
    M'FARLAND vs. HUGHLING.
    
      Action on the Case. Non-assumpsit and issue.
    Upon the following articles : the defendant "doth agree to rent for two years, from the twentieth of March next, the plantation and tavern known by the name of New Market, or Martin Grider's old place, all the houses and fields there to belonging, and out-houses ; also the gin house, if required for a stable, when no business for ginning ; which tavern house shall be left in good repair by the time of Hughling getting possession-windows glazed, and a floor laid in the store-room loft, the present shelves all removed, for which said Hughling agrees to pay the said M‘Farland the sum of l. 50 Virginia currency, at the expiration of each year ; with a proviso, that said Hughling shall be at liberty to build a new kitchen, and make some necessary repairs, which said M‘Farland agrees to come out of the rent; dated January the 27th, 1804.”
    What covenants are mutual and independent.
    Stuart, for the defendant,
    offered several witnesses to prove that the plaintiff had not put the houses, &c. in repair,which it was insisted was a covenant precedent, and that the plaintiff must shew that he performed his part, before he could recover.
    Dickinson cited.
    6 Bac. 402, 247. Guil. Ed. Co. Lit. 218. Fra. Max. Eq. 41. 1 H. B.273. Pow. Cont. 259, where a covenant only goes to a part of the consideration, there, they must be independent.
    Stuart argued e contra,
    
    that the agreement was not in presenti ; the words “doth agree to lease." shews it to be only an agreement that he would lease, and insisted that as performance was averred in the declaration, the plaintiff ought to prove it, or he cannot recover.
   Overton, J. and Powell, J.

were inclined to think that these covenants were dependent, and not mutual, upon which a jury found a verdict for the defendant. Upon further consideration this opinion was found to be incorrect, and a new trial was granted.

Vide in relation to covenants dependent and independent,

1st. As regarding the intention, 1 T. Rep. 645.-6 T. Rep. 668, 57. 7 T. Rep. 130.

2d. When a day is stated for the performance of a covenant, which performance is the consideration with the other party, and this day may, or is certain to happen before the time of performance by the other party, the covenants are independent. Vide 1 Salk. 170. 1 Ld. Ray. 665. 1 Lutw. 250. 12 Mod. 461. 1 Vent. 177. Peters vs. Opie. 1 Salk. 113, 2 H. B 3 89. 6 T. R. 572.

3d. Where a day is appointed for performance,which is to happen after the thing, (which is the consideration of the performance) is to be done, no action lies before the thing is done. 1 Salk. 171. 12 Mod. 462. 1 L. Ray. 665. 1 Lutw. 251. Dyer 76, pl. 30.

4th. Where a covenant goes to a part of the consideration on both sides, and a breach may be compensated in damages, it is independent. 1 H. B. 273, 279. 6 T. R. 573.

5th. Covenants going to the whole consideration on both sides, are dependent, and performance must be averred. 1 Vent. 147. 1 H. B. 270.

6th. When two acts are to be done at the same time, it is dependent as to both, and performance must be averred and proved by the plaintiff, so as to enable him to sustain an action. 1 Salk. 112. 2 Salk. 623. Doug. 684, 691. 4 T. Rep. 761. 6. T. Rep. 665. 7 T. Rep. 125.

At December term, 1808, verdict for the defendant.  