clayton versus Kynaston hill will B R Intr Trin will B R rot ld raym S c one  deed not to be construe as a defeazance of another without necessity vide cro  car cro James lev post S C salk Cas B R holt Clayton the executor of Clayton  the executor of Wintershall bring covenant against Kynaston upon article and  declare as on article make between killigrew and the say Kynaston and other ex  One part and Wintershall ex alteran part wherein it be covenant that if  Wintershall shall be mind to give over act play and shall give notice in write  three month before be leave off that then three month after such notice in  write Wintershall shall be allow for every act day S per day and that after  the death of Wintershall l shall be pay to his executor within three month  provide such notice shall not be give but in a act week and for breach assign  that the l be not pay within three month after Wintershalls death the  defendant plead that at the same time another deed be make between the say  Wintershall of the one part and the say Kynaston of the other part wherein be  contain the same agreement and then it be far covenant by Wintershall in the  same deed that in case he give notice as aforesaid then the say Kynaston shall  be discharge of all debt and be indemnified and save harmless from all  agreement or security at any time before make or hereafter to be enter into  then he aver notice be give and that three month elapse c and so rely upon  this as a defeazance to this there be a demurrer Salkeld saint it be urge for  the defendant that this be a defeazance for whatever the defendant lose in  this action will be recover against he on his covenant which be but circuity  of action vide and more pl sand one deed a defeazance to another make at the  same time with it vide Inst rebutter find on the same reason the court agree  that if a be bind to b and then b recite this bind covenant to save he  harmless this be a absolute defeazance and if it be to save he harmless on a  contingency it be a conditional defeazance because it have a express relation  to the deed but in the principal case there be not a relation between the deed  but on the contrary the plaintiff deed be only to indemnify against all  covenant heretofore make or hereafter to be make there be therefore no  necessity to construe the defendant deed to be void and useless as soon as  make or that one deed have destroy the other which be make at the same time  with it or that Kynaston may play fast and lose at his pleasure also the court  agree that where two be joint and several bind in a bind a release to one  discharge the other and in such case if the joint remedy be go the several be  go too and that in the case at bar the joint remedy be lose but the chief  justice who deliver the opinion of the rest say they do not determine that on  covenant where the joint remedy fail there can not be a several remedy dly it  be object to the declaration that he declare of a deed make between Kynaston  of the one part and Wintershall of the other and do not say predict  Wintershall for want of which he do not appear to be the same person this  exception be not much heed case cite pro and con be Yelv cro Bridgm dyer hard  Salkeld er p dly it be object to the plea that the notice be not say to be  give in a act week and though it be urge to be by way of proviso and therefore  ought to come on the other side   cro   Poph Plo Leon pl and that the plea say  he have notice secundum form execution a joint yet holt c j answer that where  the proviso go by way of defeazance it must be plead by he that take advantage  of it but this be not so but alter the sense of the covenant by explain and  tie up the notice to a particular time which will not have be understand on  the general covenant by which mean it become a part of the covenant so that  you must plead accord and secundum form effeclum a joint be only matter of  conclusion which can serve without premise and upon this single point a  judgement be give for the plaintiff a quaere for by the report in ld raym and  come semble by this report the opinion of the court be with the plaintiff on  the first point et vide infra Salkeld