The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Smith versus Shelberry.

IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years, and it was agreed between him and the Defendant, that he should assign all his interest therein to the De∣fendant, who proinde should pay 250 l. and that he promised, that in consideration that the Plaintiff at his request had likewise promi∣sed to perform all on his part, that he would also perform all on his part; and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he, viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant, which was written and sealed and woud have delivered it to him, but he refused, and assigns the breach in Non-payment of the Mony, to which the Defendant demurred.

And it was said for him by Baldwin Serjeant, that this was not a good Declaration, because the Assignment ought to precede the Payment, and that it was not a mutual promise, neither was the obtulit se well set forth; but this was a Condition precedent on the Plaintiffs side without the performance where∣of

no Action would lie against the Defendant, Vide 7 Co. Ughtreds Case, fol. 10. b. because it was apparent by the Plaintiffs own shewing, that the Mony was not to be paid till the Assignment made; for the Plaintiff is to assign, and the Defendant pro∣inde, which is as much as to say, pro assignatione, is to pay the Mony: Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff, the Pronoun Pro makes the Contract conditional.

But Pemberton Serjeant for the Plaintiff held the Declara∣tion good, and that it was a mutual promise, and that the Plain∣tiff need not averr the performance; for in such Cases each has remedy against the other; and 'tis as reasonable that the Plaintiff should have his Mony before he make the Assignment, as that the Defendant should have the Term assigned before he paid the Mony: And of that Opinion was the Court, only Iu∣stice Atkins doubted.

Ellis Iustice cited a Case adjudged in the King's Bench which was, as he thought, very hard, viz. An Assignment was made between A. and B. that A. should raise Souldiers, and that B. should trans∣port them beyond Sea, and reciprocal promises were made for the performance (as in this Case) that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them, which is a far stronger Case than this at Barr.

It was agréed here that the Tender and Refusal (had it beén well pleaded) would have amounted to, and have been equivalent with a full performance, but the Plaintiff hath not done as much as he might, for he should have delivered the Indenture to the Defendants use, and then have tendered it. But Iudgment was given for the Plaintiff.

Notes

• Assumpsit upon a mu∣tual pro∣mise.
• Ex parte Def.
• Ex parte Quer.
• Hill & Thorn Postea.
• Stiles Rep. 186 Postea.