case bassett against bassett a condition if a within six month after the death  of b shall assure a annuity of twenty pound to c as the counsel of c shall  advice at the proper cost of c if he shall require the same or if a shall not  assure the say annuity that then if he pay to c the sum of three hundred pound  the obligation shall be void be not break unless c within six month after the  death of b tender a assurance of the annuity to a for as the assurance be to  be at his cost it be incumbent on he to request a to grant the annuity S C  Freem S C Mod Danv more cro Elizabeth Ro ab   light cro Elizabeth lev   Mod ld  ray Bac Abr a action of debt upon a obligation of six hundred pound penalty  the condition be that if the abovebounderi John Bassett his heir or assign  shall within six month after the death of mary Bassett his mother settle upon  and assure unto Hopton Bassett as the counsel of the say Hopton Bassett  learned in the law shall advice at the cost and charge of the say Hopton  Bassett a annuity or rentcharge of twenty pound per annum Payable halfyearly  by equal portion from the death of the say mary during Hopton bassett life if  he the say Hopton Bassett require the same at the dwellinghouse of the say  John Bassett or if he shall not grant the same if then the say John Bassett  shall pay unto Hopton Bassett within the time aforementioned three hundred  pound then the obligation to be void  The defendant plead that the plaintiff  to wit the say Hopton Bassett have not tender any grant of a annuity within  the time of six month after the death of his mother accord to c the plaintiff  reply the defendant rejoin but the counsel on both side and the court agree  that the whole question arise upon the plea in bar stride for the defendant  the plaintiff ought to have tender we a grant of annuity to be seal within six  month c and have neglect that he have dispense with the whole condition for  first this be not a disjunctive condition but the payment of three hundred  pound be as a penalty impose upon he if be refuse to make such a grant and if  he shall not c instead of the word not put the word refuse to c and the case  will be out of doubt beside the annuity to be grant be but twenty pound ayear  for a life and three hundred pound in money be modern more than the value of  it so that it can be intend a sum to be pay in lieu or recompense of it but  must be take for a penalty but suppose it to be a disjunctive condition a Mod  a then we ought to have a election whether we will do but as this case be the  plaintiff by his negligence have deprive we of our election for authority be  cite Gerningham vewer cro Elizabeth and the yearbook Henry fol laughter case    b and Warner v white resolve the day before in the king bench there be a rule  lie down in Morecombs case more which make against I but the resolution of  that case be law and there need no such rule that case go upon the reason of  lamb case   when a man be oblige to pay such a sum as I S shall assess I S be  a mere stranger the obligor take upon he that I S shall assess a sum in  certain and he must procure he to do it or be forfeit his obligation but in  our case nothing be to be do but by the obligee himself Pemberton contra he  argue that the obligor election be not take away for though no deed be tender  he he may have get one make and the tender of that will have discharge the  condition of his bind indeed this will put he to charge but he may have a  action of debt for what be lie out be cite the case cite by walmesley in more  betwixt mill v wood and gower case Elizabeth c modern er p north chief justice  the case of Warner v while adjudge yesterday in the court of king bench be  accord to law the condition there be that I S shall pay such a sum upon the  that of December or shall appear in Hilary term after in the court of king  bench I S die after the twentyfifth day of December and before Hilary term and  have pay nothing upon the twentyfifth of December in that case the condition  be not break by the nonpayment and the other part become impossible by the act  of God but I think that if the first part of a condition be render impossible  by the act of God that the obligor be bind to perform the other part but in  the case at the bar the obligor election be take away by the act of the  obligee himself and I see no difference betwixt this case and that of  Gerningham vewer in cro Elizabeth if the condition of a obligation be single  to make such assurance as shall be advice by the counsel of the obligee there  a council non devoted to advisamentum be a good plea and the obligor be not  bind to modern make a assurance of his own head no more shall he be bind to do  it when the condition be in the disjunctive to save his bind in both case the  condition refer to the manner of the assurance and it must be make in such  manner as the word of the condition import so he say he be of opinion against  the plaintiff Wyndham justice where the condition of a obligation be in the  disjunctive the obligor must have his election but in this case there be no  such thing as a disjunctive till such time as there be a request make to seal  a deed of annuity and then the obligor will have a election either to execute  the assurance or to pay the three hundred pound but no such request be make it  shall seem that the obligor must pay the three hundred pound at his peril  atkins justice agree with the chief justice and so do Scroggs justice  wherefore judgement be order to be enter against the plaintiff nisi causan c  within a week