case huish against fillip on a bind to with a defeasance on payment to b a  tender to b will avoid the penalty but not if b have be a mere stranger cro  James yely Bac Abr wood con plea of tender it be sufficient to aver that the  payee be not at the place to receive without say nor any for he ante cro James  Mod there can be a traverse after a express affirmative and negative r cro  James sand Mod Rep Douglas Com dig h hearing complaint and show that he be  oblige in a statute merchant of l to the defendant to the use of one croak  Elizabeth John b she and that a defeasance be make thereupon that if he pay  such sum at such day to John bush that the statute shall he void and show that  at every of the day and place he be a preparation to pay the say sum et to  bring before they and the say John bush be not there to receive they the  defendant plead that at such a day John bush be at the place where c and  demand the sum and neither the plaintiff nor any for he be there for to pay it  without hoe that the plaintiff to bring before the say sum at the say day c  and thereupon the plaintiff demurrer it be move for the defendant that upon  this matter a hearing complaint lie not for John bush be a stranger to the  statute and although he tender to a stranger who refuse yet the reconusance be  forfeit for it be at his peril to procure the stranger to accept it when the  act be to he do to a stranger the court hold that the tender be a sufficient  performance the defeasance of the statute be make to the use of John bush but  if he have be a mere stranger and be not to have any benefit thereof it shall  he otherwise and therefore Glanville say that it be adjudge in meat v savoury  that where one be oblige to another man to the use of a three person to  deliver a chest to the say three person who refuse to receive it upon the  tender at the day that the obligation be save because the obligation be to the  use of the three person for he shall not take advantage of he own act second  it be allege that this declaration be not good for that it be therein croak  Elizabeth er p surmise that John bush be not there to receive it and he do not  say nor any for he for if any other be there to receive it for he it ought to  have be pay unto he and of that opinion be Glanville that for this cause the  declaration be not good but all the other justice hold it to he well enough  for it shall he intend that neither he nor any other by he lawful authorize be  there to receive it for if so it have be as if he himself have be there and so  it shall he intend upon the plead three it be hold that the traverse be not  good for there be a express afflrmative before quod paralits to be et to bring  before and non to bring before be a express negative there shall not he any  traverse for when a matter be express plead in the affirmative which be  express plead by the other party in the negative there a traverse be needless  because there be a sufficient issue join as h n pl S wherefore it be adjudge  for the plaintiff