case cage against acton discuss and follow milbourn v Ewart t r dictum  disapprove honner v Morton Russ approve Fitzgerald v Fitzgerald l r p c Moo p  c n S a bind give by a man to a woman in consideration of their intermarriage  condition that if she survive he he will leave her such a sum of money be only  suspend but not extinguish by the intermarriage and such a bind and no asset  ultra may be plead in bar to a action against the obligor as administratrix  for rend arrear on a demise by deed for they be in equal degree S c Bac Abr S  c Carth S c salk S c lily Ent S c holt S c ld ray S c comy Rep debt against  the defendant as administratrix to her husband for arrear of rend upon a lease  make to he in his lifetime the defendant plead that before the intermarriage  between he and her there be a bind enter into by he to her to pay so much  money to her her executor administrator or assign upon condition that in case  she shall survive he he will leave her worth so much money that he have not  perform the condition that she have not asset above two hundred pound which be  a less sum than that which he have bind himself to pay her and that she retain  that in part upon which the plaintiff demurrer general the point in this case  be two first whether debt upon a bind be of as high a nature as rend so that a  executor may give it preference of payment second whether the subsequent  marriage be a release of the bind this case be argue at the bar twice first by  Brotherick for the plaintiff and Carthew for the defendant and afterward by  sergeant levinz for the defendant and for the plaintiff but the court  videlicet holt chief justice Rokeby Turton and gold justice agree clear that  rend whether upon a parole or lease by deed be in equal degree to bind and  that the executor may prefer who he please but the second point be more  doubtful Brotherick for the plaintiff say and lie it down for a rule that if a  personal action or duty be once extinct it ever be so and therefore they can  be release upon a condition subsequent Ro ab and though here this duty be not  to loosen but in going to be and on a contingency videlicet if the wife  survive yet the lie be present and if this be a bind by a stranger to the wife  the husband after marriage may have release and it be hard then that he shall  have power to e more S c   f see fonnereau v fonnereau dougl and do v Brabant  brown Chan case Andrews v Fulham stram modern report er p release to another  and not to himself and the discharge depend upon the duty and not on the  remedy for it and the husband have a more absolute power on a duty to his wife  than on a action for it for if a bind be make to a wife before modern report  marriage the husband can sue for it without the wife yet he may release it  without her and that every obligation create a present duty appear by the form  of plead and obligation and condition be not one deed but the one be in a  manner subsequent to the other and therefore when you crave oyer of the  obligation the condition be not set forth but you must crave oyer thereof  separate cro   be in point for if I covenant to feoff you before Michaelmas a  release of all action before Michaelmas discharge not the covenant but if I  bind myself in a bind for performance thereof there be a immediate duty  releasable immediate but if marriage do not release it in our case the  consequence will be absurd that there shall be a immediate duty unreleasable  during the coverture leo if a writ be sue out before the day of payment and  that day incur before judgement the writ be good because there be a duty at  the time of the purchase of the writ and he say Yelv and hob be rather for he  than against he and that Godbolt hut and Noy come near to the case and he  quote roll Rep in point for he Carthew agree that regular there be in every  obligation a present duty but that he say be to be understand when the to  loosen be to be on a certain fix time and not upon a contingency for then he  will have it a mere possibility which in its nature be not releasable and he  say that whether the condition of all obligation be precedent or subsquent  both make but one deed as if a covenant with b to pay b ten pound if b do such  a thing and b bring covenant and plead only what be for his purpose the rest  must come of the other side and one can crave oyer of nothing but what be part  of the same deed for if there be a defeasance in another deed you must produce  it in court which prove the condition and obligation to be but one deed and  where there be a present duty marriage be a release of it otherwise when the  duty be to arise upon a contingency as here a promise if it be put in write be  a covenant indeed a bind do sound in duty and therefore this write deserve  more the name of a covenant than that of bind and be seem to rely much on the  case of Lupart v Hoblin a afterward in Michaelmas term in the eleven year of  William the three Rokeby justice be dead the court argue seriatim gold and  Turton justice for the defendant that the marriage do not release the bind  holt chief justice all man contra and that it be clear a release modern report  gold justice marriage clear be a release of all bind and specialty whether  contingent or not which by any possibility may become Payable during the  marriage because husband and wife be but one person in law and so there can be  no payment between they and also because the suit be once suspend and then it  shall ever be so Henry pl Henry Inst die but the great objection be how this  bind shall subsist there be now nobody to who it be due and every obligation  be debt is owed in Prsenti and a husband owe a thing to his wife be owe a  thing to himself which be absurd to this I answer that the law very often make  a fiction for the preservation of a right and a suspension of a personal duty  be not always a extinguishment Litt sect this be a necessary and prudent  provision in case of survivorship and it be hard that marriage shall destroy  that whereof it be the cause the rule be that modus et assembly vincu law the  law by its own operation will do no wrong and sure it will be a great wrong to  defeat the wife of her provision Inst   if a feme executrix take debtor to  husband it be no release of the debt because it will be a devastavit and here  the law will interpose and take away the inconsistency of the debtor and  debtee between husband and wife by take it into its own custody and he quote  the case of Dorchester v web b a man obligor marry a woman obligee a side b  cro car S c Jones S c Hutton S c Godolph see also the yearbook Henry f b  modern report er p who be afterward divorce the debt revive and the man shall  be sue by the woman again and though here there be a debt is owed in prsenti  yet it be a qualify debt is owed and be no more than a provision in case of  chattel which the law will make in case of inheritance in the case of smith v  Stafford c though it be urge to be a present promise and lie releasable by the  wife yet judgement be that such promise be not release by the marriage against  the opinion of Hobart so here the justice of the law will preserve this debt  for a honest intent in Noy it be say it will be otherwise in a bind quod to be  concession but that be not say in any of the other book that report it and I  see no difference the law will not work a release contrary to the intent of  the party and in Litt report it be say that marriage be only a suspension  Turton justice this bind be not enter into for any present debt or duty if it  have it have be extinguish by the marriage for as bind give by other to the  wife be by marriage give to and releasable by the husband so modern report  bind which she have from the husband be vest in he and so release by act in  law Inst die Ro ab   more cro car c and it be a rule in law that release in  law be more mild take against the releaser than release in deed Inst and it be  unnatural that marriage shall be a release of that which be make by reason of  the marriage if a debtee make a debtor executor it be a release of the duty  but if a feme executrix take her debtor to husband that be only a suspension  of the action and the duty remain blow hut Inst Ro ab hob more father and son  bind to a joint and several a make the son wife executrix and hold that be  only a suspension and he compare a bind to a covenant or promise for no action  can be bring on any of they till break and promise be not release by marriage  therefore nee bind and be quote die Litt Rep clayton case objection that  though statute be of a high nature it be no devastavit to pay the bind before  it because it be not due till break vide more   holt chief justice contra  there be two question in this case first whether rend be of equal degree with  a bind or of high nature than a bind and if payment of debt upon a bind may be  plead in bar of debt for rend a case out of vent be quote at the bar to prove  rend of a high nature than a bind but I hold they to be of equal degree for if  it be a lease by parole it be in the realty and that be in equal degree with a  bind and payment of one by executor be a good plea in bar of the other and the  case of Newport v Godfrey a do not contradict this it be debt for rend upon a  parole lease the defendant plead such a debt upon obligation ultra quod he  have not asset for be in wicker basket step he can not plead the one against  the other till judgement or payment of the money but otherwise if one of they  be of a high nature than the other and there be no diversity between debt in  the realty by specialty and in realty without specialty as to equality of  degree so that if there be no more in this case the plea will be a good plea  but the other point be a great and considerable one videlicet whether the bind  be not extinguish by the marriage though give in consideration of the marriage  and I hold the bind to be extinguish by the marriage and that the bind be a  present immediate duty from the seal and delivery of it and though it be  qualify that be though no action can be bring upon it till after the death of  the husband modern report a release of all action or all debt will release it  a and coke in his comment say a release of all action will discharge it though  no action can be bring upon it at that time because it be a thing in action  and without all dispute a present debt and though it be Payable upon condition  yet it be a present duty and it be a subsequent condition it must have  relation to some antecedent which be the present duty in   diversity between a  condition subsequent and a condition precedent for a release of all demand  will not release a debt upon a c Hobart S c Hutton S c brown S c Noy S c gold  see also cro James a lev Mod vent a see Litt sect modern report er p condition  precedent but will upon a condition subsequent and to say that it be not a  precedent debt be direct against the word of the agreement for he be to pay so  much present and then come the condition and do not suspend the debt but only  add a condition with it and when you come to declare upon this bind you do it  plain without any mention of the condition but if the condition be precedent  you must set it out in plead because you must show it perform without which  you have not a title and though they demand oyer of the condition and have it  enter of record by which it be part of the record yet that do not alter the  plaintiff declaration for if the defendant do not show the condition perform  or not break or plead a sufficient plea the plaintiff shall have judgement  without take a notice of the condition so upon oyer of it if it do not appear  to the court whether the condition be break or not the plaintiff shall have  judgement but if it do appear to the court that the condition be break or not  break they shall give judgement as the condition shall direct that be if it be  for the do of a thing which be not do and that appear to the court the  plaintiff shall have judgement or if it be for not do a thing which be not do  the defendant shall have judgement so it be plain here be a present duty vide  Henry if a obligor pay a debt in a bind without take advantage of the  condition it be a good payment so if it be a debt in the present be may pay it  before the day of payment in the condition and marriage be a actual payment of  the money for by the marriage the bind be give to the husband and then he  himself be to pay it and be the person to who it be to be pay and none can pay  or do other act to himself and if a stranger have make a bind to the feme that  the husband will leave her worth so much money the husband may release it    blow and arundel case and the book make no distinction et where law non modern  report to separate nec our to separate to withhold and I see no ground of  distinction beside my not find it in any book and suppose there have be a  defeasance of this bind and after a intermarriage sure that will discharge the  bind and though a condition be on record that will make no difference for the  defendant must plead performance of it the case where the executor of the  obligee marry the obligor be different for there be diverse right but where  the obligee marry the obligor there be be to receive money to his own use if a  man possess of a term in right of his wife purchase the inheritance it be not  a extinguishment because of diverse right and the diversity of right be a good  ground for diversity in law I Inst   another reason be that such release will  work a wrong in prejudice to a three person tenant for life grant a rend and  then surrender yet rend shall continue during his life a man have rend in fee  confess a statute and then release the rend yet it shall have existence as to  the conusee and upon the same reason be the case of the marriage of the  executor of the obligee to the obligor and if the obligor pay money to the  feme executrix of the obligee and after marry her the law do not make a gift  of it to the husband but be shall have it liable to all the debt and legacy of  the testator now a bind be not support by any thing but itself and here it be  not the marriage that be the consideration of it for it needs none be  sufficient of itself but in case of a promise the marriage be the  consideration and the consideration be what support the promise I grant the  law will work no wrong to a three person but here the marriage be the act of  her that be prejudice by it and therefore it can be think a wrong to her in  the case of divorce put there it be no marriage at all ab beginning and if  husband and wife make a feoff of land of the wife and be afterward divorce it  be a discontinuance for between themselves relation make a nullity but never  as to a three person hob a personal action once suspend be ever go and though  the condition be contingent yet the obligation be absolute and the marriage be  a release of the obligation and not of the condition and a release of a  condition be not a release of the obligation now as to the authority quote by  my brother a man promise to leave his wife worth one thousand pound in case  she survive he a subsequent marriage do not discharge that promise and the law  be so though against the opinion of modern report Hobart but in the case of a  promise there be nothing due to the wife till after the death of the husband  and may be there never will be anything due to her and plead do not make law  but on the contrary plead must be conformable to modern report er p law and be  good evidence of the law and in case of a bind a duty arise immediate and be  only defeasible upon a condition subsequent but upon the promise it do not  arise until after the death of the husband I do agree there be no difference  in this respect between a promise and a specialty if they be make in the same  manner for if there be a covenant to leave a wife worth so much money if she  survive he that shall not be discharge by marriage and a release of all demand  be not a release of a covenant until it be break because until then it do not  lie in demand if a promise have be by a stranger to a wife that the husband in  case she survive he will leave her so much or if a stranger have covenant so  after marriage the husband can not release such promise or covenant for the  rule be anything that may accrue to the wife during marriage the husband may  release and such release will be good though the thing do not fall during the  marriage a as if a devise be of a lease to feme after the death of I S though  the husband have nothing in the lease till after the death of I S yet he may  release it because it may fall in possession during the marriage the case of  belchier v Hodgson in Yelverton b be not very good sense and be much better in  cro James and the reason of a resolution be more to be consider than the  resolution itself and though the intent of the party be that the marriage  shall not release this obligation yet that shall never alter the rule of law  nor be it fit the law shall be strain or tread down to support the intent of  lie gens when they take a wrong way of agreement inconsistent with it and he  say that even chancery will not give relief in this case though it may be  think much more proper for equity than law and he quote the case of darcy v  Chute c a woman have seven hundred pound ayear and by write with a intend  husband it be agree between they that she shall take the profit of it until  her death and after marriage the husband take all the profit contrary to the  agreement and upon this a bill be bring in chancery but they will not relieve  contrary to the rule of modern report law this case go afterward into chancery  where relief d be give the bind be consider as a marriage settlement e