of the defendant could not be detained or its coal seized for the collection of the toll, without the amount was established—that is, ascertained and made certain. Penn. Coal Co. v. Del. & Hudson Canal Co., 40 N. Y. 72. The defendant could not be put in default for non-payment of the toll until, in like manner, the amount payable was ascertained and established, and no action is maintainable until after default. When the right to the additional toll became perfect the plaintiffs had the right of distress or a right of action. The remedies were concurrent, and under the agreement the right was not perfect until the rate was established. The defendant had not agreed to pay a reasonable toll. Had that been the contract, a right of action might accrue, although the right of distress might not exist for want of certainty as to the amount payable. But the parties did not intend to leave the amount uncertain, and have agreed in what manner and by whom the amount should be determined, and the intent is clearly manifested from the terms used, and the construction of the contract to make the award a condition precedent to the right of action for the additional toll. This is an especially reasonable provision in this contract, as before suggested. And again, the defendant was not bound to send a ton of coal over the plaintiffs' canal, and it was right and proper therefore that the toll to be exacted and collected should be known, even in advance of its actual imposition, that they might elect whether to send coal to market by that route. Hudson Canal Co. v. Penn. Coal Co., 8 Wallace, 276.

The judgment must be reversed and a new trial granted, costs to abide event.

All concur, PECKHAM, J., not sitting.

GROVER, J., Concurs on the second ground, without expressing an opinion on the ground first considered by ALLEN, J. Judgment reversed.

(b) Conditions implied in law.

PORDAGE v. COLE.

IN THE KING'S BENCH, MICHAELMAS TERM, 1607.

[Reported in 1 Saunders 319.]

DEBT upon a specialty for £774 15s. The plaintiff declares that the defendant, by his certain writing of agreement made at, etc., by the plaintiff by the name, etc., and the defendant by the name, etc., and brings the deed into court, etc., it was agreed between the plaintiff and defendant in manner and form

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following-viz., that the defendant should give to the plaintiff the sum of £775 for all his lands, with a house called Ashmole House thereunto belonging, with the brewing vessels remaining in the said house, and with the malt-mill and wheelbarrow; and that, in pursuance of the said agreement, the defendant had given to the plaintiff 5s. as an earnest ; and it was by the said writing further agreed between the plaintiff and defendant, that the defendant should pay to the plaintiff the residue of the said sum of £775 a week after the feast of St. John the Baptist then next following (all other movables, with the corn upon the ground, except). And although the defendant has paid 5s., parcel, etc., yet the said defendant, although often requested, has not paid the residue to the damage, etc. The defendant prays oyer of the specialty, which is entered in hæc verba, to wit: "May 11th, 1668. It is agreed between Dr. John Pordage and Bassett Cole, Esq., that the said Bassett Cole shall give unto the said doctor £775 for all his lands, with Ashmole House thereunto belonging, with the brewing-vessels as they are now remaining in the said house, and with the malt-mill and wheelbarrow. In witness whereof we do put our hands and seals, mutually given as earnest in performance of this 5s., the money to be paid before midsummer, 1668; all other movables, with the corn upon the ground excepted." And upon oyer thereof the defendant demurs. And Withins, of counsel with the defendant, took several exceptions to the declaration. The great exception was that the plaintiff in his declaration has not averred that he had conveyed the lands, or at least tendered a conveyance of them; for the defendant has no remedy to obtain the lands, and therefore the plaintiff ought to have conveyed them, or tendered a conveyance of them, before he brought his action for the money.' And it was argued by Withins, that if by one single deed two things are to be performed-namely, one by the plaintiff and the other by the defendant, if there be no mutual remedy, the plaintiff ought to aver performance of his part; Trin. 12 Jac. 1 between Holden v. Taylor,' Ughtred's Case,' and Sir Richard Pool's case there cited, and Gray's Case; and that the word (pro) made a condition in things executory. And here in this case it is a condition precedent which ought to be performed before the action brought, where. fore he prayed judgment for the defendant.

But it was adjudged by the Court, that the action was well brought without an averment of the conveyance of the land;

1 Only so much of the case is given as relates to this exception.-ED.

2 1 Roll. Abr. 518 (C.), pl. 2–3. 17 Rep. 10.

45 Rep. 78-79; S. C. Cro. Eliz. 405. 5 Co. Litt. 204a.

because it shall be intended that both parties have sealed the specialty. And if the plaintiff has not conveyed the land to the defendant, he has also an action of covenant against the plaintiff upon the agreement contained in the deed, which amounts to a covenant on the part of the plaintiff to convey the land; and so each party has mutual remedy against the other. But it might be otherwise if the specialty had been the words of the defendant only, and not the words of both parties by way of agreement as it is here. And by the conclusion of the deed it is said that both parties had sealed it, and therefore judgment was given for the plaintiff, which was afterward affirmed in the Exchequer Chamber, Trin. 22 of King Charles the Second.

KINGSTON v. PRESTON.

IN THE KING'S BENCH, EASTER TERM, 1773.

[Cited in Douglas 688.]

ACTION of debt, for non-performance of covenants contained in certain articles of agreement between the plaintiff and the defendant. The declaration stated: "That, by articles made March 24th, 1770, the plaintiff, for the considerations thereinafter mentioned, covenanted with the defendant to serve him for one year and a quarter next ensuing, as a covenantservant, in his trade of a silk-mercer, at £200 a year, and in consideration of the premises, the defendant covenanted, that at the end of the year and a quarter, he would give up his business of a mercer to the plaintiff, and a nephew of the defendant, or some other person to be nominated by the defendant, and give up to them his stock in trade, at a fair valuation; and that between the young traders deeds of partnership should be executed for fourteen years, and from and immediately after the execution of the said deeds, the defendant would permit the said young traders to carry on the said business in the defendant's house. Then the declaration stated a covenant by the plaintiff, that he would accept the business and stock in trade, at a fair valuation, with the defendant's nephew, or such other person, etc., and execute such deeds of partnership, and, further, that the plaintiff should, and would, at, and before, the sealing and delivery of the deeds, cause and procure good and sufficient security to be given to the defendant, to be approved of by the defendant, for the payment of £250 monthly to the defendant, in lieu of a moiety of the monthly