Andrew against BOUGHEY in b r to a declaration for deliver three hundred and  seventythree pound of bad wax upon a assumpsit for four hundred pound of good  wax state half of the price to have be pay in hand the rest to be pay upon a  day agree on plea of twenty pound of wax give and accept in satisfaction be  good but the declaration bad because it be not aver that the day of payment be  not yet come or that it be pass and he have pay the residue of the money in  all case where nothing but amends be to be recover a concord with a execution  thereof be a good plea t James rot b r Lopus cro James bring a action upon the  case against chandler and show that whereas the defendant be a goldsmith and  skill in the nature of precious stone and be possess of a stone which the  defendant assert and assure the say plaintiff to be a true and perfect stone  call a bezoar stone c upon which the plaintiff buy it c there the opinion of  Popham be that if I have any commodity which be damage whether victual or  otherwise and I know they to be so sell they for good and alarm they to be so  a action upon the case lie for the deceit but although they be damage if I  know not that alarm they to be good still no action lie without I warrant they  to be rood f b Com dougl the declaration be that the defendant on such a day  year and at such a place undertake for twenty mark the moiety dyer b er p of  which be in hand pay and the residue agree between they to be pay within a  certain time that he will deliver at such a place within four day after such a  Feast four hundred pound weight of good and merchantable wax but the defendant  not regard his promise and undertake and intend to defraud the plaintiff of  all the profit that he shall have by the say bargain and to draw he into  disgrace and infamy afterward S on such a day which be before the Feast do  deliver to the plaintiff at the say place three hundred and seventythree pound  weight of wax false and deceitful mix with resin and turpentine c as parcel of  the say four hundred pound assert and warrant the say three hundred and  seventythree pound to have be good proper and merchantable when it be not so  and that the say plaintiff confide in the assertion and promise of the say  defendant in his behalf and believe the say wax to have be good c afterward  sell it to one b for twelve pound and afterward the wax become dyer forfeit to  the mayor and sheriff of London accord to a custom whereby the plaintiff be  not only compel to pay back the twelve pound to b but by occasion of the  aforesaid false mix of the say wax be much hurt and bring into great infamy on  that account c to this the defendant protestand that the say three hundred and  seventythree pound which be deliver to the plaintiff be of good and  merchantable wax c for plea say that before the say least at such a place the  plaintiff and defendant do agree that if the defendant will deliver immediate  to the plaintiff one cake of wax weigh twenty pound the defendant will accept  that in recompense as well for the aforesaid three hundred and seventythree  pound as for the residue which be to be deliver and plead this execute in  certain with the acceptance by the plaintiff accord and this c whereupon the  plaintiff demurrer in law because the deceit which be the effect and substance  of the matter ut to say be not answer and the bar seem good enough for the  effect and substance of this action be that the defendant lath not perform his  bargain S with good and merchantable wax accord to his undertake but that it  be corrupt and mix as above and deceitful for which the plaintiff have receive  satisfaction and recompense by the cake and his own acceptance although it be  not of one hundred part of the value of his loss yet by his own accord and  agreement this injury be dispense with and in all action in which nothing but  amends be to be recover in damage there a concord carry into execution be a  good plea and therefore in a writ for forge false deed in h where pl it be  rule that accord be a good plea the law be the same of a award for there be no  difference between a award and a accord except that a award may be plead  although the time of perform it be not yet come but a accord must be execute  and satisfy before the action bring or it be not a bar h for in the former  case the party may have debt upon the award because transit in remember  arbitration c also in attain upon a writ of trespass accord dyer a er p plead  by one of the petit jury between the plaintiff in attain and the defendant be  golden a good plea in e by the better opinion and in all action find upon tort  as trespass conspiracy maintenance and such like where nothing certain be  demand nor to be recover but only damage accord be a good plea and to say that  the accord here do not answer the deceit and the false mixture that be include  in the principal S the wax of which the contract and undertake be and it seem  here also that the deceit be not material for the plaintiff in his declaration  have allege that after the undertake and the contract make and before the  Feast at which the wax shall be deliver S on the three of September c the  defendant make the affirmation and warrant that the wax dyer be good c to  which the plaintiff give faith and credit which be the cause of his deceit for  without a precedent trust a man can be deceive and here the warranty and  promise of the goodness of the wax be void and of no force in law because it  be not make immediate upon the contract but a month after and that be not good  accord to h b and then from first to last if the promise and warranty that the  defendant make on say three day of September be void then be the confidence  and faith give to it by the plaintiff in vain and of no force and then it  follow of course that the plaintiff be not nor can be deceive by the  intendment of the law the deceit therefore be immaterial and needs not to be  answer and it seem for another cause that although the plea be not good still  the plaintiff shall not recover for if it appear to the court that the  plaintiff in any action have not good cause to have his action the court will  never give judgement for he here it appear in the beginning of the count that  for twenty mark the moiety of which be in hand pay and the other moiety be to  be pay at a certain time agree on between they non constat whether that time  be pass or to come at the time of this action bring and if it be pass as it  shall be intend most strong against the plaintiff and the money not pay or  legal tender then the contract and undertake be void for this word for make  the contract conditional as for a marriage to he have I covenant to make a  estate c if the marriage do not take erect I shall be discharge from this  covenant the law be the same of a annuity grant pro council impendend cease to  give counsel and the annuity cease and in e and in e a also if a man grant to  one a way over his land and he for have this way grant he a rend charge if the  one be stop the other be stop so it be in contract as if for a hawk to be  deliver to I on such a day you shall have my horse at Christmas if the hawk be  not deliver at the day you shall not have the action for the horse etcetera  here then the strength of the matter which may be various take and expound  shall be construe against the party who show or plead it S that the time of  the payment be prior to the time of the deliverance or at the very time of the  deliverance or at most within one year afterward and here be almost two year  between the Feast when it be to have be deliver and the time of the action  bring and then the declaration shall have be at a certain time yet to come  agree on between the party c then the declaration will have be good wherefore  c it seem that this last exception be not a good one for if I in consideration  of ten pound to be pay at Michaelmas promise you a horse it be no plea that  the money be not pay and so have it be often adjudge dyer b er p