By the Court, Sutherland. J.
Both pleas are unquestionably bad. Each of the counts in the declaration assign two breaches: 1. The neglect oí the defendant to pay the Baldwin notes; and 2, His neglect or refusal to pay the first instalment of $233. The second plea takes no notice whatever of the second breach; it is in terms confined to the said supposed breach of covenant in the said plaintiffs’ declarationj^rsi assigned. Mr. Ghitty lays down the rule that if a plea profess to answer only a part of the count, and is in truth but an answer to part, the plaintiff cannot demur, but must take his judgment by nil dicit for the part unanswered; and if he demur or plead over, it amounts to a discontinuance, and he is supported in this position by Mr. Sergeant Williams, in a note to Manchester v. Vale, 1 Saund, 28, n. 3. But this court, in Sterling v. Sherwood, 20 Johns. R. 204, upon an examination of the authorities referred to by Mr. Chitty and Sergeant Williams, came to the conclusion that they did not support the proposition laid down by *618those writers, and accordingly gave judgment in that case for ^ plaintiff on demurrer" to the defendant’s second and third pleas, on the ground that they answered only a part of the libellous matter charged in the declaration. The court repose themselves upon the opinion of Willes, Ch. J. in Bullythrope v. Turner, Willes, 475, 80, and Yelv. 38, Cro. Jac, 27, Cro. Eliz. 434, 2 Ventris, 193, and 3 Johns. Cas. 205. This question was again before this court in HicocJc v. Coates, 2 Wendell, 419 where the case in 20 Johns. R. was considered as establishing the rule, and was accordingly .followed. That is now the established law in this court.
The third plea may perhaps be considered asprofessing to answer all the breaches assigned in the declaration, but in truth only answers the first; that this is groundjof demurrer, never has been questioned. 1 Chitty, 509, 10. 1 Saund. 28, notes 1. 2, 3. The matter contained in this plea, if well pleaded, is no defence at law. It is substantially that the defendant’s covenant was obtained by the false and fraudulent representations of the plaintiffs in relation to a particular fact. It is well settled that fraud as to the consideration cannot be set up at law to avoid an agreement under seal, but only fraud as to the execution. 2 Johns. R. 177. 13 id. 430. 5 Cowen, 508, 9, 20 Johns. R. 130. Both pleas are .therefore bad,
But it is said the declaration is bad, and that on that ground the defendant must have judgment. It is contended that the .covenants in this case are dependent, and that the plaintiffs were bound to prefer performance on their part, or an offer to perform, before they can recover from the defendants. Oyer of the articles of agreement is not given, but the declaration states that the defendant agreed to pay by the first Monday of May, 1828, two certain notes, made by the plaintiffs, payable to Harvey Baldwin, describing them particularly, and also at subsequent periods several other sums in different instalments ; and that the said plaintiffs, by the said articles of agreement, agreed, upon thepayment of the said two notes as aforesaid to assign to the said defendant the surveyor-general’s certificates; die. If the payment of the notes and the assignment of the certificates Were tb take place at the same time, the covenants *619are dependent, and neither party can recover from the other without averring performance on his part. It becomes a condition precedent, and must be distinctly and specially averred. A general averment is not suficient. Sugden Vend. 162, 3. 5 H. Black, 123. 2 Johns. R 207. 10 id. 266. 12 id. 212. 5 id. 181. 20 id. 14, 24, 130. 6 Cowen, 1. 5 Wendell, 496. But in Northrup v. Northrup, 6 Cowen, 296, the court held, upon covenants precisely in principle like those in the case at bar, that they were independent. The defendant in that case had covenanted to pay certain rent due and in arrear to one Tomlinson, and all which should become due on the 25th March, 1825, the whole to be paid on that day; and the plaintiff covenanted that on the defendant’s so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage. The chief justice said that the payment of the money to Tomlinson on the day specified, was clearly a condition precedent; that the performance by the plaintiff of his part of the agreement was not necessarily simultaneous, but was naturally to be subsequent, and that a general averment of his readiness to perform was all that was necessary. I apprehend the conclusion of the chief justice, that the performance by the plaintiff of his part of the- agreement was naturally to be subsequent to the performance of the defendant, must have rested principally upon the circumstance, that the payment to be made by the defendant was to be made to a third person, and not to the plaintiff himself, and that he was of course bound to produce evidence of it, which presupposed the act to have been done before the plaintiff was bound to perform ; that circumstance also exists in this case, arid is entitled to the same weight here that was given to it in Northrup v. Northrup. Independently of that circumstance, it appears to me that neither that nor this case can be distinguished from' many of those referred to, in which the covenants were held to be dependent; but the inquiry always is, what was the intention and understanding of the parties to be derived from their contract ? If they intended that the one act should precede the other, the covenants are independent. Such probably is the legal construction of the covenants in this case. The declaration therefore is good.
*620Neither of the pleas shew that the plaintiff was incapacitated to procure dr make the assignment of the surveyor-general’s certificates. I am, however, inclined to the opinion that the second plea would have been a good answer to the first breach, if it had averred that Baldwin was the holder and owner of the notes when the defendant offered to pay them. The breach is, that the defendant did not pay two certain notes made by the plaintiffs, payable to Harvey Baldwin. The plea is, that the defendant did offer and tender payment to Baldwin on the day, which he refused to accept. If Baldwin was the holder and owner of the notes at that time, what more could the defendant have done 1 I do not, however, intend to express a definitive opinion upon this point..
The plaintiffs must have judgment on the demurrers to the defendant’s second and third pleas, on the grounds already stated, with leavé to the defendant to amend on payment of costs.