Briscoe plaintiff against knight defendant enter pasch James b r rot a action  of debt upon a bind for performance of covenant Yelverton Cr Brnl in a action  of debt upon a bind for not perform of covenant upon the defendant plea and  the plaintiff breach assign the case appear to be this the defendant for a sum  of nonv borrow of the plaintiff do mortgage his land unto he by a deed poll  and for better and further assurance diverse covenant by deed be make between  they that the plaintiff shall enjoy the land quiet and free from all  encumbrance and in the end of the deed of covenant there be this proviso that  if the defendant shall pay unto I S which be owe to himby the mortgagee that  then it shall be lawful for the defendant to enter into his land and to have  the same again and afterward the defendant do enter into a bind to the  plaintiff condition for the performance of all the article payment covenant  and agreement between they the defendant do not pay the to I S upon this the  plaintiff bring a action of debt against the defendant for nonperformance of  the covenant he suppose this nonpayment of the to I S which be specify in the  proviso to be pay to be a breach of covenant and that this shall be parcel of  the covenant the court be clear of opinion that this proviso be no part of the  covenant Fleming chief justice it be by this proviso provide that if be pay  the that then he shall reenter this payment be not within the covenant and  penalty of the bind enter into for performance of covenant for be may choose  here whether he will pay this or not for if be do pay it be may then reenter  upon the plaintiff and have his land again and then the plaintiff be not to  enjoy the land by his feoff without disturbance as he ought to do by the not  pay of this but the covenant for quiet enjoyment of the same be not break by  this nonpayment for he be not compellable to make this payment but this be a  thing conditional S to be do or not by he if be pay it then to reenter if not  then the plaintiff to enjoy the land accord to the covenant and accord unto  this be the opinion of the whole court clear that the defendant may perform  the covenant here without payment of this and that the nonpayment of this be  no breach of covenant and so the plaintiff for this nonpayment have no cause  of action upon his bind against the defendant and therefore the rule of the  court be quod to express grief nil to take in hand per billani