day laid in that count as the day on which it was made, without anything to explain the variance. There is nothing stated in that count to shew that the agreement therein declared on was not in fact executed on the day it bears date, or that it was executed after the day appointed for furnishing the securities. And the date on oyer does not correspond with the day stated in the declaration. Its being laid under a videlicet does not obviate the objection; for the day laid imports the day of the date, and when exhibited on oyer the real date does not correspond; and if identity was nevertheless to be presumed, the presumption must be that the agreement was sealed and delivered on the 12th of July; and that day was prior to the time appointed for the plaintiff's giving security for the performance of the agreement on his part. Such day preceding the periods appointed for delivering the staves, &c., the furnishing the securities formed a condition. precedent, and performance thereof ought to have been. averred or excused. If not a condition precedent, it certainly was one concurrent; and the furnishing securities on the one hand, and the delivery of the staves on the other, being dependent, readiness and willingness on the plaintiff's part ought to have been averred; and not being alleged, I think this count must be bad on general demurrer.

It appears to me the pleas demurred to are all bad. The second plea treats a request in writing under the hand of the plaintiff, calling on the defendant to grant and execute a lease, or the tender of a lease, for execution, or the making thereof by the defendant, as a condition precedent to or concurrent with the defendant's obligation to deliver, or the plaintiff's right to demand the staves, &c., mentioned in the declaration on the 1st of October and 15th of November respectively; whereas I do not think such the correct construction of the agreement.

A lease might have been demanded before either of those days; and if no lease was executed by the defendant, as alleged in the last allegation of the plea, it was his own fault. Though not incumbent upon him to have done so without being requested in writing, he might have prepared and tendered one for approval, and if approved, have executed it.

He does not state that the plaintiff refused to name his counsel to approve, or prevented or discharged the defendant from granting a lease.

As to the first and second branches of the plea, the plaintiff does not bring this action for, nor complain of, the nonexecution of a lease as constituting a breach of contract on defendant's part; and if a request in writing was a condition precedent on the plaintiff's part to entitle him to bring the present action, the first count of the declaration would be bad' for he neither avers nor excuses it; and I have already said I do not consider it bad on that ground.

In strictness, the plaintiff's covenants and agreements, and not their performance, constitute the consideration for the defendant's covenants. The lease and the rents to be reserved therein were prospective. The defendant bound himself to execute a lease on or before the 1st of October, 1852, upon the request in writing of the plaintiff, whose counsel was to prepare or approve of the instrument. It might be requested before that day. Whether the defendant would be entitled to delay the execution until the 1st of October arrived, is a question not now to be considered. If the plaintiff failed to make the request on or before that day, it may be that time was so far of the essence of the contract at law that he could not maintain an action of covenant against the defendant for refusing to execute a lease afterwards. But consistently with this, the defendant, if eager to proceed, might have tendered such a lease at the day as he considered himself bound to grant, and entitled to call upon the plaintiff to accept. If not, and if discharged by the plaintiff's laches from granting a lease, I do not think it a good defence to another, and what I consider an independent branch of the defendant's agreement-to deliver the staves, &c., which he was bound to be in readiness to do, on the 1st of October and 15th of November, but which he does not say he was prepared to deliver, excusing his non-readiness by alleging the plaintiff's failure to request or tender, and his own omission or neglect to grant or execute a lease.

If the defendant was not ready with the staves, to what purpose should the plaintiff be bound to tender a lease to

entitle him to demand or receive what the defendant does not shew himself in a situation to have performed, and to which the plaintiff was entitled, although he might have waived or declined or neglected calling for a lease before or on the 1st of October. It may be said that readiness on the defend. ant's part was not necessary to be averred, because admitting that he was not ready, his defence is, that the plaintiff fails to shew performance of that on his part which was a condition precedent or concurrent, without which he could not call upon the defendant to perform his part of the agreement. If strictly conditional, it might be so; still the defendant is by this plea excusing the non-performance complained of by the plaintiff, by alleging the omission of the plaintiff to call for, and of himself to grant a lease. If the defendant was not bound to grant it without a written request and the tender of a lease for execution, and it was in the plaintiff's discretion to make the request at his pleasure, or to delay it indefinitely, his omission to make such request on or before the 1st of October or 15th of November, 1852, would not amount to a discharge of the defendant from delivering the staves on those days respectively.

Could the defendant after the 1st of October have maintained an action against the plaintiff for not having requested or tendered a lease for execution, without alleging readiness to perform all he undertook to perform on that day, or alleging by way of special damage readiness to deliver the staves, &c., without adding an offer thereof, or alleging a refusal by the plaintiff to accept them? I'am disposed to think that in that case and in this his statement is incomplete, without averring his own readiness or offer, and shewing a failure on the plaintiff's part to accept a lease, or to secure or pay for the staves, so as to shift the first breach upon the plaintiff, and to justify the defendant in withholding performance on his own. The best opinion I can form therefore, is, that the matter set forth as a defence in this plea does not shew failure in the plaintiff to perform that which was a condition precedent or concurrent on his part.

The third plea is bad, for concluding to the country after denying facts not alleged by the plaintiff. The plaintiff

asserts that he was ready and willing to furnish the sureties named. The defendant pleads that he did not furnish them, and then concludes to the country. A distinct issue is not raised by this mode of traverse.

If, owing to the delivery of the agreement after the 20th of July, the words "on or before the 20th of July, 1852," are to be rejected as inapplicable, leaving it a mere agree ment to furnish such security in a reasonable time, and at all events concurrently with the delivery of the staves, &c., the plaintiff alleges his readiness and willingness to furnish the security, and the defendant's neglect and refusal to deliver the staves, &c. The defendant does not aver that he was ready on his part, or that the plaintiff was not ready and willing as he alleged; but avers that the plaintiff did not secure him, provided for by the agreement; concluding to the countryBoyd v. Lett (1 C. B. 222), Giles v. Giles (9 Q. B. 164), Wallis v. Warren (4 Ex. R. 361), Spartali v. Benecke (10 C. B. 212), The Great North of England Railway Co. v. Harrison (12 C. B. 576), Bonzi v. Stewart (7 M. & G. 757), Poole v. Hill (6 M. & W. 837), De Medina v. Norman (9 M.& W. 821).

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I do not see, if plaintiff was ready and willing to furnish the security, that he was bound to do more—that is, actually to furnish or give it (and no special mode of doing so is provided for) if the defendant was not ready and willing on his part. If the plaintiff was ready and willing to furnish the two persons named to join him in securing payment, he furnished them, so far as respected the staves to be delivered in October and November, 1852. If the defendant knew it, they might all three have joined in promissory notes payable to the defendant in three, six, nine, and twelve months. Consistently with this plea, a lease may have been executed, and then default in giving the securities would have gone to a part only, and not to the whole consideration on either side; and for that reason would be insufficient to bar the plaintiff's action.

The fourth plea seems to be the second and third united, and bad for duplicity-Wright v. Watts (3 Q. B. 89). If bound at all, the plaintiff was not bound to furnish the securities at any time before the time appointed for the delivery of the staves, &c. He alleges readiness, &c., within a reason

able time after the agreement and at the days. The defendant does not deny such readiness within a reasonable time, unless argumentatively, and if ready at the day it would be sufficient.

The plea alleges-first, that no lease was tendered for execution; second, that no lease was made by the defendant, nor the premises demised to or vested in the defendant (meaning plaintiff), &c.; third, that the plaintiff did not at any time before the time appointed, &c., furnish, &c. Consistently with all this, the plaintiff may have been ready to furnish the security and accept delivery, and the defendant may have refused to execute a lease or to deliver the staves, &c. He does not allege his readiness or willingness to do either.

I have said I did not consider the written request or tender of, or the making of a lease, a condition precedent or concurrent; and if not, the plea is bad; and if the clause respecting security is not void or abandoned, I do not consider it more than a concurrent act, and that readiness and willingness is sufficient to have been averred by the plaintiff.

I have tried to test the first count, and the pleas thereto, by supposing the defendant to have tendered the staves at the days, and demanded security and payment according to the agreement, and the plaintiff to have refused them because no lease had been executed or a term created, and the defendant suing for breach of contract on that ground, and admitting that no demise had been made, either because the plaintiff had not demanded a lease, &c., or because the defendant had refused to execute one, and asking whether in such circumstances the defendant could have maintained the action. The objection on the plaintiff's part would then be, that a demise to him was a condition precedent or concurrent, without which he was not bound to accept or pay for the staves, &c., his contract therefor having been made with a view to his becoming tenant of the cooper's-shop, &c., for a term of years, and without which the materials bargained for would not be of the same value to him, and that to be obliged to take them without a lease would be contrary to the intention of the parties.

Assuming that the plaintiff had in the meantime given security for performance of the agreement on his part, or that