it had been waived or abandoned, or only demanded concurrently by the defendant, I should think the defendant might maintain such action unless the plaintiff had previously demanded and tendered a lease for execution. If he had done so, and the defendant had refused to execute it, the plaintiff might perhaps say the lease was the primary object of the agreement, and that the defendant having failed in the substantial part, the plaintiff was not bound to perform subordinate parts. Reversing the parties (which is the present case), the same reasoning may not apply in the absence of any step towards performance on the defendant's part. If it did equally well apply, still I should have to say that the agreement seems to me to have made the delivery of the staves, &c. in October and November, separate from the lease. That part of the agreement was not, like the residue, to be incorporated in the lease. If it was, it would have been rendered dependent upon such a Iease; but the isolated way in which it is introduced seems to detach it therefrom and render it a substantive, independent clause in the agreement on both sides, and not going to the whole consideration on either; and therefore that the plaintiff having given, or being ready and willing to give, security for due performance on his part, became entitled to demand delivery of the staves on the defendant's part. Everything was to be incorporated in the lease except the furnishing securities on the plaintiff's part, which went to the whole consideration on the defendant's part (and to furnish which readiness is averred), and the delivery of the staves, &c., in October and November, 1852, on the defendant's part, but which went to a part only of the consideration on both sides; under which circumstances the cases appear to establish that it formed an independent clause in the agreement.

I have felt much difficulty in the case; but the best opinion I can form is, that judgment should be for the plaintiff as to the first count and on the demurrer to all the pleas to both counts, and for the defendant on the second count.

MCLEAN, J.-The first part of the agreement declared upon relates to the leasing of certain premises of the defendant to

D

VOL. V.

the plaintiff, and the terms and conditions of the lease. The defendant bound himself to grant and execute a lease on or before the 1st day of October, 1852, to be prepared or approved by the counsel of plaintiff, upon request made to him in writing under the hand of plaintiff for that purpose, and the lease was to contain certain stipulations as to rent, &c., to be kept by the plaintiff; but there is no obligation in the agreement resting on the plaintiff to make a request in writing, or to accept a lease if made to him without such request. But even if there were, that portion of the agreement is wholly distinct from and resting on a distinct consideration from the subsequent part, which relates to the delivery of certain machine staves, heading, and hoops by the defendant to the plaintiff. It may have been in the contemplation of the parties that the renting of the cooper's-shop and premises should precede the delivery of the staves and other materials to be used therein; but the taking of a lease by the plaintiff is a matter which, from the terms of the agreement, appears to have been optional with him. By making a request in writing, and furnishing the securities specified, the plaintiff could compel the defendant to execute a lease; but there is no stipulation or covenant on the part of plaintiff to make such request, or to take a lease if executed. There is, however, in the agreement a covenant to deliver to the plaintiff, at the premises specified, the quantities of staves, heading, and hoops, for the non-delivery of which the action is brought; and the promise and undertaking to deliver are not contingent or dependent upon the taking of the lease. No stipulation was to be contained in the lease as to the delivery of the staves, &c., in question; but it was to contain a covenant on the part of defendant to deliver to the plaintiff, not at the premises intended to be leased, but at defendant's factory in Oshawa, certain other staves, at different periods during the years 1853 and 1854. The plaintiff, having no lease and no covenant, cannot enforce the delivery of the last mentioned staves, and perhaps in equity he ought not to claim damages for the non-delivery of the staves, &c., to be delivered in October and November at the premises agreed to be leased to him on his request; but the taking of the lease being optional

on his part, and not a condition precedent to the delivery of the staves stipulated for in the agreement, we cannot hold that his action is not sustainable on the grounds urged by the defendants. Another ground of objection is, that the declaration affects to treat the delivery of the staves as wholly independent of the giving of any lease, or the giving of any security. The plaintiff bound himself to furnish particular individuals on or before the twentieth day of July, 1852, as securities to the plaintiff for the due performance of the agreement; and it was no doubt intended that the security should be for all that the plaintiff would be bound to do under the agreement, including all the stipulations as to payment of rent and keeping the premises in repair, as well as the payment for the staves to be delivered, under the covenant to be inserted in the lease, during the years 1853 and 1854. The security was to have been given on or before the 20th day of July, 1852; and had the agreement been executed in due time, the giving of the security within the time mentioned would undoubtedly be a condition precedent. But it is alleged in the declaration, and not denied on the pleadings, that the agreement was not executed till after the 20th day of July, 1852; and if so, then it was impossible for defendant to fulfil that part of the agreement which related to the giving security by that particular day. The defendant must have been aware at the time of the execution of the agreement that the giving security had become impossible; and it appears to me that under such circumstances his acceptance of the agreement amounted to a waiver of the stipulation to give such security. In the case of Hall v. Cazenove (4 East, 477), Lord Ellenborough, in delivering judgment, says, "When the deed was executed or concluded by the delivery, the stipulation, which was not impossible in its nature when the deed was first framed, had become impossible from the time having passed; the stipulation had therefore then become wholly nugatory, and cannot be understood as having formed any part of the contract between the parties without imputing to them the most manifest absurdity. Then the rest of the contract may take effect which was prospective at the time when the deed was concluded." Then if that be correct-and it

appears to me to be so-all the stipulations contained in the agreement, except that relating to the giving of security, remained in full force, and the plaintiff had a right to sustain an action for the breach of any part which the defendant was bound to perform.

The pleas of the defendant, setting up as a defence the taking of a lease and the giving of security by the plaintiff as conditions precedent, when in fact the latter had become impossible when the agreement was executed, and the former was wholly optional with the plaintiff, appear to me to be incapable of being sustained. Had it been incumbent on plaintiff to furnish the security mentioned in the agreement within a reasonable time after the agreement was executed, the plaintiff alleges that he was ready and willing to furnish it; and that allegation is not denied by the defendant, nor is there any objection to the declaration on the ground that there is no averment of notice to the defendant of such readiness and willingness, or that such security was offered. But if it were otherwise, I do not know that it could make any difference, if it is to be considered that the plaintiff was released from any necessity to give the security by the defendant's execution of the agreement after the time had clapsed for the giving of such security. It appears to me that all that is now vital in the agreement is that part which relates to the staves, &c., specified in it to be delivered in October and November 1852; that the covenant to deliver these is an independent covenant; and that the first count of the declaration is good. The second count, stating an agreement different from that set out on oyer, appears to be bad, and I think the pleas also bad in law. Judgment, therefore, must be for plaintiff on demurrer to the pleas, and for defendant. on general demurrer to the second count.

RICHARDS, J., concurred.

ROSS ET AL. v. FAREWELL ET AL.
Bail-Liability of.

Defendants being bail of H. to the limits of the gaol of the (then) United Counties of York, Ontario and Peel; the County of Ontario, in which the debtor H. resided, being separated by proclamation from the other two counties after the recognizance was entered into, and he having continued to reside in the County of Ontario after its separation from the other two: in an action of debt on the recognizance,

Held, that defendants were liable as for a breach of the recognizance; that the limits of the gaol of the United Counties of York, Ontario and Peel mean the limits for the time being, and that when Ontario was separated they became the limits of the gaol of the two remaining counties. Writ issued 10th of May, 1854. Venue-United Counties of York and Pecl. Debt, on recognizance of bail to the limits.

Declaration states that on the 28th of November, 1853, the plaintiffs, in the Court of Common Pleas, recovered against Prosper Armstrong Hurd £1081 38., in an action of assumpsit, for damages and costs, upon which a writ of Capias ad satisfaciendum issued on the same day to the sheriff of the United Counties of York, Ontario and Peel, endorsed for £1062 198. 8d. damages, and £18 38. 4d. costs, with interest, &c., which Ca. Sa. was delivered to W. B. Jarvis, then being sheriff of the said united counties, and now of the Counties of York and Peel, who arrested the said Prosper Armstrong Hurd thereunder; and thereafter, to wit, on the 2nd of December, 1853, at Oshawa, in the County of Ontario, one of the said united counties, the said Prosper A. Hurd came by his attorney, and defendants in person, before Gavin Burns, a commissioner duly authorized, &c., and thereupon said Prosper A. Iurd was delivered to the defendants, and the defendants then and there became pledge and bail for him, and did jointly and severally undertake that he, said Prosper A. Hurd, should remain and abide at the suit of plaintiffs, within the limits of the gaol for the United Counties of York, Ontario and Peel, and not depart therefrom unless released therefrom by due course of law; and that the said Prosper A. Hurd should and would well and truly obey all notices, orders and rules of court touching and concerning him the said Prosper A. Hurd, remaining or continuing upon the said limits, or being remanded or ordered to close custody therefrom; and in the event of his faling in any particular, that they would repay such sum of money, costs, sheriff's charges, fees and poundage, as the said Prosper A. Hurd was