"I entirely concur with the reasons given in the case of Feather v. Reg. (1865), 6 B. & S. 257; 35 L. J. Q. B. 200, for that judgment. It appears to me necessarily to follow from the wellestablished rule of law, that in the construction of Acts of Parliament, and in the construction of grants by the Crown, the Crown is not bound unless expressly mentioned. By which I understand that an Act of Parliament or a grant professing to bind all persons in general is not sufficient to bind the Crown, but that it must in terms say that it is intended to be applicable to the case of the Crown."-Dixon v. London Small Arms Co. (1876), 1 Q. B. D. 384, at p. 396; 46 L. J. Q. B. 617, at p. 621, Mellish, L. J.

(See also, post, p. 213, "Miscellaneous Instruments-Grants from the Crown.")

Dependent and Independent Covenants.

Covenants are to be interpreted to be either dependent or independent according to the intention of the parties to be collected from the whole deed.

Where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other.

Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant.

"The rule was well laid down by Lord Mansfield in Boone v. Eyre [(1777), 1 H. Bl. 273, n.], that where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other; but where the covenants go only to a part, there a remedy lies on the covenant to recover damages for the breach of it; but it is not a condition precedent."Ritchie v. Atkinson (1808), 10 East, 295, at p. 306, Lord Ellenborough, C. J.

"Whatever confusion may prevail among the earlier cases on the subject of dependent and independent covenants, the rule seems now to be well understood, as ably and clearly laid down by Mr. Serjeant Williams in his note to Pordage v. Cole (1681) [1 Wms. Saund. 320 b], namely, 'That where a covenant goes only to part of the consideration on both sides, and a breach of such

covenant may be paid for in damages, it is an independent covenant.'"-Carpenter v. Cresswell (1827), 4 Bing. 409, at p. 411, Park, J.

"The rule has been established by a long series of decisions in modern times, that 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. And one of the means of discovering such intention has been laid down with great accuracy by Lord Ellenborough, in the case of Ritchie v. Atkinson [ (1808), 10 East 295], to be this: that where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other; but where the covenants go only to a part, there a remedy lies on the covenant to recover damages for the breach of it, but it is not a condition precedent.' ”—Stavers v. Curling (1836), 3 Bing. N. C. 355, at p. 368, Tindal, C. J.

"In the numerous cases on the subject, in which it has been laid down that the general rule is to construe covenants and agreements to be dependent or independent, according to the intent and meaning of the parties, to be collected from the instrument, and, of course, the circumstances legally admissible in evidence with reference to which it is to be construed, one particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract, ... and the cases of Campbell v. Jones [(1796), 6 T. R. 570], and Boone v. Eyre [(1777), 1 H. Bl. 273, n. ; 2 W. Bl. 1312], are instances of the application of the rule. But there it appears, as Mr. Serjeant Williams observes, in 1 Saund. 320 b (and the Lord Chief Baron [Pollock], in delivering the judgment of this Court in Ellen v. Topp [(1851), 6 Ex. 424, at p. 441; 20 L. J. Ex. 241, at p. 245], adopts the observation), the reason of the decision in these and similar cases, besides the inequality of the damages, seems to be that, where a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he had not the whole, he should, therefore, be permitted to enjoy that part without either payment or doing anything for it. Therefore, the law obliges him to perform the agreement on his part, leaving him to his remedy to recover any damage he may

have sustained in not having received the whole consideration."" -Graves v. Legg (1854), 9 Ex. 709, at p. 716; 23 L. J. Ex. 228, at p. 231, Parke, B., delivering the judgment of the Court.

"These rules [laid down in the notes to Pordage v. Cole (1681), 1 Wms. Saund. 320 b] are not proposed for the purpose of absolutely determining the dependence or independence of covenants in all cases, but merely as furnishing a guide to the discovery of the intention of the parties. For, as Lord Kenyon said, in Porter v. Shephard [(1796), 6 T. R. 665, at p. 668], ' conditions are to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument; and technical words (if there be any to encounter such intention) should give way to that intention.""-Roberts v. Brett (1865), 11 H. L. Cas. 337, at p. 354; 34 L. J. C. P. 241, at p. 247, Lord Chelmsford.

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"The Court must ascertain the intention of the parties, as is said by Parke, B., in delivering the judgment of the Court in Graves v. Legg [(1854), 9 Ex. 709, at p. 716; 23 L. J. Ex. 228, at p. 231], 'to be collected from the instrument and the circumstances legally admissible in evidence with reference to which it is to be construed.' He adds, one particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract.'"-Bettini v. Gye (1876), 1 Q. B. D. 183, at p. 186; 45 L. J. Q. B. 209, at p. 212, Blackburn, J.

"The rule of construction is settled. The Court must ascertain the intention of the parties to be collected from the instrument and the circumstances legally admissible in evidence with reference to which it is to be construed.' That is the law as laid down by Parke, B., in Graves v. Legg (1854), 9 Ex. 709, at p. 716; 23 L. J. Ex. 228, at p. 231, cited by Blackburn, J., in Bettini v. Gye (1876), 1 Q. B. D. 183, at p. 186; 45 L. J. Q. B. 209, at p. 212. I have come to the conclusion that the provision in question in this contract [sale of goods] is not a condition precedent.". Kidston v. Monceau Ironworks (1902), 7 Com. Cas. 82, at p. 86, Kennedy, J.

Conditions Precedent and Subsequent.

Conditions are to be interpreted to be either precedent or subsequent according to the intention of the parties to be collected from the whole deed.

"If a condition precedent to a feoffment, &c. be impossible at the time or afterwards becomes impossible, the feoffment shall be of no effect, for, till performance, the estate cannot vest."-Comyns' Digest, tit. Condition (D).

"If a condition subsequent to a feoffment be impossible at the time of the making, the estate of the feoffee is absolute, and the condition shall be void."-Ibid.

"If a condition to a feoffment, &c. be possible at the making, and afterwards becomes impossible by the act of God, the estate of the feoffee is absolute; for being vested, it cannot be devested without the performance of the condition, which was for the benefit of the feoffee. So, if it becomes impossible by the act of the feoffor himself."-Comyns' Digest, tit. Condition (D,).

"So, if a condition precedent to a feoffment be illegal or repugnant, the estate can never vest."—Ibid. (D3).

"The words of a condition shall be liberally expounded to serve the intent of the parties."-Comyns' Digest, tit. Condition (E).

"All the instances of conditions against law in a proper sense are reducible under one of three heads:-1st. Either to do something that is malum in se, or malum prohibitum. 2ndly. To omit the doing of something that is a duty. 3rdly. To encourage such crimes and omissions. Such conditions as these the law will always and without any regard to circumstances defeat, being concerned to remove all temptations and inducements to those crimes."Mitchell v. Reynolds (1711), 1 P. Wms. 181, at p. 189, Lord Macclesfield, C. J. (cited by Sir John Stuart, V.-C., in Wilkinson v. Wilkinson (1871), L. R. 12 Eq. 604, at p. 608).

"There are no precise technical words required in a deed to make a stipulation a condition precedent or subsequent; neither doth it depend on the circumstance whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant. For the same words have been construed to operate as either the one or the other, according to the nature of the transaction."-Hotham v. The East India Co. (1787), 1 T. R. 638, at p. 645, Ashhurst, J., delivering the judgment of the Court.

"It has frequently been said, and common sense justifies it, that conditions are to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument; and technical words (if there be any to encounter such intention) should give way to that intention."Porter v. Shephard (1796), 6 T. R. 665, at p. 668, Lord Kenyon, C. J. (cited by Lord Chelmsford in Roberts v. Brett (1865), 11 H. L. Cas. 337, at p. 354; 34 L. J. C. P. 241, at p. 247).

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The question is, Whether it be a condition precedent? And that depends 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 in sense and reason depend upon the performance of the other."-Ritchie v. Atkinson (1808), 10 East, 295, at p. 306, Lord Ellenborough, C. J.

"Now, whatever might have been the question if it had been raised whilst the agreement was executory, we are clearly of opinion that, the defendant having received a substantial portion of the consideration, it is no longer competent to him to rely upon. the non-performance of that which might have been originally a condition precedent [per Parke, B., in Graves v. Legg (1854), 9 Ex. 709, at p. 716; 23 L. J. Ex. 228, at p. 231; White v. Beeton (1861), 7 H. & N. 42; 30 L. J. Ex. 3:3; and see the judgment of the Court in Ellen v. Topp (1851), 6 Ex. 424, at p. 441; 20 L. J. Ex. 241, at p. 245]. This doctrine is well and firmly established, and is in accordance with principles of common sense and justice."-Carter v. Scargill (1875), L. R. 10 Q. B. 564, at pp. 567, 568, Field, J., delivering the judgment of the Court (Cockburn, C. J., Quain and Field, JJ.).

Clauses against Public Policy or the Policy of the Law. "Public policy, like other things, must depend on a balance of what is politic or right. In this very matter of public policy we find that the principle has been sometimes applied (for instance) to a covenant in restraint of trade deliberately entered into by a man who afterwards wishes to avoid its enforcement against him, because he says restraint of trade is against public policy. In the old days that used to be strictly so held. But in modern days the Court looks at the whole subject-matter, and bears in mind that, though, on the one hand, it may be contrary to public policy that there should be restraint of trade, on the other hand, it is contrary