burrow collins versus gibbs Tuesday that Nov see durn condition precedent must  be aver to be perform or that the plaintiff be ready to perform it Mr Burland  have move on Thursday last in arrest of judgement after a judgement by default  and a writ of inquiry execute in a action upon the case on assumpsit v salk S  c N B Mr nurse be in fact a very good scholar burrow er p his objection be the  want of a averment of performance of what he insist to be a condition  precedent the question be whether it be a condition precedent or not it be a  action upon the case wherein the plaintiff have first recite the dependency of  a former action bring by the defendant against he and a compromise thereof  upon a agreement for the payment of the cost of it by the present defendant to  the present plaintiff on the now plaintiff give he a general release lie the  defendant promise to pay he his demand in the present action to have be make  in consideration that the say William the now plaintiff at the special  instance and request of the say John the now defendant will execute to the say  John a general release to bear date on the that day of July in the year  aforesaid which be the day before the agreement and to be fill up in the  common and usual form of general release he the say John the present defendant  undertake and faithful promise the say William the present plaintiff to pay he  all the cost and expense that he the say William have be at in defend the say  suit see counsel subpoenaing witness journey and all other charge and demand  in the say suit whatsoever as soon as a bill of such cost can be prepare and  produce to he the say John then the plaintiff aver his cost and expense in the  say suit to have be S d and that a bill of such cost and expense be prepare  and produce to the defendant whereof he have notice but the say defendant c c  burrow Mr Burland urge that the plaintiff ought to have aver that he have give  or tender to the defendant a general release execute for that his give such a  release appear to be a condition precedent the defendant promise be make in  consideration that he will do so in proof of which he cite Hobart Ro Rep ld  raym Thorp v Thorp Mr don contra cite salk roe v Haugh in cam chess where the  judge hold that they ought to do what they can to help the declaration which  case he acknowledge to be after a verdict Mr Burland reply that that be after  a verdict this be only after a judgement by default the release will be no bar  to the demand in the present case because it be agree that it shall bear date  the day before the agreement so that the cause of action be subsequent to it  and therefore can not be bar by it the plaintiff make no promise to execute  the release therefore we have no other method to oblige he to it the payment  of the money be to be on his execute it p Lord Mansfield the release be to be  give at the special instance and request of John the now defendant but perhaps  he may never request it we will see if it can be make good by construction cur  advis Lord Mansfield now deliver the resolution of the court this be a motion  make by the defendant in arrest of a judgement by default so that it come  before the court exact as if it have be upon demurrer and be not like the case  of objection to judgement after verdict the plaintiff have not aver  performance of what be to be do on his part nor show that he be ready to  perform it therefore we be all of opinion that it can not be make good as lie  in the declaration and the true distinction as to supply such defect be  whether the objection be make after a verdict or not therefore the judgement  must be arrest burrow whereupon Mr don move to amend upon payment of cost by  insert such a averment as he say the fact real be which be oppose by Mr  Burland as be too late after judgement be arrest and as have never be do Lord  MansfieldAs it be doubtful whether this can be do or not and as it be certain  that the difference between pay cost to amend and beginning afresh be very  trifle in this case it be better to let the rule be as it be pronounce and  accordinglylet the judgement be arrest per cur judgement arrest burrow er p