in much more ample and significant terms. Not that it was necessary to insert any words expressly reserving such right, for the right would exist in point of law without any such clause, though a contrary rule was formerly attempted to be established, which circumstance may in some way account for the insertion of the latter clause of this proviso, ex majore cautelâ. The case of Porter v. Shephard, decided first by the Court of Common Pleas, and afterwards by the Court of King's Bench on error, is directly in point, though the learned counsel for the defendants in error attempted to distinguish it by reason of the words "from and after" which are found in that case; but those words really make no difference in the sense of the proviso. The multiplicity and minuteness of the covenants on the part of the lessees was urged to shew the improbability of the parties meaning that any the slightest breach of them should deprive the lessees of the benefit of this proviso, and the inconvenience of such a construction in regard to similar leases was also urged. But these reasons do not justify the Court in refusing to put such construction on the words as they plainly require, and in effect rejecting them altogether, which we must do if we hold them not to be a condition precedent. Again, it is by no means clear that every minute breach of the covenants would deprive the lessees of the benefit of the proviso, for there are clauses respecting reference to arbitration which, if complied with, might well be held to be a due observance and performance of the covenants within the meaning of this proviso. But it is said that the latter clause is inconsistent with the construction of the former as a condition precedent, for that it manifestly contemplates that the lease might be determined, notwithstanding existing breaches of covenant on the part of the lessees, whereas, if it could only be determined in case all the covenants were duly observed and performed, no such breaches could exist, and yet the lease be determined. There are many answers to this argument. First. It might happen that the lessor was ignorant of the existence of breaches of covenant till after he had acted on the notice to determine the lease, and taken possession of the mines at the expiration of it; and the clause may have been inserted for greater caution, to enable him to recover for such breaches so subsequently discovered; and the 1850. FRIAR V. GREY. 1850. FRIAR บ. GREY. clause may apply to other remedies than by action, such as re-entry and distress. Secondly. The clause might apply where the lessor had waived the condition precedent by accepting the notice and taking possession, although he might be aware of some breaches of covenant. For we do not think the argument sound, that although a deed would be necessary to do away with the condition precedent, as such, before breach, therefore that after breach the lessor might not waive the condition without deed. Thirdly. The clause applies to both parties, lessees as well as lessor, so that it preserves the right of the lessees to sue the lessor for breaches of covenant, if any, though they have themselves, by their own act, determined the lease. All these views of the latter clause enable the Court to give effect to the words of that clause consistently with the construction of the former as a condition precedent, and so all the words are made to have some effect; whereas, by a different construction, as we have already observed, the words in the former part of the proviso would in effect be struck out. For these reasons, we are of opinion that the proviso must be construed as containing a condition precedent, and that the judgment of the Court below must be reversed. Judgment reversed. 1850. THIS MALCOLM v. SCOTT and Others. was an action brought in pursuance of an order of Lord Chancellor Cottenham (a). The declaration was in assumpsit for money had and received by the defendants for the plaintiff's use. The defendants pleaded non assumpserunt. the June 17. A mercantile firm at Cal cutta, by letter dated the 1841, request 16th January, ed the defendants, their correspondents in hold a sum of money, pay able on the 19th Novem ber following out of remittances and con At the trial, before Rolfe, B., at the Liverpool Spring London, to Assizes, 1849, it appeared that the action was brought to recover the sum of 10,6251. (equivalent to a lac of rupees), under the following circumstances:-The plaintiff was a merchant, carrying on business at Liverpool, under name of George Malcolm & Co. The defendants, Scott, Bell, & Co., were merchants in London, and the correspondents of Adam, Scott, & Co., merchants at Calcutta, who, at the time of the transaction in question, were considerably indebted to the plaintiff. The claim of the plaintiff in this action was founded on a correspondence, the material part of which is comprised in the following let ters. signments on their general account, at the disposal of the plaintiff, a merchant at Liverpool, and creditor of a the Calcutta firm. On the same day the Calcutta firm wrote to the plaintiff in On the 16th January, 1841, the Calcutta firm wrote to forming him the defendants as follows: "Calcutta, 16th January, 1841. "Dear Sirs-Ere this reaches we hope you will have realised a large portion of our consignments and remittan of the direc- March, 1841, the defendants wrote to the plaintiff "to advise" him of the request of the Calcutta firm, adding "at the present time we are considerably in cash advance for the firm, and the consignments and remittances hitherto advised will, we think, fall short of the engagements we are under on their account. We have, however, registered the above, and should remittances or consignments come forward to enable us to meet their wishes, we shall lose no time in advising you." On the 14th March, 1841, the defendants wrote to the Calcutta firm in answer to their letter, that the state of their account would not warrant the defendants in meeting the requisition for the present; but should they be in a position to meet it before November they would do so. By letter of the 18th January, 1842, the Calcutta firm revoked their order for the appropriation of the money :-Held, that the correspondence did not create an absolute contract on the part of the defendants to pay to the plaintiff the amount in question out of the remittances and consignments; and that, consequently, he could not sue them for money had and received for his use. (a) See Malcolm v. Scott, 3 Mac. & G. 29; S. C., 2 H. & T. 440. VOL. V. RR EXCH, |