brown against Hancocke brown bring a action upon the case upon a assumpsit  against Hancocke and declare that whereas the of may throw there be some  controversy between Charles Nichols and the brother of the defendant concern  arrearage of rend and it be desire that Nichols will part with his term and  and a cloak and a gelding be offer to the lessee for his term which he refuse  afterward the defendant in consideration that the plaintiff will labour with  Charles Nichols to take the offer and make a end between they assume that  whatsoever the plaintiff undertake for the defendant he will perform and also  save he harmless for any thing that he shall do in that business and then he  say that he procure Charles Nichols to assign his term and to accept the cloak  and gelding which the defendant do not perform and hetley also that the  plaintiff covenant with Charles Nichols to perform the agreement and oblige  himself to that in and that afterward Charles Nichols file a bill of debt for  the money whereupon he compel he to pay it and upon non assumpsit plead it be  find for the plaintiff and three thing be move in arrest of judgement which  sergeant Barkely answer there be a covenant to enter into a obligation at  Michaelmas and the plaintiff show that he enter before so he do not perform  the consideration which he conceive to be a good performance for if a man be  bind to do a act or pay money at Michaelmas a payment before be good h Pasc it  be show that a action of covenant be bring after and they say that upon his  show covenant do not lie but debt but be say that the plaintiff have his  election here to have debt or hetley er p covenant as in the Lord cromwells  case the word covenant provide and agree give advantage of a condition or  covenant if a covenant have be for then debt only lie but here it be to  perform a agreement three that it appear within the declaration that the  action of the case be year before the action bring and so by the statute of  throw the action do not lie I agree if the cause be year before yet the breach  be within the year and that be the cause of action Rep in a covenant there be  the deed and the breach of the covenant and that be the cause of the action  and therefore be matter in deed a accord with satisfaction be a good plea to  it e attaint be ground upon matter of record but the false oath be the cause  of it for that there also accord be a good plea so in our case the non  performance by default be not at the time limit which be before the year but  no action be bring against the plaintiff until within the six year and then he  be not damnified until within the six year Rep Richardson for the two first  exception be agree with Berkeley as to the three he say that there can be no  action before the breach of the promise or covenant but the breach here be  before the six year for the non performance of the agreement be a breach and a  breach be a damnification in one Broughtons case the non payment be a  damnification but all the question here be whether that ought to be plead but  I conceive that it deed not for by the statutelaw the action be take away and  it be a general law the court ought ex duty to take notice of it for in that  after verdict if it appear that there be no cause of action although the  verdict be find for the plaintiff be shall never have judgement and upon the  matter that laches in time amount to a release in law the proviso can aid you  for every man shall be intend without those disability for that that he will  show that he will have advantage of it and crook of the same opinion for the  reason give before and say that although the statute take away the commonlaw  yet it be good law and do for the ease of the subject and for that shall be  favour as the statute of limitation in all case but he say the non performance  be not a damnification before the action bring as if I be bind as for surety  for a who be bind to save I harmless although be do not pay it at the day  there be not a breach before the arrest or judgement for by the judgement the  land and good be liable but for the arrest his body be trouble for that now  the scrivener put in such obligation that they save harmless the party and pay  the money at the day but for the other matter in all he agree and cite  Richardson and Burroughs case where a payment before the day be adjudge a  payment at the day Yelverton that be not find that there be any sufficient  notice give to the defendant by the plaintiff of the agreement make which he  ought to have and he agree in omnibus with Richardson and say that scrivener  use thing ex abundant Richardson it be say to have notice in the declaration  hetley but do not say by who yet after verdict it shall be intend a good  notice and although that Nichols have give the notice it be sufficient if  there be a lease for year upon condition that he do not assign the other  accept the rend of the assignee before notice be shall not be bind by that  acceptance before notice but if notice may be prove either by the plaintiff or  by any although it be by a mere stranger it be sufficient Yelverton deny that  for he say that none but privy can give the notice of it as the case be et  adjournatur