53 
CONDI 
allowed by our law, and not being performed, the heir 
or executors (hall take advantage of them.. 
Where there are negative and affirmative conditions, 
the pleader mull (hew, not only that he has not broke 
the negative ones, but alfo that he has performed the 
affirmative ones. Hardiv. 322. As to relief againlt the 
breach of conditions, forne lay that in all cafes ol penalty 
or forfeiture that lie in compenlation, equity will relieve; 
for where they can make compenlation, no harm is done. 
So that, although an exprefs time be appointed tor the 
performance of a condition, the judge may, after that day 
is paft, allow a reafonable (pace to the party, making re¬ 
paration for the damage, if it be not very great, nor the 
fubftance of the covenant deltroyed by it. 
The fubftantial diftin&ion which governs the inter¬ 
ference of courts of equity in cafes of conditions broken, 
is not whether the condition be precedent or fubfequent, 
but whether compenlation can or cannot be made ; and 
therefore, where A. conveyed lands to B. upon trull, that 
if C. the fon of A. within fix months after the death ol 
A. Ihtiuld fecure to trullees five hundred pounds for the 
younger children of C. then after Inch fecurity given to 
convey to C. and his heirs; and until the time for giving 
fuch fecurity in trull for the eldeft Ion of C. and in de¬ 
fault of fuch fecurity, to Convey to fuch eldeft fon and his 
heirs; C. died before fuch fecurity given: yet this con¬ 
dition precedent • being only in the nature of a penalty, 
the intent of the trull lhall be regarded, which was to fe¬ 
cure five hundred pounds to the younger children. Wal¬ 
lis <y. Crimes, 1 C. C. 89, &c; But though equity will, 
under feme circumltances. relieve againll the breach of a 
condition precedent; where damages are certain ; yet it 
feems, that they will not where the damages accrued are 
contingent, and cannot be ellimated. Sweets. Anderfon, 
5 Fin. 93. 
4. There are no precife technical words required in a 
deed, to make a Hipulation or condition precedent or fub- 
fequent; neither does it depend on the circumltance whe¬ 
ther the claufe is placed prior or polterior in the deed, fo 
that it operates as a provifo or covenant; for the fame 
words have been conllrued to operate as either the one or 
the other according to the nature of the tranfaflion, per 
Alhhurlt juitice, 1 Term Rep. 645. In 1 Eq. Ab. 108, it is 
faid that conditions precedent are fuch as are annexed to 
eftates, and mull be punctually performed before the ellate 
can veil. A condition fubfequent, is when the ellate is 
executed ; but the continuance of fuch ellate depends on 
the breach or performance of the condition. The two 
molt material points of difculfion refpeCting the dodrine 
and different operations at law, and in equity, of condi¬ 
tions precedent and fubfequent arife, j. From cafes w'here 
conditions are annexed to devifes, making them void on 
the marriage of the devifee without conlent. 2. From 
cafes arifing on the veiling of portions and legacies ma<je 
payable at a future time. 
Conditions precedent are fuch as mull be punctually 
performed before the ellate can veil; but on a condition 
fubfequent, the ellate is immediately executed : yet the 
continuance of fuch ellate dependeth on the breach or 
performance of the condition. Co. Lit. 218. As if I grant, 
that if A. will go to fuch a place, about my bufinefs, that 
he {hall have fuch an ellate, or that he (hall have ten 
pounds, this is a condition precedent. So if I retain a 
man for forty (hillings to go with me to Rome, this is a 
condition precedent, for the duty commences by going 
to Rome. 1 Rol. Abr. 914. So it a man, by will devifes 
certain legacies, and then devifes all the refidue of his 
eltate to his executor, after debts, legacies, &c. paid and 
difeharged, this is a condition precedent; fo that the exe¬ 
cutor cannot have the refidue of the eltate, before the 
debts and legacies are difeharged. Cro.Car. 335. But if 
a man devifes a term to A. and that if his wife iuffers the 
devifee to enjoy it for three years, that (he lhall have all 
his goods as executrix; but if fhe diilurbs A. then he 
makes B. executor, and dies, his wife is executrix pre- 
Vol. V. No. 253. 
T I O N. 
fently ; for though in grants the ellate lhall not veil till 
the condition precedent is performed, yet it is otherwise 
in a will, which mull be guided by the intent of the par¬ 
ties; and this lhall not be conllrued as a condition pre¬ 
cedent, but only as a condition to abridge the power of 
being executrix, if file perform it not. Cro.Eliz.2K). 
Where the one promile is the confideration of the other, 
and where the performance and not the promife is, muft 
be gathered from the' words and nature of the agreement, 
and depends entirely thereupon; for, if there was a poll - 
tive promile that one ffiould releafe his equity of redemp¬ 
tion, and on the other fide, that the other would pay 
feven pounds, then the one might bring his adlion with¬ 
out any averment of performance; but where the agree¬ 
ment is, that the plaintiff fliould releafe his equity of re¬ 
demption, in confideration whereof the defendant was to 
pay him.feven pounds,,fo that the releafe is the confide¬ 
ration, and therefore, being executory, it is a condition 
precedent, which mull be averred. 12 Mod. 455. 
If there be a day let for the payment of money, or doing 
the thing which one promifes, agrees, or covenants to do 
lor another thing, and that day happens to incur before 
the time, the thing for which the promife, agreement, or 
covenant, is made, is to be performed by the tenor of the 
agrfcement; there, though the words be, that the party 
(hall pay the money, or do the thing for fuch a thing, or 
in confideration of fuch a thing; after the day is palt the 
other lhall have a< 5 lion for the money, or other thing, 
though the thing for which the promife, agreement, or 
covenant, was made, be not performed ; for it would be 
repugnant there to make it a condition precedent; and 
therefore they are in that cafe left to mutual remedies, on 
which, by the exprefs words of the agreement, they have 
depended. Per Holt, chief juftice. 11 Mod. 461. 
M. agrees to give A. fo much for the ufe of a coach and 
horfes for a year, and A, agreed further with M. to keep 
the coacli in repair ; it was averred the coach and horles 
were delivered to M. but nothing of the repair; and 
Holt, chief juftice, held upon this evidence, that repair¬ 
ing was not a condition precedent, and therefore need 
not be averred. But if the agreement had been that A. 
had agreed to give M. a coach and horfes for a year, and 
to repair the coach, and that for that M. promifed fo 
much money, then the repairing had been a condition 
precedent neceffary to be averred. Per Holt, chief juftice. 
12 Mod. 503. Condition that A. filial 1 do, and for the 
doing B. lhall pay, is a condition precedent, but time 
fixed for payment will verify the condition. 
It A. makes a leafe for five years to B. upon condition, 
that if B. pays him ten pounds within two years, thac 
then he lhall have a fee-fimple in the lands, and make li¬ 
very and feifin to B. this palfes the freehold immediately, 
and B. has a fee conditional; becaufe if the freehold was 
not to veil in B. till the condition peiformed, it would 
be difficult to determine in whom the freehold lay ; for 
conditions may be inferted in fuch deeds as are per¬ 
fected privately, which might prove greatly prejudicial to 
ftrangers. Co. Lit. 216. But in cafe of a leale for life, 
with fuch a condition, the freehold palfes not before the 
condition performed ; becaufe the livery may prefently 
work upon the freehold. But if a man grants an advow- 
fon, &C. (which lie in grant) for years, upon fuch con¬ 
dition, the grantee lhall have no fee till the condition 
performed. Co. Lit. 217. 
If A. leafes to B. for years, upon condition, that if B. 
pays money to A. or lus heirs, at a day, that B. (halt 
have the fee, and before- the day A. is attainted of trea¬ 
son and executed ; now though the condition became 
impoffible by the a£l and offence of A’, yet B, lhall not 
have a fee, becaufe a precedent condition to increafe an 
ellate mull be performed; and if it becomes impoifible, 
no ellate lhall rife. Co. Lit. 210. Alio in equity, with 
refpeCt to conditions precedent and fubfequent, the pre¬ 
vailing diltincrion feems to be, to relieve againll the 
breach of non-performance; not fo much whether the- 
P condition. 
