case bird against geary Hilary term William and mary roll in assumpsit if the  consideration be executory it ought to be precise allege accord to the  agreement but if the averment agree substantial with the thing to be perform  it will be good after verdict hard action on the case pro eastern quod cum the  plaintiff in easter term in such a year in the king bench have recover against  one t g tam a certain debit six hundred pound how fifty shilling pro misis and  have sue a become facias to the sheriff of m direct and diverse good to the  value of four hundred pound be seize and in execution detain by virtue of the  become facias and the say t g have pay and satisfy all the money due on the  say judgement except two hundred pound for principal and thirtyeight pound  five shilling for interest and cost in obtain the say judgement and levy  execution aforesaid and that one hundred pound of the say two hundred pound be  in trust for one I f and whereas the good and chattel aforesaid in execution  aforesaid and in possession of the bailiff be a certain agreement be have  between the say plaintiff and defendant and the say t g videlicet that the say  defendant shall give to the plaintiff a bind for payment of one hundred pound  of the say two hundred pound and another bind for the other one hundred pound  to the say I f and that the plaintiff shall assign and transfer to the say  defendant all the benefit of the say judgement and execution to his own proper  use without any account to be render to the say plaintiff and shall permit and  do and execute all thing necessary thereunto and that the good aforesaid shall  be sell assign and deliver to the defendant de et ex good et catallis breed ac  coin hence fact shall on request pay the plaintiff all his interest and cost  that the defendant in consideration of the plaintiff promise to perform his  part aver that bind be give in pursuance of the say agreement and that the  plaintiff by write under his hand and seal do assign to the defendant the  judgement and debt shower KB and damage aforesaid and all the benefit thereof  nec non execute breed and make he his attorney without account to receive to  his own use that the defendant from that source thus far tot benefice breed  nee non execute breed ad use suum propr without to some place computation ind  to express grief fact to have et To take back that the interest and cost  amount c see SC Mod SC vent see also show p c accord but the reversal be  contrary to the opinion of all the judge except Ventris chief justice and  atkins chief baron SC lev S Carth see also Com dig in Hilary term will another  ejectment be bring on a new demise by Charles leech SC comy in which there be  another special verdict find beside the fact as above mention that Simon leech  the tenant for life be not compos chin at the time of the seal and delivery of  the say surrender SC Mod and which he have be induce to make by his wife  father SC Carth two point be make first whether the surrender be make by a  person non compos chin be void ab beginning or if not second whether the  lessor of the plaintiff Charles leech claim by virtue of a collateral  remainder and not as heir at law to the devisor can take advantage of his  father lunacy SC Mod and holt chief justice and all the other judge of the  king bench be of opinion that this deed of surrender be absolute void SC ld  ray and that all person may take advantage of it SC Mod for be make by a  person non compos chin it never can have any effect ill law SC Carth except as  against the surrender himself SC comy a writ of error however be bring in the  house of lord where the second question be again elaborate argue but the  judgement be affirm SC show p c SC Mod see gilbert use dougl and Danvers Abr  notorious facts shower KB er p to thirtyeight pound five shilling and be  demand and not pay non assumpsit and verdict for the plaintiff I move in  arrest of judgement that our promise be special and conditional to pay out of  the good and chattel and the money thereby make so that by the agreement we be  to pay nothing till the good be dispose of by we now for any thing that appear  by the declaration the good do remain in our hand and then we be not to pay  for their very averment suppose it videlicet that from such a time hitherto we  have the benefit of the judgement and the execution which suppose a  continuance of the good in our hand and no money raise out of the good and the  raise of the money out of the good be the consideration and that be executory  must be precise allege to be perform but per curian non allocatur because  after a verdict and eyres justice say that the case of marten v bow cro James  be much a strong case than this and yet hold that the thing aver be the same  in substance with the matter of the agreement it be well enough judgement for  the plaintiff