we must give effect to the words in their ordinary and grammatical sense, and if that leads to any absurdity or repugnance, or inconsistency with the manifest purpose of the parties to the instrument, to be collected from every part of it, the language must be modified so as to avoid such inconvenience, but no further; and effect must be given to all the words used, if it can be done. Adopting these rules, I think that the words "all arrears of rent being paid, and all and singular the covenants and agreements on the part of the lessees having been duly observed and performed," do not constitute a condition precedent.

It will at once be seen that the performance of all the covenants could not be a condition, for there are some which do not apply until after the end of the term, which it was therefore impossible to perform before; and it is perfectly clear that the language of the proviso must be modified by confining the condition of performance to such as it was the duty of the lessees before that time to perform. But it is possible that the lessees might observe and perform every covenant to be performed before the expiration of the notice, and therefore there is not the same indisputable reason to alter the language of the proviso, as where it is absolutely impossible. The extreme difficulty, however, of performing many of the covenants contained in this lease exactly, coupled with the great importance to the tenant to be able to determine a lease of mines, which is of such a speculative character, and attended with so much risk, renders it highly improbable that the parties could have intended that the power to determine the lease should depend upon the performance by the lessee of every covenant, especially when some of them are of such a descrip- * 613 tion that no degree of care would certainly secure their

*

performance; such as the covenant to keep the grass lands free from trespass, which is a warranty against trespassers, and the covenant to consume on the premises all the hay, straw, and turnips produced thereon, which, if it should be pressed with extreme strictness, would be broken if every cartload of straw should not be so spent, even though it might have been stolen or destroyed by accident. These are good reasons for supposing that the parties never could have intended to make the exact and due observance of all and every such covenants a condition precedent, either to the right to determine the lease, or to the off-going crop, which is in the same category. If they did so intend, the defendants would

of course be bound, just as a lessee is bound who agrees that his lease should be forfeited for any breach of covenant, however trifling. But it is to be observed, that in such a case the lessee does not merely rely on the forbearance of the lessor, in not insisting on each minute breach, but a forfeiture is, by law, waived by every subsequent act, even of the slightest nature, affirming the lease after knowledge of its being forfeited. In the present case no waiver by the lessor of the breach of covenants actually broken would put the lessee in the same situation as if they had been performed, according to the terms of the lease; for that would be to vary, by parol, the stipulations of an instrument under seal, which cannot be done. The acceptance of an agreed satisfaction by parol would discharge a covenantor from damages for the breach of covenants, or might be evidence of a new contract, on the terms of the deed, as explained in the case of Heard v. Wad ham,1 by Lord Kenyon and Mr. Justice Lawrence, but the stipulation of a deed cannot be varied without deed.

* 614

*If, however, there were no expressions in this lease to qualify or explain the meaning of the words "all and singular the covenants and agreements on the part of the lessee having been duly performed," it would be difficult to avoid giving them full effect as a condition precedent, and the case of Porter v. Shephard2 could not be satisfactorily distinguished from the present. The words there were certainly stronger, " from and after payment of rent and performance of covenants" being clearer words of condition; and the covenants, too, in that case were not so numerous or so difficult to perform as in this lease; but still I think, that unless there had been some qualifying words, the case would have called upon us to decide in conformity with it.

But there are very important words which follow, and which, I think, cannot be reasonably explained, and have effect given to them according to their ordinary meaning, without holding that the words "all and singular the covenants and agreements," &c. do not constitute a condition precedent. These words follow: "nevertheless without prejudice to any claim or remedy which any of the parties hereto, or their respective representatives, may then be entitled to for breach of any of the covenants or agreements hereinbefore contained." These words, according to their ordinary construction, clearly show that, after the end of the lease by 1 1 East, 630.

26 T. R. 665.

the notice, breaches of covenant might still exist, on which the lessee might have to sue, and consequently that the parties never could have intended that the performance of every covenant should be a condition precedent, for if that had been the meaning, the reservation of the right to sue on the broken covenant would be absurd, as the lease could not have determined at all.

A very intelligible and consistent meaning may be given to the whole sentence without doing violence to the words. * The effect would be this: If eighteen calendar months' * 615 notice in writing should be given, expiring at the end of the

eighth year, then, if the arrears of rent are paid, and all the covenants have been observed, the lease, and every clause and thing therein contained, shall, at the expiration of the eighth year, cease and determine, and be utterly void to all intents and purposes; the lease shall become as waste paper and useless; but if covenants are broken on either side, the remedy in the other shall still continue, and the lease not cease and be void in respect of the remedy for those breaches, though it shall for other purposes. It is true that the clause provides that " it shall be void in like manner as if the whole of the years of the term had run out and expired," and if that only had been the case, the lease would not be altogether void and like waste paper.

But these words may be construed, not to limit the preceding declaration that the lease shall be utterly void, but to explain that such termination of the lease shall also be on the same footing as the expiration of the term by efflux of time, as to the many covenants depending upon the end or determination of the term con tained in the lease. This construction makes all the provisions consistent; but if this construction is not adopted, the clause must be expunged, or the language of this clause must be materially altered, in order to make it consistent with the supposition that the words, before so often quoted, constituted a condition precedent.

It is said by Mr. Justice Patteson, in delivering the judgment of the Court of Exchequer Chamber, that the additional clause may be consistently explained in three ways. All of these require the addition or the striking out of words.

First. It is said they may been inserted to enable the les

sor to recover for breaches not known at the end of the *616 term; but the clause reserves the right to remedies for any

of the covenants without any such limitation. To confine it to "the undiscovered breaches" would be to add words; so would it be to confine it to remedies by re-entry or distress, for the clause is not to prejudice any claim of remedy; nor if the rent had been all paid, and the covenants all performed, could there be any right to re-enter or distrain.

Secondly. It is said the clause would apply if the lessor had waived the condition precedent by accepting notice and taking possession, though he might be aware of some breaches of covenant; but that would require an addition of words to limit the remedy to such previous breaches of covenant, whereas, as the clause stands, it is given as to all. Nor, for the reason before assigned, could the lessor waive, by accepting and taking possession, the performance of the condition precedent; a deed would be necessary for that purpose; and after such waiver and taking possession, the lease would still continue, if the performance of the covenant was a condition precedent, and the covenant had not been performed. To give complete effect to this construction it would be necessary to add, after the words "all the covenants being duly performed," some such additional words as "unless the lessor shall think fit to waive or excuse such performance."

In the third place, it is said the stipulation may have been introduced to preserve the right of the lessee to sue on the lessor's covenants. To that the answer was not satisfactory, that it was confined to the covenants "thereinbefore contained," and that there was none on the part of the lessor, for it appears that there was one covenant in a prior part of the deed by the lessor. But this explanation cannot be adopted without altering the words of

the clause, and confining it to the covenants of the lessor, * 617 whereas the words * are general, reserving the remedies to both parties and their representatives.

Therefore, to adopt the construction put by the Court of Exchequer Chamber on the latter part of the clause, and to make sense of it, would require considerable alteration of the language, and that for the purpose of construing this to be a condition precedent, which would render the valuable right of determining a speculative lease practically inoperative; for though the covenants could by possibility be performed, practically speaking they never could be.

It is true that the construction which I think should be put

upon the clause deprives the lessor of the additional security for the performance of the covenants which he would have in the continuance of a long lease, which the lessee could not get rid of without their performance, but still he would have his remedy against the lessee for all those breaches, if the lessee was solvent, and if he was insolvent, the continuance of the term would not be of any advantage.

Construing this instrument according to the ordinary rules, I confess I think it clear that the meaning of the clause in question was, that the payment of arrears and performance of convenance should not be a condition precedent, and consequently, that judgment should be for the defendants below.

August 5.

THE LORD CHANCELLOR having fully stated the nature of the action, the pleadings, the judgment of the Court of Exchequer, and the judgment of the Court which had reversed it, and which was now itself the subject of this writ of error, proceeded thus:

My Lords, from that judgment a writ of error has been brought to your Lordships' House, and it being purely a legal question, your Lordships called in the assistance of the Judges. 618 Eleven Judges attended, and of those eleven Judges, eight were of opinion that the Court of Exchequer Chamber was right, and three thought that the original judgment of the Court of Exchequer was right. The great majority was therefore in favour of the judgment which had been pronounced by the Exchequer Chamber, and which is now brought before your Lordships' House for your determination.

The question turns upon the single point, whether there being a proviso enabling the tenant to determine the lease, the actual performance of all the covenants is a condition precedent to the right to determine the lease. My Lords, at the time the case was brought before the Court of Exchequer, I had the honour to sit as one of the Judges of that Court, and I of course took an interest in the judgment. The ground on which the Court of Exchequer came to the conclusion that the performance of all the covenants was not a condition precedent, was this. The lease contains an infinity of covenants of the most minute description. Amongst others there is a covenant that the tenants "will at all times, from and after the harvest next preceding the expiration or sooner de