the rebuilding and restoration of the premises." After thus stating the rule of law he adds, "It appears to me that in this respect equity must follow the law. The plaintiff might have provided in the lease for a suspension of the rent in case of accident by fire; but not having done so, a court of equity cannot supply that provision which he has omitted to make for himself; and it must be intended that the purpose of the parties was according to the legal effect of the contract." Such are the rules established both at law and in equity, and still continuing, notwithstanding the judges are constantly expressing their disapprobation of them. In Gates v. Green, 4 Paige 357, Chancellor Walworth says, "It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used." Yet, while regarding this as natural equity, he did not feel at liberty to disregard the rule which he considered settled, that "a lessee of premises which are burned, has no relief against an express covenant to pay the rent either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild." Certainly, if a lessee chooses to say in express terms, that he covenants to pay the rent during the continuance of the lease, notwithstanding all the buildings be in the mean time destroyed by fire or the public enemy, he should not be entitled to a suspension of the rent. But the fault of the rule which has been established, appears to be in considering such as the meaning of a covenant, when it is manifest that it was not the intention of the parties. The remark of M'Kean, C. J., in Pollard v. Shaaffer, 1 Dall. 215, is not less applicable to a covenant to pay rent, than to a covenant to rebuild or repair. "Suppose," he says, "when the lease was executed, that the lessee had been asked, "Is it your meaning, that in case the buildings shall be destroyed by an act of God or public enemies, you are to rebuild or repair them?" His answer would have been, unquestionably, "No, I never entertained such an idea." Should the like question have been put to the lessor, his answer would certainly have been, "No, I do not expect anything so unreasonable." The section to which this note is appended, lays down a rule, which it is thought will better accord with that natural equity of which Chancellor Walworth speaks, than the rule now existing.

The section thus proposed by the revisors was not adopted ; it was altered by the committee on revision, and as so altered was passed in the terms mentioned, ante, p. 48. See § 19 on that page.

In Virginia then, as in England, it is still a general principle that where a tenant covenants generally to pay the rent he is not absolved, although the premises be destroyed by fire. Thompson v. Pendell, 12 Leigh 601. This case was taken. out of the operation of the general rule by the terms of the contract which were somewhat peculiar.

It is so likewise in New York. In Allen v. Culver, 3 Denio 294, but for the provision in the lease, looking to the case of fire, the tenant would undoubtedly have been liable to pay the whole rent without any abatement in consequence of the destruction of a portion of the buildings. Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 4 Paige 355; 3 Kent's Com. 465. As it was, under the terms of the lease, the lessee in Allen v. Culver was liable only to pay a proportional part of the rent for the premises not destroyed by the fire.

13. Of covenants in the sale of chattels.

It being a general rule that in the bargain and sale of an existing chattel, by which the property passes, the law does not (in the absence of fraud) imply any warranty of the good quality or condition of the chattel so sold, the simple bargain and sale of a ship is not deemed to imply any contract that it is then sea-worthy or in a serviceable condition; and an express covenant that the defendant had full power to bargain and sell in the manner before mentioned does not create any further obligation in this respect. But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description. Budge v. Wain, 1 Stark. N. P. C. 504; 2 Eng. Com. Law Rep. 486; Shepherd v. Kain, 5 Barn. & Ald. 240; 7 Eng. Com. Law Rep. 82. Therefore the sale of a ship implies a contract that the subject of the transfer did exist in the character of a ship; and an express covenant that the defendant had power to make the bargain and sale of the subject before mentioned, will operate as an express covenant to the same effect. Of such a covenant, therefore, there is a breach if the subject of the transfer had been, at the time of the covenant, physically destroyed, or had ceased to answer the designation of a ship; but there is no breach if it still bore that character, although the ship was damaged, unseaworthy or incapable of being beneficially employed. Bair v. Gibson, 3 M. & W. 399. In this case the subject of the transfer had the form and structure of a ship, although on shore, with the possibility, though not the probability, of being got off. She was still a ship, though at the time incapable of being, from the want of local conveniences and facilities, beneficially employed as such. The covenant, therefore, of the defendant, that he had power to transfer her as a ship at the time of executing the deed, was held not to be broken.

A covenant to do all reasonable acts for further and better assigning and transferring chattels conveyed by deed, means

merely that neither the covenantor nor those claiming under him will do anything to interrupt the quiet enjoyment of the chattels by the parties contemplated by the deed. Parke, B. in Word v. Audland, 16 M. & W. 875. This case was considered to fall directly within what Lord Hale lays down in Dering v. Farington, 1 Freeman 368, 1 Mod. 113, 3 Keble 104, 6 Vin. Abr. 381.

In South Carolina an express warranty of title to a slave does not exclude an implied warranty of soundness. But when the contract is evidenced by a bill of sale under seal, the terms of which import clearly a warranty of title, the covenant is not extended by intendment to give it the effect of a warranty of soundness. Roseman v. Hughey, Rice 437.

14. Of a covenant by a man to devise or bequeath his estate.

Whether a man covenant to bequeath all his personal estate, or all his real and all his personal estate, among particular persons, he will not be guilty of a breach of the covenant in selling or conveying a part of the estate; such a covenant applying only to the estate that he shall have at his death. Lewis v. Madocks, 8 Ves. 150; 17 Id. 48; Needham v. Kirkham, 3 Barn. & Ald. 531; 5 Eng. Com. Law Rep. 364.

15. Of covenants to pay; distinction between a covenant to pay money and a covenant to pay property.

A general undertaking to pay money, without specifying the time of payment, obliges the party to pay immediately; but an undertaking to do any collateral act, as to convey lands, entitles the party to perform it, at any time during his life, unless hastened by the request of the other party. Green, J. in Bailey v. Clay &c. 4 Raud. 350.

A stipulation to pay money on a particular day unless some event shall happen which, in its nature, may happen either before or after that day, necessarily implies that the money is to be paid if the event does not happen before that day. Thus where the obligor undertook that if W. C. who was prosecuted for murder was not found guilty of murder in the first degree, he would pay the obligee $200 on or before the 12th day of September 1819;-the instrument was construed to mean that if W. C. was not found guilty of murder in the first degree and sentenced therefor before that day, the obligee was entitled to the $200. Cobbs v. Fountaine, 3 Rand. 486.

A bond or note payable in property at a stipulated price or the market value, becomes payable in money by a failure to

deliver or tender at the day. To pay in such property is a privilege that may be waived; and when it is not claimed at the proper time the debtor has made his election. Chambers v. Harger, 6 Harris 16; Lewis v. Long, 3 Munf. 136. In this case the promisor was to pay in articles of fluctuating value, and the quantity of those articles which he would have to pay, depended upon the price of the articles at the time of payment; he was to pay in them what would be equal in value, at that time, to the sum of money mentioned in the obligation.

But if the quantity of the articles to be delivered, be fixed, so that at the day of payment, that quantity of such articles may fall short of the debt, the value of that quantity is what the creditor is to recover, and the mode of recovery is not by action for a debt but by an action for damages. Thus an agreement to pay on or before a specified day $813 79 cts. in notes of the United States bank, or either of the Virginia banks, was considered an engagement to pay so many of such bank notes as on their face would nominally make the sum of $813 79 cts. ; and there being no difference between bank paper and any other commodity, the value of the notes on the day of payment was the criterion by which to ascertain the damages. Such damages were not recoverable in an action of debt. Beirne &c. v. Dunlop, 8 Leigh 514.

16. Whether the liability is for a debt or only for damages is material in respect to the form of action.

Covenants the performance whereof is secured by a penalty are susceptible of a two fold remedy: 1. an action of debt for the penalty, after the recovery of which the plaintiff cannot resort to the covenant; because the penalty is a satisfaction for the whole; 2. an action of covenant in which the plaintiff, waiving the penalty, proceeds on the covenants, and may recover more or less than the penalty toties quoties. Lowe v. Peers, 4 Burr. 2225; Roane, J. in Eppes's ex'or v. Demoville, adm'r, 2 Call 29.

Though the performance is not secured by a penalty, still the covenant may be susceptible of a two fold remedy, when by it there is created a debt, that is an obligation to pay a sum of money. A debt may be created by a contract, even of a vendor of land. Suppose, for instance, J. S. contracts by deed, to convey lands to J. N. in three months, or at his election in lieu thereof to pay J. N. $100 at the expiration of a farther term of three months after the first;-during the first three months, the covenantor may either convey land or

pay money, and his contract creates no debt; but on failure to convey the land in three months, the obligation becomes single and absolute to pay money; the debt first accrues from that time. 23 Pick. 299.

When the contract neither subjects to a penalty nor creates a debt, still the breach of such contract gives a right of action to recover the damages sustained by such breach; if the contract be under seal, an action of covenant; if it be not under seal, an action of assumpsit.

CHAPTER VI.

OF CONDITIONS PRECEDENT; WHAT PERFORMANCE BY PLAINTIFF MUST PRECEDE HIS ACTION.

1. General rule as to what is a condition precedent.

The old doctrine, the injurious tendency of which was noticed in Thomas v. Cadwallader, Willes 496, has ceased to prevail; the opinion expressed in Kingston v. Preston, Dougl. 689, has become the rule. 8 T. R. 371. It depends, says Lord Ellenborough, not on any formal arrangement of the words but on the reason and sense of the thing, as it is to be collected from the whole contract, whether of two things reciprocally stipulated to be done, the performance of the one does in sense and reason depend upon the performance of the other. Ritchie v. Atkinson, 10 East 306. In the language of Tindal, C. J. the question whether covenants are to be held dependent or independent of each other, is to be determined by the intention and meaning of the parties as it appears on the instrument and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms of expression must give way. Stavers v. Curling, 3 Bingh. N. C. 355; 32 Eng. Com. Law Rep. 159. This general rule is now well established both in England and the United States. Glaholm v. Hays, 2 Man. & Grang. 267; 40 Eng. Com. Law Rep. 364; Fishmongers Co. v. Robertson, 5 Man. & Grang. 197; 44 Eng. Com. Law Rep. 112; Ollive v. Booker, 1 W. H. & G. 423; Macintosh v. Midland Railway, 14 M. & W. 548; Jowett v. Spencer, 1 W. H. & G. 647; Grey &c. v. Friar, 15 Adol. & El. N. S. 912; 69 Eng. Com. Law Rep. 912; Friar v. Grey &c. 5