IN THE

COURT OF COMMON PLEAS.

HILARY TERM, 18 VICTORIA.

Present-The HON. J. B. MACAULAY, C. J.

A., by agreement in writing, sealed, &c., in consideration of the rents, covenants, and agreements on the part of B. to be paid, done, and performed, did contract and agree with the said B. that he should and would, on or before the 1st day of October, upon request made to him in writing under the hand of the said B., grant and execute unto the said B. a good and effectual lease, to be prepared or approved by the counsel of B. of all, &c., to hold for five years, at, &c., the said lease and counterpart thereof to contain certain covenants, &c.: and said A. thereby agreed to deliver to the said B., on the 1st of October, staves, &c., at the above premises, at, &c., per thousand, for which said B. agreed to pay said A. therefor at, &c. : and it was thereby agreed that there should be inserted in said lease a covenant, on the part of the said A., that he would deliver to the said B., in each of the two succeeding years staves, &c., payable, &c. and it was further agreed that said B. should furnish C. and D. as securities for the due performance of the above agreement on or before the 20th day of July.

Held, that a request in writing under the hand of B. for such lease, or the granting of such lease by A., is not a condition precedent to the right of B. to have the staves, &c., delivered at the time and place mentioned in the agreement, the covenants to grant the lease and to deliver the staves being separate and independent; and that a declaration on the covenant to deliver the staves, &c., without averring a request for or a grant of the lease, is good on general demurrer. Held, also, that the declaration, containing an averment that the time for the giving of the security had elapsed before the making and delivery of said agreement, and that plaintiff was ready and willing, within a reasonable time after the making and delivery of said agreement, to furnish the said security, and from thence hath been, &c., is good on general demurrer. Held, also, that the second count is bad on general demurrer, the day laid not corresponding with the agreement as set out on oyer, and because readiness and willingness on the part of the plaintiff to furnish the securities mentioned in the agreement is not averred.

Writ issued 14th of January, 1854; declaration, 11th of April, 1854.

B

VOL. V.

COVENANT.-First count states that heretofore-to wit, on the 21st of July, 1852-defendant, by certain articles of agreement then made between defendant, of the one part, and the plaintiff of the other part, which said articles of agreement, sealed with the seal of the defendant, the plaintiff makes profert, did covenant and agree to and with the plaintiff, among other things, that he (the said defendant) would deliver to the plaintiff, at the premises of the defendant, two hundred thousand good merchantable machine staves, jointed, at twenty-five shillings per thousand, likewise fifty thousand pieces of heading at twenty-two shillings and six pence per thousand, on the first day of October then next, and fifty thousand hoops, at twenty-two shillings and six pence per thousand, net count, by the fifteenth of November then next; and said plaintiff did thereby agree to pay said defendant therefor the said prices at three, six, nine, and twelve months from the said 1st of October, and to furnish James Laing and Daniel Leonard as securities for the due performance of the said agreement on or before the 20th of July, 1852; then avers that the 20th of July, 1852, had elapsed before the making and delivery of the said articles of agreement, and plaintiff could not furnish said Laing and Leonard as securities for the due performance of said agreement; and, although plaintiff was ready and willing, within a reasonable time after the making and delivery of the said articles of agreement, and from thence until and after the said 15th of November, 1852, and from thence hitherto hath been ready and willing to furnish said Laing and Leonard as securities for the due performance of said agreement by plaintiff and although plaintiff was ready and willing to receive the said staves, &c., at the premises of defendant on the said 1st of October then next, and said hoops on the 15th of November then next, and to pay for the same at the prices aforesaid at three, six, nine, and twelve months, yet defendant did not, nor would deliver the said staves, &c., or any part thereof, to plaintiff, and did not, nor would deliver the said hoops, or any part thereof, at said premises, by said 15th of November then next; but, &c., contrary, &c.

Second count states, that whereas also defendant heretofore

Pleas.-First-Non est factum.

Second, to first count-That defendant never was requested in writing under the hand of plaintiff to make or deliver any lease of the premises in said articles mentioned, nor was any such lease ever tendered for execution to defendant, or made or executed by defendant, as mentioned in and provided for by said articles; concluding with a verification.

Third, to first count-That plaintiff did not at any time after the making or delivering of said articles of agreement to the commencement of suit furnish said Laing and Leonard as securities for the due performance of the said agreement by the plaintiff, as provided for by said agreement; concluding to the country.

Fourth, to first count-That no lease or demise of the said premises in said articles of agreement mentioned was ever tendered or offered to the defendant by or on behalf of plaintiff for execution, nor was any such lease ever made or executed by the defendant, nor were the said premises therein mentioned ever demised to or vested in the defendant in manner or for the purposes therein mentioned, nor did plaintiff at any time before the time appointed for the delivering of the said staves, &c., or any of them, furnish said Laing and Leonard as securities for the due performance of the said agreement by plaintiff: wherefore defendant saith that he did not deliver the said staves, &c., or any of them, at the said premises as in said first count mentioned; concluding with a verification.

Fifth, to second count-That defendant never was requested in writing under the hand of plaintiff to make or deliver any lease of the premises in said articles of agreement mentioned, nor was any such lease ever tendered to defendant for execution, or made or executed by defendant, as mentioned in and provided for by said articles of agreement; concluding with a verification.

Sixth, to second count-That plaintiff did not at any time. after the making or delivery of the said articles of agreement to the commencement of this suit furnish the said Laing and Leonard as securities for the due performance of the said agreement by plaintiff, as provided for by said agreement; concluding to the country.

Seventh, to second count-That no lease or demise of the said premises in said articles of agreement mentioned was ever tendered or offered to the defendant by or on behalf of the plaintiff for execution, nor was any such lease ever made or executed by the defendant, nor were the said premises therein mentioned ever demised to or vested in the defendant in manner and for the purposes therein mentioned, nor did plaintiff at any time before the time appointed for the delivery of the said staves, &c., furnish the said Laing and Leonard as securities for the due performance of the said agreement by the plaintiff; wherefore defendant saith that he did not deliver the said staves, &c., at said premises, as in said second count mentioned; concluding with a verification.

Replication.-Similiter to first plea.

To second plea to first count-Demurrer, on the grounds that the plea is no answer to the cause of action in said first count mentioned; that it attempts to raise an immaterial issue, and to make the request of plaintiff to defendant to deliver the lease therein mentioned a condition precedent to the performance by defendant of the covenant in said first count mentioned.

To third plea to first count-On the grounds that said plea alleges that plaintiff did not furnish Laing and Leonard as securities, &c., and attempts to raise an issue thereon,the plaintiff having averred in said first count that the time by which the securities were to be furnished had elapsed before the making and delivery of the said agreement, and that plaintiff was ready and willing at all times afterwards to furnish such securities, and so defendant traverses a matter not alleged; that the plea concludes to the country instead of with a verification, and attempts to raise an immaterial and too large an issue.

To fourth plea to first count-On the grounds of multiplicity in alleging that no lease or demise of the premises was ever tendered to defendant for execution on behalf of plaintiff, and also that said premises were never demised to or vested in plaintiff, and also that plaintiff did not furnish security for the performance of said agreement; that said plea is no answer to the said first count, the matters therein alleged not