To deliver a horse.

Tender and refusal.

To pay money.

Acceptance.

trust, shall grant me a rent-charge, or release their
right to me before such a day, and there be three
feoffees or lessees, and two of them only do grant
this rent or make this release; this is no good
performance of the condition. [It is requisite
that all of them should join.]

If the condition be, that the obligor shall pur- Dyer, 15.
chase and procure to me and my heirs a rent of 51.
per annum, and a stranger hath such a rent out of
my land, and he doth get him to release this to

me; this is a good performance of the condition. Fitz. Barre, 77
And if one be bound with condition to grant me
the rent and farm of such a mill before Michael-
mas, to be had and perceived until I be paid 107.
and before that time he lease the mill to me at a
rent, and then suffer me to detain so much of the
rent; it seems this is a good performance of the
condition.

If the condition be to deliver me a horse, and Co. super Lit.
the obligor tender the horse unto me, and I refuse 207.
him; hereby the condition is performed; and so in
all such like cases where the obligor is to do any
collateral thing, as stand to an award, or the like;
if the obligor offer to do it, and the obligee refuse,
the condition is performed, and the obligation dis-
charged for ever.

If the condition be, to pay money at a day Dyer, 17. certain, and the obligor pay a little before night, Bro. Condition, super Lit. 202. time enough for the receiver to see to number 145. his money by day-light; this is a good performance of the condition. And if the condition be to pay money by or before a day, payment in the last instance [read, instant] of the day before, is a sufficient performance of the condition (19).

21 Ed. 3. 13.

If the condition be, to pay me a sum of money Perk. Sect. 748. at a day certain, and the obligor pay me less money 34 H. 6.17. before the day, or all the money before or at the Co. 5. 117. 9. day, or give me something else before or at the day of payment in lieu thereof, or pay me all

79

Bro. Obl. 64.

(19) And if the money was not paid at the day, the bond became forfeited, and the whole penalty became recoverable at law: and the obligor was obliged to have recourse to a court of equity, which would restrain the obligee from taking more than in conscience he ought, i. e. his principal, interest, and costs. The stat. of 4 Ann. c. 26, § 13, affords the like assistance to obligors, as the 7 Geo. 2, c. 20, (mentioned before in note 55, page 140,) does to mortgagors; for it enacts, that if at any time, pending an action on bond with a penalty, the defendant shall bring into court the principal, interest, and costs, the money so brought into court shall be in full discharge of the said bond, and, the court may give judgment for the defendant accordingly.

Trin. 36 Eliz.

Adjudged, 7 Eliz.

Dyer, 18.

18 Ed. 4.

Co. super Lit. 208, 209.

27 H. 8. 10.

*

the money or a lesser sum at the day appointed,
but in another place, and not the place mentioned
in the condition, and I accept thereof; in all these
cases, the condition is well performed, [and accord
and satisfaction may be pleaded. Com. Dig. Con-
dition (L. 2.)] But if a stranger to the condition
do so, and I accept thereof; this is no good per-
formance of the condition, as hath been adjudged.
And if the obligor pay less than the whole money
at the day of payment, and the obligee accept
thereof; this is no good performance of the condi-
tion. And if the thing to be done be a collateral
thing, as to account or the like, and the obligor
give unto the obligee money, or a horse in lieu
thereof, and the obligee accept it; this is no good
performance of the condition. And if the obli- *P. 386.
gor pay the money to the obligee after the day of
payment; this is no performance of the condition,
but the obligation is forfeit, and the money paid
shall go in part towards the forfeiture; and yet, in
this case, the defendant at this day, being sued upon
this obligation, doth usually adventure to plead
conditions performed, and give this special matter
in evidence to the jury, who for the most part doth
find against the obligee. [Bull. Nisi Prius, 174.]
And yet, if the condition be, to pay me money at
a day certain, or to pay another money at a day
certain, and the obligor pay me or the stranger at
several times before the day, and I, or the stranger,
accept thereof; this is a good performance of the
condition. But if the obligee do only promise to Tender and
accept of a horse for his money at the time of
payment, and when the time of payment comes,
and a tender of the horse is made to him, he doth
refuse him; this tender is not a sufficient perform-
ance of the condition.

If the condition be, to pay money at a day and place certain, and the obligor tender it at the time Perk. Sect. 784. and place, and the obligee is not ready to receive it; or, being ready, doth refuse to receive it; this is a good performance of the condition to save the forfeiture of the obligation; and yet, if the obligor be afterwards sued for this money, he must say in his pleading, that he is still ready to pay it, [this plea is called tout temps prist,] and he must tender it in court. But if one be bound by a single obligation to pay money, and after, at the same or

refusal.

some other time, he hath a defeasance from the
obligee, that upon payment of a lesser sum the
obligation shall be void, and the obligee refuse the
money when the same is tendered, at the time
when, by the defeasance, it is to be paid; in this
case, the obligor is not bound to tender the money
in court, neither hath the obligee any remedy for it.
If the condition be, to pay me money at a 41 Ed. 3. 25-
day and place certain, and the obligor doth tender
it to me the same day in another place, this is no
performance of the condition; and therefore, in
that case, I may refuse it.

Perk. Sect. 748. 27.6.6.

If the condition be, to pay money between two Dyer, 17. days; payment of the money upon either of those days, is not a good performance of the condition; but the payment must be between the two days. If the condition be, to pay me money at a day certain, and I bid the obligor pay the money to one that I do owe so much more unto; or I bid him lay out the money for me; or I bid him keep it for such a debt I owe unto him; and he do so, and I accept hereof; it seems this is a good performance of the condition, [being in law a payment.]

If the condition be to pay me money, and I *P. 387. appoint another* to receive it, and the obligor pay it unto him; this is a good performance of the condition; [for a payment to my agent is, in law, a payment to me.]

Acceptance.

If the condition be, that a stranger shall pay to the obligee 10l. and the obligee accept a horse for it; this is a good performance of the condition. But if the condition be, that one stranger shall pay to another stranger 107. and the one doth give, and the other take, a horse in lieu of this [sum]; this is no[t a] good performance of the condition.

Fitz. Barre, 43.

Co. super Lit.

208, 209.

Dyer, 56.

Coin.

Bridgman, and

If the condition be, to pay me 201. of lawful New Terms of English money, and the obligor pay me in Spanish the Law, tit. or in any other money current in this realm; this is a good performance of the condition. But Per Just. payment in farthings is no[t a] good payment (20). [The proclamation for copper money, restrains its circulation or currency, as a legal tender, within a given amount.] If the condition be, to pay me Terms of the 201. and the obligor pay me some of the 207. Law, idem.

Curia in the
Marches of

Wales, 8.

(20) See accordingly Wood's Inst. 292. Money of England must be either of gold or silver, 2 Inst. 577. [At this day, it is apprehended, gold only is the standard coin of the country.]

22 Ed. 4. 2.

22 Ed. 4. 25.

22 Ed. 4. 40.

Dyer, 255.

17 Ed. 4. 3.

758.

2 Ed. 4. 3.

in counterfeit pieces, which I, not perceiving at the
time, do put up and accept, but after, upon a re-
view, I do perceive some of them to be naught,
and thereupon I do send it back to him again; in
this case it seems the condition is well performed,
[unless the fraud, in payment of counterfeit pieces,
could be clearly proved,] and therefore the sending
back of the money again will not cause a breach
afterwards.

If the condition be, that I shall stand to the To stand to an award of I. S. and he doth award me to pay 20l. award. to W. S. by a day, and at the day I do tender him the 207. but he doth refuse it; in this case I have sufficiently performed the condition, and the obligation is saved.

If the condition be, that I shall stand to the award of I. S. and he award that I shall enter a retraxit in a suit depending between me and the other party, and I do not so, but am nonsuit, or do discontinue my suit; this is no[t a] good performance of the condition. [The retraxit would have saved the expence of further proceedings.]

lease.

If the condition be, that the obligor shall come To show a resuch a day to such a place, and show me a release, and he doth come to the place the latter part of the day, and doth stay there until the light of the day be gone, ready to show his release, but I come not thither; this is a good performance of the condition; [for the fault is in the obligee.]

If one make a lease of land to me, and bind For quiet enjoyhimself in an obligation, with condition, to suffer ing. me quietly to enjoy the land without the let of him or any other; in this case, if neither he himself, nor any other by his incitement, do disturb me, the condition is performed; and if a stranger that hath title, do enter without his procurement or occasion, this is no breach of the condition. [For such general covenants extend to lawful evictions only; i. e. evictions by title, and evictions by the covenantor himself, with or without title.]

Perk. Sect. 760. If the condition be, to appear in the King's Bench To appear. such a day, to answer I. S. and at the day the obligor doth appear, [which is the only fact required,] but the plaintiff is essoigned, so that the defendant cannot answer him; or the suit is discontinued by the demise of the king, [now altered

by the statute law,] before the day of appearance;
in these cases, the condition is performed and the
obligation saved. But if the obligor in this case,
when he doth appear, doth not cause his appear-
ance to be entered of record, the obligation is for-
feit; [since the record is the only evidence that the
party was before the court.]

If the condition be, to appear coram domino rege, 8 H. 4. 6. and the obligor appear before the king's person; this is no performance of the condition. [The appearance must be before the king in his court of King's Bench; i. e. before the judges who there` represent the king.] And if the condition be, to appear coram justiciariis domini regis, and the obligor appear before them out of court; this is no performance of the condition; [for the words only, and not the sense and true import of the condition, are performed.]

10 H. 6. 16.

If the condition be, that a stranger shall make Co. super Lit. an obligation to the obligee, and the stranger ten- 208, 209. der it, and the obligee refuse it; this is a good 27 H. 8. 1. performance of the condition: but if the condition be, that the obligor shall make an obligation to a stranger, and the obligor tender it, and the stranger refuse it; this is no performance of the condition. [So of a feoffment, &c. (supra, 383); for there is in law, an undertaking to obtain consent, &c.]

If the condition be, that the obligor shall marry Perk. Sect. 756, the daughter of the obligee by a day, and he doth 4H.7. 3tender himself, and she doth refuse; in this case

the obligation is forfeit, notwithstanding this tender
and refusal, [and for the same reason.]

If the condition be, to deliver the key of a house, Dyer, 219.
and the quiet possession to I. S. to the use of the
obligee, and the obligor (the house being rid, [empty]
and every one out of the house, and the door locked,)
doth deliver the key to I. S.; it seems this is no
good performance of the condition, but that I. S.
or the obligee, or his deputy, ought to come and
receive the possession. [Query, the good sense of
this point.] See more in Condition, at numb. 9, and
Covenants, 6. (21.)

(21) See accordingly verbatim in 1 Wood, 776 to 779; and more amply, as to the performance or the breach of a condition in obligations, in Bac. Abr. Obligations (F.1.); Vin. Abr. Condition (Q. a.)