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Bragg against Nightingall:

Mich. 24 Car. Banc. Reg.

Trin. 24 Car. rot. 601.

BRagg brought an Action of Covenant against Nightingall upon an In∣denture.* 1.1 The Defendant demurs to the Declaration, The Case was this. The Plaintiff let by Indenture certain houses for divers years to the Defendant, and covenanted with him to repair the houses by such a day expressed in the Indenture. The Defendant by the same Indenture cove∣nanted with the Plaintiff, that from the time that the Plaintiff was to re∣pair

the houses, unto the end of the Term for which they were demised, he would well & sufficiently repair and leave them so repaired at the end of the Term; for not performing of this Covenant, on the Defendants part the Plaintiff brought his Action. The cause shewed for the demurrer to the De∣claration was, that the Plaintiff had not shewed that he on his part had repai∣red the houses according to his Covenant, and so the Defendant supposed he was not bound to repair, because he was to repair from the time the Plaintiff had repaired them, and not before, and so there is no cause of Action. Af∣ter divers motions Roll chief Iustice said, That here was a reciprocal Co∣venant to be performed on each part,* 1.2 and although one do not perform the Covenant on his part, this doth not excuse the other party, but he is tyed to perform his Covenant neverthelesse, and if he do not an Action lyes a∣gainst him, and he may bring his Action also against the other that first broke his Covenant, and therefore the Action lyes here against the Defen∣dant, and so the demurrer is not good upon the cause shewed. But if this were not a reciprocal Covenant the Law would be otherwise, and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good, for that it ap∣pears that it was the intent of both partyes that the Plaintiff should first repair, and after that the Defendant should keep the houses in repair. The Court would advise.

Notes

• * 1.1

  Demurrer to a Declaration in an action of covenant.
• * 1.2

  Covenant