statute 13 Eliz. c. 20, [repealed by 43 G. 3, c. 84, but revived as regards this provision by the 57 G. 3, c. 99 (0)], that all chargings of benefices with cure, thereafter, with any pension or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 (p). But we have seen (q) 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 (r). And in a late case (s), the court refused to set aside a warrant of attorney given as a collateral security by a clergyman, on purchasing an annuity, although it referred to a bond also given by him to secure the annuity, and the bond contained a reference to the deed of grant, whereby the benefice was illegally charged. The court considered that the reference in the warrant of attorney to the bond, amounted to no more than a description of the bond, its date, the parties to it, and the time at which the annuity was to be paid, and did not incorporate the terms of the deed of grant recited in the bond with the warrant of attorney, so as to make the latter operate as a charge on the benefice. But where the warrant of attorney expressly authorised the issuing a sequestration of the living, the court set aside the warrant, as well as the judgment and sequestration under it (t). (0) Per Parke, J., in Doe d. Broughton v. Gully, 9 B. & C. 344; 4 Man. & Ryl. 250; Shaw v. Pritchard, 10 B. & C. 241; 5 Man. & Ryl. 180. (p) Id., see cases there cited; and Flight v. Salter, 1 B. & Ad. 673. (q) Ante, 538. (r) Gibbons v. Hooper, 2 B. & Ad. 734; Britten v. Wait, 3 B. & Ad. 915. (s) Colebrook v. Layton, 4 B. & Ad. 578; 1 N. & M. 374, S. C. (t) Newland v. Watkin, 9 Bing. 113; 2 M. & Scot. 174, S. C. 562 CHAPTER V. OF THE USUAL DEFENCES TO ACTIONS UPON SIMPLE 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. 1. PERFORMANCE OF THE CONTRACT (a); AND IN EXCUSE (a) As to performance by payment of money, see post, 575. As to per formance of a contract to deliver goods, see ante, 347 to 353. It is now necessary to plead performance of a contract specially, even in assumpsit. 1.-By whom a Contract is to be performed. 3.-When the Performance is to take place. 6.-Of Rescinding a Contract on non-performance, &c. 1. By whom the Contract is to be performed. Ir 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). 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 (d). 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 pay it without presentment (e). 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 (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. 120. Hillary, 2 M. & Sel. (d) Co. Lit. sect. 340; Soward v. Palmer, 2 Moore, 276; Cranley v. Hillary, 2 M. & Sel. 122. (e) Chitty, Jr., Bills, 47,8; Turner v. Hayden, 4 B. & C. 1; 6 Dowl. & R. 5; Ryan & M. 215, S. C. 6 the former (ƒ). "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." (g) And if A. agree to reinvest a sum in the three per cent. consols, in the name of B., charging the stock at a price not exceeding 681 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 reinvested or paid in bank notes (h). 3. When it is to be Performed (i). money When a contract is silent as to the period of performance, the law infers an engagement that it shall be executed within a reasonable time (k); as in the case of a covenant at all times to make further assurance, a reasonable time to levy a fine, advised by counsel. shall be allowed (7). We shall presently observe, a request is sometimes necessary to complete the right of action for the non-fulfilment of the agreement. Where a contract is to be performed within or at the expiration of a month, the presumption of law is that the parties meant a lunar, not a calendar, month; unless there be something in the contract, or some custom in the trade, in reference to which the agreement is made, to rebut the presumption, and show that a calendar month was intended (m). (f) Layton v. Pearce, 1 Doug. 16, per Lord Mansfield, C. J.; see Penny v. Porter, 2 East, 2; 1 Chitty, Pl. 5 ed. 338. (g) 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. 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."— An Code Civil, Bk. 3, Tit. 3, Art. 1190. (i) As to the materiality of time upon a contract for the sale of an estate, in regard to delivery of abstract, &c. see ante, 248. (k) See ante, 426, as to a promise of marriage. (1) Pexpoint v. Thymbelbye, 1 Rol. Ab. 441; 1 Lord Raym. 402. So in the case of a covenant to find security, Peeter v. Carter, 1 Rol. Ab., tit. Condition D., page 438. (m) Lang v. Gale, 1 M. & Sel. 111; Barksdale v. Morgan, 4 Mod. 185; Where a computation is to be made from an act to be done by the party, the day of doing the act shall be included, but not otherwise (n). Where a contract is to be performed within ten days after the date, or day of the date, it seems that the day of the date is to be excluded (0). Where the performance is to take place one month from the date of an agreement, and there is a possible date, it must be executed accordingly; and the month shall not be computed from the making of the contract, although part of the month had elapsed at the time the agreement was entered into. But if the whole of the month had in such case elapsed when the agreement was made, it shall be intended that the parties meant that the act should be done within a month from the actual making of the agreement. And the words "one month from the making hereof," or "from henceforth," in an agreement, impliedly signify one month from the actual execution, not the date of the contract (p). Where an agreement was entered into by an attorney with another person, to form a partnership, to commence absolutely in præsenti, it was held, that no time being expressly fixed for the commencement of the partnership, it began at once, if at all, although the latter party was not at the time admitted as an attorney, and that circumstance invalidated the contract (9). There are instances in which, although a future time for doing an act be appointed by the contract, the party who is to perform it may, even before the arrival of the time, subject himself to responsibility by disabling himself from fulfilling the agreement Where a party has disabled himself from making an estate he has stipulated to convey at a future day, by executing an inconsistent conveyance of that estate, he commits a breach of his stipulation, and is liable to be sued before such day arrives (r). A contract must, in general, be performed strictly on the (q) Williams v. Jones, 7 D. & R. 548; 5 B. & C. 108, S. C. (r) 1 Rol. Ab. 248, pl. 1; 8 Vin. 225; Co. Lit. 221 b; per Bayley, J., in Ford v. Tiley, 6 B. & C. 327, 328; 9 D. & R. 448; which is a strong case upon the above doctrine. An agreement to grant a future lease was there held under the circumstances to be broken by joining trustees in a lease to another; although an existing lease had not expired. |