case Harwood and BINcKs against Hilliard c if a agree for himself his executor  c to pay b his proportion of the money that land shall sell for less than such  a sum so as b give he notice in write of the say sale this amount to a  covenant on which the executor of a have notice of the sale be liable to a  action although no notice be give to his testator S C keb by a agreement  between the plaintiff and the testator of the defendant a parcel of land be to  be sell for four hundred pound but if it do not arise to so much then they  covenant with each other to repay proportionable to the abatement and the  defendant testator covenant for himself and his executor to pay his proportion  to the plaintiff so as the plaintiff give he notice in write of the say sale  by the space of ten day but do not say that such notice be to be give to his  executor or administrator and now the plaintiff aver that they give notice  accord to the defendant who be executor and the breach assign be that he have  not pay c the defendant demand oyer of the indenture wherein be a variance  betweep the covenant which be for notice to be give to the testator and this  declaration by which notice be aver to be give to the executor and for this  reason be demurrer dolben sergeant recorder of London argue for he that this  be in the nature of a condition precedent and therefore they ought to have  give the testator notice which accord to the agreement ought also to have be  personal which not be do but only notice give to his executor do make a  material and fatal difference between the covenant and this declaration Henry  pl Henry pl and that in this case there be no covenant by the testator at all  for all agree to pay their proportion and the testator shall pay his part  which be not a covenant barrel sergeant on the other side say that the  executor do represent the person of the testator and that though this covenant  be to give notice to the testator yet if the declaration have be of a covenant  to give notice to he his executor and administrator c it have be no material  variance so as to prejudice the action of the plaintiff because it be no more  than what the law imply pi Com modern the chief justice and Atkins justice  upon the first open this matter this term incline that the notice ought to be  personal and that the variance be material but afterward in Hilary term follow  mutatd opinion the whole court agree it to be otherwise because the covenant  run in interest and charge and so the executor be bind to pay and therefore it  be necessary that he shall have modern er p notice second that there be no  material difference between the declaration and the covenant and last that the  testator be a party to the deed his agreement to pay amount to a covenant  though the formal word of covenant grant c be want but then dolben sergeant  perceive the opinion of the court insist that the declaration be nought for  another reason videlicet they have not declare that this notice be give in  write which be express agree in the covenant to which it be answer that the  defendant have plead that be give notice secundumformam el execution condition  it be well enough but dolben sergeant say that will not help the want of  substance and cite a case where a action of debt be bring for the performance  of a award so as the same be deliver in write c and the defendant plead non to  weigh well in scribe and the plaintiff reply and set forth the award in write  but do not direct answer the plea of deliver it in write only by way of  argument and upon demurrer there all men justice contra to express grief and  so they be in this case that the notice must be plead in write and that  secundumformam condition be not good and so judgement be give for the  defendant