cath cousin administratrix of Thomas Howard against b cousin m g Tuesday Nov d  m Geo roll debt on bind give by the defendant on his marriage with condition  that he will permit his intend wife either during the marriage or by will to  dispose of out of his personal estate plea that defendant have not prevent his  wife dispose of that sum replication set forth a particular disposition of the  money by the wife and a request on defendant to pay and a refusal by he  rejoinder that defendant have not any personal estate out of which he can pay  the hold on demurrer that the rejoinder be ill saint because it be a departure  from the plea dly because it will have be no defence if plead at first debt on  bind the defendant pray oyer of the condition which be that in case a marriage  between the defendant and Joan Maynard take effect if the will say b cousin do  and shall permit and suffer the say Joan his intend wife at her own free will  and pleasure at any time within such intermarriage or by her last will in  write attest by two credible witness at her own proper election to dispose and  give the full sum of out of the personal estate of the say b cousin at such  time or time and to such person or person as the say Joan shall think fit to  order and direct the payment of such sum without any manner of contradiction  or denial then the obligation to be void and plead admit the marriage that  from the time of the solemnization thereof he the say b cousin have not  contradict or deny the say Joan his wife at her own free will and pleasure at  any time either within her intermarriage or by her last will in write attest  by two credible witness at her own proper election to dispose and give the  full sum of out of the personal estate of the say b cousin at such time or  time and to such person or person as the say Joan shall think fit to order and  direct the payment of such sum the plaintiff in his replication set forth a  particular appointment by Joan the wife accord to the condition of the bind  and that the defendant have notice of the appointment and be request to pay  the out of his personal estate but that he neglect and refuse to pay the same  the defendant rejoin and admit the disposition but say that at the time of the  make of such disposition and gift of the say by the say Joan or at any time  afterward after the time of sue forth the original writ he bath not have any  personal estate whereby or wherewith to pay the say or any part thereof a  general demurrer this case be argue by Belfield serjeant for the plaintiff and  draper serjeant for the defendant a et per curian myself I Denton and I comens  absent I fortescue aland the rejoinder be not good not only because it be a  departure in plead but also because will what the defendant insist on in his  rejoinder will not have be good if he have insist on it at first in his plea  for be be estopped Vid Shelley v wright sup page a by the condition of his  bind to say that he have not sufficient personal estate so judgement for the  plaintiff