This statute, as it affects the sale of goods on Sunday, has been already considered (u).

IX. OF ILLEGAL CHARGES ON BENEFICES.

Charges on Benefices.--In order that the livings appointed for ecclesiastical ministers may not by corrupt and indirect dealings be transferred to other uses, it is enacted by the statute 13 Eliz. c. 20 (repealed by 43 Geo. III. c. 84, but revived, as regards this provision, by the 57 Geo. III. c. 99 (x)), "that all chargings of benefices with cure thereafter with any pension or with any profit out of the same to be yielded or taken, other than rents to be reserved upon leases thereafter to be made, according to the meaning of that act, should be utterly void." Under this enactment, a demise by a parson of his benefice expressly to secure an annuity, &c., is void (y). And a composition by creditors with a clergyman, in consideration that his future income may be received by a trustee, and applied in liquidation of his debts, is void (z), even though it provides that a competent stipend for a curate to serve the church shall be reserved (z). But we have seen (a) that the grant of an annuity by a clergyman, and a covenant to pay it, may be good, although the same deed contain a void charge upon his benefice as a collateral security. And where a warrant of attorney is in such case given with a defeasance in the common form as an additional security, it will not be considered that there was necessarily an intention to charge the benefice, and evade the statute; and the court will not interfere to set it aside (b). In such a case the question is, whether, on the face of the document sought to be impeached, there appears to have been an execution for a debt, or a charge on a benefice; if for the former, it is immaterial that, in addition to the security of the warrant of attorney, which per se would be valid, there is a void charge on the benefice, to which such war

(u) See ante, 423, 424, and notes. A contract on Sunday between a farmer and labourer for the hire of the latter is valid; Rex v. Whitmarsh, 7 B. & C. 596; 1 M. & Ry. 452, S. C.

(a) Per Parke, J., in Doed Broughton v. Gully, 9 B. & C. 344; 4 Man. & Ryl. 250; Shaw v. Pritchard, 10 B. & C. 241; 5 Man. & Ryl. 180.

(y) Id.; see cases there cited, and Flight v. Salter, 1 B. & Ad. 673.

(z) Alchin v. Hopkins, 4 M. & Scott, 615; 1 Bing. N. C. 99, S. C., observed upon in Bendry v. Price, 7 Dowl. 755. (a) Ante, 694.

(b) Gibbons v. Hooper, 2 B. & Ad. 734; Britten v. Wait, 3 B. & Ad. 915; Johnson v. Brazier, 1 Ad. & E. 624; 3 Nev. & M. 654.

rant has reference; and the court will not look beyond the warrant of attorney to ascertain the intention of the parties, and will not therefore read affidavits for this purpose (c).

But where the warrant of attorney appears on the face of it to be a charge on a benefice, as where it authorizes the issuing an execution from time to time for the arrears of an annuity as they should become due, and expressly gives power to sequester the living of the incumbent, and take possession so as to be able to apply the profits thereof in satisfaction of the arrears and the future payments of the annuity, it is void, and may be set aside (d).

(c) Bendry v. Price, 7 Dowl, P. C. 753; Bishop v. Hatch, 7 Dowl. 763; Colebrook v. Layton, 4 B. & Ad. 578; 1 N. & M. 374, S. C.

(d) Saltmarshe v. Hewett, 1 Ad. & E. 812; Newland v. Watkin, 9 Bing.

113; 2 M. & Scott, 174; 1 Law Journal N. S. 177, S. C.; sed vide observations of Lord Denman, C. J., in Moore v. Ramsden, 7 Ad. & E. 907; 3 N. & P. 180, S. C.

CHAPTER V.

OF THE USUAL DEFENCES TO ACTIONS UPON SIMPLE CONTRACTS.

1.-Performance of the Contract: and in Excuse thereof, by reason of the Plaintiff's Non-performance of a Condition precedent, or on account of a Failure of Consideration, &c.

2.-Payment.

3.-Accord and Satisfaction.

4.-That a Bill of Exchange, or other negotiable Security, has been taken for the Debt.

5.-Release of the Claim by the Act of the Party, or by Operation of Law.

6.-Another Action pending-Judgment before recovered, &c. 7.-Arbitrament and Award.

8.-A Tender of the Debt.

9.-The Statute of Limitations. 10.-A Set-off.

11.-Infancy of Defendant.

12.-Coverture of Defendant.

13.-Bankruptcy and Certificate.

14.-Discharge under the Insolvent Act.

I. PERFORMANCE OF THE CONTRACT (a); AND IN EXCUSE THEREOF, BY REASON OF THE PLAINTIFF'S NON-PERFORMANCE OF A CONDITION PRECEDENT, &c., OR ON ACCOUNT OF A FAILURE OF CONSIDERATION, &c.

(a) As to performance by payment of money, see post, 744. As to performance of a contract to deliver goods, see ante, 439 to 446. It is now necesssary to plead performance of a contract specially, even in assumpsit.

And under the plea of the general issue, the defendant cannot show any matter in discharge, justification, or excuse of non-performance; Chit. jun. Precedents in Pleading, 372.

1. By whom a Contract is to be performed.

2. How it is to be performed.

3. When the Performance is to take place.

4. Of Notice and Request to Perform. 5. Excuses of Performance in general. 6. Of Rescinding a Contract on Nonperformance, &c.

1. By whom the Contract is to be performed.

It is a rule that the person to be discharged from liability upon a contract by the performance of a certain act, is impliedly bound to do or cause to be done the act which is to exonerate him (b). As, if the creditors of an insolvent agree to receive a composition on their respective debts, to be secured by the promissory notes of the debtor, the payment whereof was to be guaranteed by a third person, it is incumbent on the insolvent to tender such notes to the creditors, in order to bar their original claims; and it is not necessary for the latter to demand them (c), though we have seen that in some cases such tender may be dispensed with (d). And if a party has to pay a sum of money, a mere readiness to do so is insufficient; he is bound to go to the party entitled to receive it, and pay or tender the money, in order to exonerate himself from liability (e), and he cannot plead, without showing some new consideration, a discharge from making such tender or payment (f). And the acceptor of a bill, or maker of a note, is in general liable thereon, although the instrument has not been presented for payment; it being legally incumbent upon the acceptor or maker to discover the holder, and pay it without presentment (g). And a plea by the acceptor of a bill, that after the bill became due he tendered the amount to the plaintiff with interest from the day it became due, is bad on demurrer; though it should seem that if an acceptor goes to the holder's residence on the day the bill becomes due, but cannot find him, but subsequently tenders him the money, a plea of those facts would be good ().

(b) Co. Lit. 211 a, 210 b, 220; Bac. Ab. Conditions; Bro. Ab. Conditions, 174; see Cheney's case, 3 Leon. 260.

(c) Cranley v. Hillary, 2 M. & Sel.

120.

(d) Reay v. White, 1 C. & M. 748; 3 Tyr. 597, S. C.; ante, 689.

(e) Co. Lit. sect. 340; Soward v. Palmer, 2 Moore, 276; Cranley v.

Hillary, 2 M. & Sel. 122.

(f) Cooper v. Phillips, 1 C., M. & R. 649.

(g) Chitty, jun. Bills, 47, 48; Turner v. Hayden, 4 B. & C. 1; 6 Dowl. & R. 5; Ryan & M. 215, S. C.

(h) Poole v. Tumbridge, 2 M. & W. 223, and per Lord Abinger there, S. C. nom. Poole v. Crompton, 5 Dowl. P. C. 468.

Where B. agrees to retake from 4. a public house, provided the owners of the house would accept him (B.) as their tenant, it lies upon A. to show that the owners were willing to accept B. as their tenant (i).

2. How performed.

With regard to the mode of performing a contract, but few observations need be made. It is obvious that an agreement is to be executed according to its legal construction.

When a contract is in the alternative, as that the promiser shall do a certain act" on the 1st of January, or the 1st of February," or shall " pay a sum of money or deliver a horse to the promisee," the right to select the mode of performance is impliedly vested in the promiser (k)." In case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election; as, if a man granteth a rent of 20s., or a robe, to one and to his heirs, the grantor shall have the election, for he is the first agent by payment of the one, or delivery of the other. But if I give unto you one of my horses in my stable,' there you shall have the election, for you shall be the first agent by taking or seizure of one of them (7)." And if A. agree to re-invest a sum in the three per cent. consols, in the name of B., charging the stock at a price not exceeding 68 per cent., or to pay the sum in bank notes on B. giving A. six months' notice, it is in the election of B. whether he will have the money re-invested, or paid in bank notes (m).

Where rent was reserved quarterly or half quarterly, and the landlord for one year received the rent quarterly, this was held to be an election on his part that the rent should be paid quarterly, and that he was not justified in subsequently distraining for a half quarter's rent at all events without notice (n).

(i) Jefferies v. Clare, 2 M. & W. 44. (k) Layton v. Pearce, 1 Doug. 16, per Lord Mansfield, C. J.; see Penny v. Porter, 2 East, 2; 1 Chitty, Pl. 6th ed. 308, 334.

(1) Co. Lit. 145 a. By the French law "the election belongs to the debtor if it have not been expressly accorded to the creditor. A debtor may discharge himself by delivering one of two things promised; but he cannot

compel the creditor to receive one part of one and one part of the other. An obligation is pure and simple, although contracted in an alternative manner, if the one of two things promised could not be the subject of obligation."Code Civil, bk. iii. tit. 3, art. 1190.

(m) Chippendale v. Thurston, 4 C. & P. 98.

(n) Mallam v. Arden, 10 Bing. 299; 3 M. & Scott, 793, S. C.