case basket against basket to debt on a bind condition to grant a annuity  within six month after the death of a and if he refuse on request to pay l and  if he fail in payment thereof the bind to be forfeit the defendant may plead  no grant tender within the six month for the plaintiff by not make the request  in time have discharge one part of the condition and the law will discharge  the defendant from the other S C Mod S C Freem debt upon a bind with a  condition to make a assurance of a annuity of twenty pound a year to the  plaintiff within six month after the death of mary Bassett and if be refuse  when request by the plaintiff then to pay three hundred pound and if he fail  in payment thereof the bind to be forfeit the defendant plead that the  plaintiff have not tender any grant of a annuity within the six month after  the death of mary Bassett the plaintiff reply that all the six month he be a  prisoner at Morocco in Barbary and that after his return be request the  defendant to this replication the defendant demurrer modern er p George stride  sergeant maintain the demurrer the question be whether the plaintiff by  neglect to tender a grant of the annuity to the defendant have not dispense  with the whole condition and he hold that it be dispense withal and that no  request be make the bind can not be sue at the commonlaw and therefore the  replication be ill it be not so much a disjunctive condition to do one thing  or another but the last clause be a penalty to enforce the first for see the  annuity be to be but twenty pound a year for a life and yet that three hundred  pound be to be pay in case that be not grant this prove it to be only a  penalty because annuity at the high value be but at eight year purchase  whereas this be fifteen year purchase so that the three hundred pound can  never be intend as a modern recompense for the annuity neither can the  defendant possible save the condition because the same time be limit both for  the payment of the three hundred pound and grant of the annuity videlicet  within six month and the plaintiff have to the utmost time to request the  execute the grant and therefore the other can pay the money before a sand a  but take the case to be that this be a disjunctive condition yet since  condition be always make in favour of the obligor the power of election even  in such case be leave whole in he b wright v bull post b but accord to such  construction as will be make for the plaintiff the election be go from the  defendant and leave in the obligee for if be do not request the annuity then  the three hundred pound be to be pay and this be direct against the rule of  disjunctive condition the case of Greeningham vewre c cro Elizabeth roll Abr  Poph Goulds c be express in point where the condition of a bind be that if the  obligor deliver to the plaintiff three bind by such a day or give he such a  release of they as the plaintiff counsel shall advice before the say day that  then c the defendant plead nothing as to the delivery of the bind but say that  the plaintiff counsel advice no release and upon a demurrer this be adjudge  for the defendant because in all obligation with a penalty the election be  always in the obligor and this be a disjunctive condition each part be  likewise in his election for if the obligee shall not tei der the release the  other be not bind to deliver the bind and if he shall tender it then the  obligor may either deliver the bind or execute the release which he please  Henry pl if a man enter into bind with condition to marry jane by such a day  and the obligee marry her before the day the condition be save a roll Abr a  but it be otherwise if a stranger have marry her before that day the act of  God and the act of the obligee in many case dispense with condition as   b  where a parson be bind in a bind condition to resign his church to a in  consideration of a certain pension agree on and the parson refuse the court be  of opinion that he need not resign till he be sure of his pension by deed  which they hold ought to be first tender to he so a man covenant to grant such  a estate to his wife or to leave her worth so much money if she survive he if  she die before he the condition be not break though he do not make such grant  in the case of warren v while b roll Abr b late adjudge in the king bench  where warren be indebt to Warner and white become bind with he to pay the  money before the that day of December then next follow modern but if he do not  pay it that then warren shall appear the next Hilary term follow to warner  action warren die after the that of December but before the term and it be  hold that the bind be not forfeit because the obligor have election to do  either the one or the other and the performance of the one become impossible  by the act of God the obligation be save if the case of more v Moorcomb cro  Elizabeth shall be object where the condition of the bind be that the  defendant shall deliver to the plaintiff a ship before such a feast or in  default thereof pay at the same feast such a sum as a three person therein  name shall adjudger which three person appoint no sum to be pay and yet there  it be adjudge for the plaintiff that it do not dispense with the whole  condition he agree this case to be law because there the valuation and worth  of the ship and the money to be pay be by the appointment of a stranger and  the condition be for the benefit of the defendant he be to procure the  stranger to make a appointment modern er p what sum shall be pay or to deliver  the good otherwise the bind be forfeit and be have express agree to do the one  or the other but this be not like the case at the bar where it be not a  stranger but the obligee himself that must procure the conveyance for it be to  be advice by his counsel and to be do at his cost and therefore in lamb case c    c it be hold that if a man be bind to give such a release before such a day  as the judge of the admiralty shall direct it be no plea to say that he  appoint none for the judge be a stranger to the condition the defendant be to  apply himself to he have undertake to perform it at hisperils which be the  same resolution with more be case in croak so that he take it for a rule in  all case that where the act of God or of the obligee discharge the obligor  from one part of a disjunctive obligation the law discharge he of the other  and therefore pray judgement for the defendant dyer Pemberton sergeant contra  it appear that one thing or the other be to be do in this case for if the  plaintiff demand and tender a annuity the defendant be to seal it and if he do  not tender it then likewise the defendant be to do something videlicet to pay  three hundred pound so that the plaintiff be either to have the annuity or the  money he agree that where the obligor have the election in such case if the  obligee shall wilful determine it the bind be thereby discharge modern but if  a stranger take away the election it be no discharge for in such case the  other part be to be perform in this case the plaintiff have do no wilful act  to determine the defendant election but all which be pretend be that he have  not do something necessary to be perform which be that he have not make a  request but by his omission thereof the defendant election be not take away  for though no request be make within the six month yet the defendant may have  prepare a grant of the annuity himself and have offer it to the plaintiff  within the six month upon the last part of the day and if he have thus set  forth his case and allege that the plaintiff make no request nor tender he a  grant of the annuity to seal this have be a good performance of the condition  for he have do that which be the substance which though it be to be do at the  plaintiff charge yet the defendant may have bring a action for so much money  by he pay to the use of the other and the case put in the principal case in  more be express for the plaintiff in this case where the judgement be that if  there be a statute with a defeasance to make such conveyance as the counsel of  the conusee shall direct the cognisor must prepare the conveyance if the other  do not and there be a case put where a thing be to be do at the cost of the  plaintiff yet the defendant do it at his own charge which he recover of the  other north chief justice and the whole court be of opinion that the plea be  good because the defendant have the benefit of election and the plaintiff not  make the request within the six month have dispense with one part of the  condition and the law have discharge the defendant of the other part and they  rely upon the case of Greeningham vewre which they hold to be good law and a  authority express in the very point in this case the obligee be to do the  first act videlicet to make the request where the condition be single  concilium non devoted to advisamentum be a good plea to discharge the  defendant so here the condition be but single as to the defendant for though  it be disjunctive yet the plaintiff have take away the benefit of election  from the obligor of do the one and therefore he shall be excuse from do the  other the plead as allege by the counsel of the plaintiff will not have be a  good performance of the condition for if one be bind to convey as the counsel  of the other shall modern advice and he make the conveyance himself this be  not such a deed as be intend by the party and so no performance of the  condition but however the defendant need not plead it for he be not bind so to  do here if the plaintiff have request the seal of such a grant of a annuity  even the defendant have liberty either to execute it or to pay the three  hundred pound and where the election be on the obligor part neither the act or  neglect of the obligee shall take it away from he for it will be unreasonable  that the obligee shall have his choice either to accept of the annuity or the  three hundred pound when it be a know rule that all condition where there be a  peAally in the bind be modern er p make in favour and for the benefit of the  obligor and the three hundred pound in this case to be pay upon the refusal of  the defendant to make such grant be in the nature of a penalty to enforce he  to do it the principal case in more be agree to be law but the rule there put  be deny as not adequate to the present case which be that if by the act of God  or of the party or through default of a stranger it become impossible for the  obligor to do one thing in a disjunctive condition be be notwithstanding bind  to do the other this be true only as to the last case but not to the two first  and for a authority laughter case a   a be full in point which be that when a  condition consist of two part in the disjunctive and both be possible at the  time of the bind make and afterward one become impossible by the act of God or  of the party the obligor be not bind to perform the other part and judgement  be give for the defendant