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1804.

HALL

versus CAZENOVE.

for The delich purp Tulis

Yet the defendant did not, &c.;" and so assigned a breach in non-payment of the freight and demurrage.”

There were other counts in debt for freight, primage, and pierage, and for the use and hire of the ship, and for demurrage, together with the common money counts:

The defendant, in his plea, set out the charter-party upon oyer, which purported to be indented, made, concluded! and agreed upon [this] 6th day of February, 1801, ben tween the plaintif, defendant, and Batard, and was in every respect the same as set out in the declaration, concluding In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. He then demurred specially to the first count of the declaration, stating for causes ;" for that it is not alleged nor does it appear in or by the said first count of the said declaration, that the said ship in the said charter party mentioned, did proceed from Deptford aforesaid, on or before the 12th day of February, in the said charter-party mentioned, to the port of rendezvous in the said charter-party mentioned. And it is alleged in and by the said first count of the said declaration, that the said chatter-party was first indented, made, and concluded, after the 6th day of February, 1801; Whereas it appears, in and by the said charter-party, that the same was indented made, and concluded on the said 6th day of February, in the year aforesaid, and the said J. H. is by law estopped from making the said allegation.

To the other counts the defendant pleaded the general issue.

· Giles, for the defendant. « The plaintiff is estopped from making the averment contained in his declaration, that the charter-party was first indented,&c. after the Oth, and also after the 12th day of February, 1801, to wit, og the 15th of March. Now this is an allegation not merely relating to the time when the charter-party was indented but which avers, that it was indented, made, concluded &c. after the time on which, on the face of the instrumen itself, it appears to have been indented, &c. This aver

1804.

HALL

versus CAZENOVER

ment is, therefore, contradictory to the deed, and according to Goddard's case *, and Broke's Abridgment, title Obligation, an averment inconsistent with the deed, is not good.

"A deed cannot be stated to be delivered prior to the date which it bears on the face of it. Though it may be competent to a party to state that a deed is delivered subsequent to the date, yet, here it is not stated when it was sealed or delivered, which is the essential thing with respect to a deed. But if it be admitted, that it is sufficiently to be collected from the declaration, that the deed was delivered on the 15th of March, still it remains under the terms of the charter-party a condition precedent to the plaintiff's, recovering the freight and demurrage, that the ship shall sail on or before the 12th of February. All the words in the charter-party are prospective, yet this declaration makes them have a retrospective operation, But the deed not being made till the 15th of April, the terms of the charter-party became impossible to be performed and this condition precedent on the part of the plaintiff, being impossible, and consequently not having been per, formed according to the deed, the stipulations on the part of the defandant are void, and cannot be enforced. Coke Littleton, 206. a.

Lord ELLENBOROUGH, C. J. (stopping the Counsel on the other side.) The condition, on which much has been said, is not impossible, if it be a condition precedent, but as the case now stands, it is a violation of all language, and all rules of law to call it so. This is a sham plea, which has caused much consumption of time, The first objection is, that the plaintiff is estopped from his allegation, as to the time of the making of the charter, party. This charter-party is dated on the 6th of February, and therefore it is said that the averment that it was actually indented, made,concluded, &c. on the 15th April,

* 2 Coke's Rep. 4. b.

1804. HALL

vei sus CAZENOYE,

is contradictory to the deed. But the material word in i
this allegation is only the word concluded, for the charter-
party is concluded only when the deed is delivered; and
from Stone v. Ball, 3 Lev. 348, it is clear that a deed
may be ayerred to be delivered after it bears date. Then
the estoppel is no longer a difficulty. As to the second
objection, that the ship did not sail on the 12th of Febru-
ary; if that time had not elapsed when the deed was der
livered, it would have been a condition precedent; but
upon that question it is not necessary to decide now, for it
is obvious, that the time having passed, it was a condition
impossible at the time of making the charter-party. Now,
the parties contracting must be presumed to know, whe
ther the vessel had or had not sailed, and therefore the
time having gone by, it would be a monstrous absurdity
to consider that condition with respect to the time of the
sailing, which was then impossible, as being really any
part of the contract. The rest of the contract, however,
which relates to the destiny of the vessel, the voyage, the
loading, the payment of the freight, and all the subse<"
quent particulars, may take effect."

GROSE, J. Of the same opinion.

LAWRENCE, J. “I am of the same opinion. I doubt whether this be a condition precedent. The case of Constnble v. C.oberry, in Palmer, 397, is somewhat similar,

A. the master of a ship covenanted with B. a merebant, to go with his freight the first fair wind, and B. covenanted to pay so much for the freight. A. brought action of covenant, and alleged that he had performed the voyage. The defendant traversed that he did not go with the first fair wind. And upon demurrer it was held, that the traverse was not good; for it is only a circumstance, and nothing is traversable but what is material.' All that was considered necessary there was, that the ship should go to the place to which she was destined; so here all that seems material is that the ship should go to Demarara, and take the freight. On this point the case of Boone v.

1804.

HALL

versus CazssOVE,

Eyre * also seems material. In that case A. by deed
conveyed to B. the equity of redemption of a plantation
in the West Indies, together with the stock of negroes on
it, in consideration of 5001. and an annuity of 1601. for
life, and covenanted that he had a good title, and was lawa
fully possessed of the negroes, and that B. should quietly
enjoy. And B. covenanted that A. well and truly perform-
ing all things therein contained on his part he would pay
the annuity. In an action of covenant by A. the breach
assigned was the non-payment of the annuity: plea that
A. was not legally possessed of the negroes, and so had no
good title to convey; and that plea was held illon demur-
ter. For the Court held that it was an independent cove-
nant, which went only to part of the consideration; and
as the breach of such a covenant might be recompensed in
damages, an action may be maintained on it without
averring the performance of the whole ; for it would be
unreasonable that B. should keep the plantation, and
yet refuse payment. Therefore, also in the present case,
this may not be a condition precedent. The reason of
it, as well as the law, would lead us to support the
present contract; for if the voyage is performed, and
great profit is to be derived from its performance, it
would be hard indeed if the defendant were not to make
any compensation for the fulfilment of all the important
parts of the contract."

LE BLANC J. expressed himself shortly of the same opinion.

* H. Blackstone, note a. p. 273.

1894,

CHEETHAM versus WILLIAMSON, and Others.- Feb. 3.

CHEETHAY

versus WILLIAMSON and Others.

A mortgagor, and mortgagee of manors &c. in fec, convey the same and

all the estate, &c. by lease and release, to a purchaser: in the conveyance is contained a covenant from the purchaser, that the mortgagor, his heirs and assigns, may enter and dig for coal, and other mineral, and take the same to their own use : Held, that this is only a liberty, and the heirs of the mortgagor cannot bring trover against the tenants of the land for coal dug there, under a lease of the coals from the owner of the soil. Also, that it is not a reservation or exception by the mortgagor, out of his estate, for at the time of making the convey. ance, he had only the equity of redemption, and no legal estate out of which to make such reservation. THIS was an action of trover for coals, in which the jury

found, upon a special verdict, that one R. Nettleton was seised in fee, subject to an equity of redemption in one Edward Hyde, of certain lands and tenements in Haughton, in the parish of Manchester, in the county of Lancaster. By lease and release of 28th and 29th Marck, 6 W. & M. the premises were conveyed by Nettleton and Hyde to one Hobson, in fee, who covenanted and granted thereout a rent-charge to Hyde and his heirs, and further covenanted “ that it should be lawful for Hyde and his heirs at all times to enter into all or any part of the premises to search and dig for coal or stone, “ or any other mineral whatsoever, and the same to take, “ have, and carry away to their own use;" with a proviso, “ however for Hobson or his heirs to deduct part or the whole of the rent-charge, as should be reasonable to compensate for the damage done thereby to the premises. Hobson also covenanted to permit Hyde and his heirs to hunt on the land for game. Under this conveyance Hobson became seised in fee, and Hyde being seised of other lands in fee, conveyed to other persons, Hobson joining in the conveyance, with the same reservations, &c. On January 1, 1777, the estate thus conveyed to Hobson, and the other estates, became, and now are vested in one George Hyde Clarke, tenant for life, sans waste.

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