It is a good defence to an action on a contract, that the obligation to perform the act required, was dependent upon some other thing which the other party was to do, and has failed to do. And if, before the one party has done anything, it is ascertained that the other party will not be able to do that which he has undertaken to do, this will be a sufficient reason why the first party makes it lawful, the act does not repeal the covenant.' In 1 Salkeld, 198, where the same case is reported, the proposition is thus stated: 'Where H. covenants not to do an act or thing which was lawful to do, and an act of parliament comes after and compels him to do it, the statute repeals the covenant. So if H. covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed. But if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful to do it, such act of parliament does not repeal the covenant.' And see Bennett v. Woolfolk, 16 Ga. 218. As to the dissolution of contracts by a declaration of war, see Reid v. Hoskins, 4 Ellis & B. 979, 80 Eng. L. & Eq. 406. See also same case, 5 Ellis & B. 729, 84 Eng. L. A Eq. 51, affirmed 6 Ellis & B. 958, 38 Eng. L. & Eq. 130.

(m) Thus in Baylies v. Fettyplace, 7 Mass. 325, it was held, that a law of the United States laying an embargo for an unlimited time, and afterwards repealed, did not extinguish a promise to deliver debentures, but operated as a suspension only during the continuance of the law. So in Hadley v. Clarke, 8 T. R. 259, where the defendants contracted to carry the plaintiff's goods from Liverpool to Leghorn, and on the vessel's arrival at Falmouth in the course of her voyage, an embargo was laid on her "until the further order of council;" it was held, that such embargo only suspended the execution, but did not dissolve the contract between the parties; and that even after two years, when the embargo was taken off, the defendants were answerable to the plaintiff in damages for the non-performance of their contract.

If one bound to perform a future act, before the time for doing it declares his intention not to do it, this is no breach of his contract;(p)2 but if his declaration be not withdrawn when the

(n) Caines v. Smith, 15 H. & W. 180, where defendant had promised to marry plaintiff, but married another woman. To an action for breach of promise, a plea by defendant that he had never been requested by the plaintiff to perform his contract was held ill. Johnston v. Caulkins, 1 Johns. Cas. 116, where in a similar action it was held, that if the defendant has absconded, the plaintiff need not show an offer to marry him. And see other instances of the same principle in Short v. Stone, 8 Q. B. 358; Lovelock v. Franklyn, id. 371; Ford v. Tiley, 6 B. & C. 325; Bowdell v. Parsons, 10 East, 359; Tewksbury v. O'Connell, 21 Cal. 60.

(o) See ante, p. *672, n. (h).

(p) Phillpotts v. Evans, 5M. & W. 477; Ripley v. M'Clure, 4 Exch. 345; Leigh v. Paterson, 2 J. B. Moore, 588. This principle, however, is drawn in question by the recent case of Hochster v. De la Tour, 2 Ellis & B. 678, 20 Eng. L. & Eq. 157, where it was held, that if A engages to employ B in his service, the term to commence at a future day, and before that day A changes his mind and refuses to employ him, this is a breach of the contract, and B may have his action for such breach immediately and is not bound to wait until the day the service was to commence. A in such case has no right to a locus paenitentia. See the case fully stated, ante, p. n. (c). So it was held in Cort v. Ambergate, etc. Railway Co. 17 Q. B. 127, 6 Eng. L. & Eq. 280, that where there is an executory contract for the manufac taring and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, time comes for the act to be done, it constitutes a sufficient excuse for the default of the other party. In all cases whatever, a promisor will be discharged from all liability, when the non-performance of his obligation is caused by the act, or the fault, of the other contracting party. (q) l subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss." See also Roper v. Johnson, L. R. 8 C. P. 167, to the effect that Hochster v. De la Tour, supra, has been distinctly recognised in many subsequent cases, and must now be assumed to be law. And where one in October declared his intention not to carry out an engagement to marry "in the fall," no day being fixed, Burtis v. Thompson, 42 N. Y. 246; where a person engaged to marry one, married another, Sheahan v. Barry, 27 Mich. 217, it was held in each instance that the party aggrieved might sue at once. See Holloway v. Griffith, 32 Ia. 409. In Daniels v. Newton, 114 Mass. 530, Wells, J., reviews elaborately all the authorities, and, disapproving of Hochster v. De la Tour, and Frost v. Knight, supra, arrives at the conclusion that "an action for the breach of a written agreement to purchase land, brought before the expiration of the time given for the purchase, cannot be maintained by proof of an absolute refusal on the defendant's part ever to purchase." He says, p. 539: "Until the plaintiff has either suffered loss or wrong in respect of that which has already vested in him in right, or has been deprived of or been prevented from acquiring that which he is entitled to have or demand, he has no ground on which to seek a remedy by way of reparation. Actual injury and not anticipated injury is the ground of legal recovery. The plaintiff's rights are invaded by repudiation of the contract only when it produces the effect of non-performance, or prevents him from entering upon or completing performance on his part, at a time when and in the manner in which he is entitled to perform it or to have it performed." Parker v. Russell, 133 Mass. 74, however, decides that, on the breach of a contract for life support, the person to be supported may treat the contract at his election as absolutely broken, and recover damages at once for its entire value. Field, J., distinguishes Daniels v. Newton, as deciding that "an absolute refusal to perform a contract before the performance is due by the terms of the contract is not a present breach of the contract for which any action can be maintained ;" and as not deciding that "an absolute refusal to perform a contract after the time and under the conditions in which the plaintiff is entitled to require performance is not a breach of the contract, even although the contract is by its terms to continue in the future."