which is not collateral. The obligation to pay arises upon the execution of the bond. I never heard that want of a demand was an answer to an action like this.

In the case

LITTLEDALE J. The plea is no answer. of a single bill the action is a demand. A different rule prevails where there is a bond with a penalty to secure the performance of a collateral act: there the question is, whether the defendant has shewn the performance of the condition. In Carter v. Ring (a), the money by the terms of the condition was payable upon demand, and issue was joined on the fact of the demand. The passage quoted from Lord Coke shews that here the money was payable immediately, that is, in convenient time. It is not necessary at present to determine how the convenient time is to be ascertained.

TAUNTON J. concurred.

PATTESON J. I am of the same opinion. The condition here says nothing as to a demand.

Judgment for plaintiffs.

1834.

GIBBS

against SOUTHAM.

(a) 3 Camp. 459.

1834.

Friday,
Jan. 17th.

BESWICK against JAMES SWINDells.

54-87 Debt on bond. DEBT on bond, dated 7th of April 1813, from the

The condition,

after reciting

defendant and John Swindells (since deceased), in

that the obligor

was about to
marry with A.,
a widow, and
thereby to

become pos

sessed of a

and it was

agreed that he
should execute

a bond to pay
to the children

of A. by her
late husband,
500l. within
twelve months
after her death,
in the event
thereinafter

the sum of 400l. The condition set out on oyer re

cited, that a marriage was intended to be shortly had

between James Swindells and Elizabeth Etchells, of Stock

stock in trade; port, linen draper, by which event James Swindells would become possessed of a considerable stock in trade, goods, chattels, and effects, then her property, and in her possession; and it was agreed upon the treaty for the said marriage, and in consideration of the emolument which James S. would acquire by such marriage, that James S. should execute a sufficient bond to the plaintiff, to pay to the children of E. Etchells, by her late husband Edward Etchells, the sum of 300l. within twelve months next after the decease of E. Etchells, in the event thereinafter specified; the condition was, "That if the above bounden James Swindells, his heirs, executors, &c. do and shall, within twelve months next after the decease of the said E. E. his intended wife,

specified, was,

that "if the

obligor should,

within twelve
months after

the decease of

4., pay to her

children 300l.,
if, upon an
account taken,
the stock in

trade and effects

in the business,
(if then carried
on by the ob-
ligo), should

pay or cause to be paid unto the child or children of
the said E. E. by the said Edward Etchells deceased,

amount to
4001. ; but in
·;
case, upon such account to be taken, the stock in trade should amount to less than 400.;
then if the obligor should pay to the children of A. 1207. ; the bond should be void."

Plea, that long before the death of A. the obligor retired from and ceased to carry on the trade, and that at the death of A. he had not any stock in trade, and that no account of the said stock in trade in the condition mentioned was or could be taken at the time of the death of A. or from thence hitherto: Held, on demurrer, that the true construction of the condition of the bond was, that the obligor had an option to continue or discontinue the trade during the life of A.; and that, he having discontinued it, the event on which the money was to come to the children of A. had never happened; and that the plea, therefore, was good.

which shall be then living, or the issue of such of them as shall be then deceased leaving lawful issue, (such issue taking only the part or share his, her, or their deceased parents or parent would have been entitled unto if living,) the sum of 300l. unto and equally between them in the proportions aforesaid if more then one, and if but one child, then the whole to such surviving child, if upon an account of the stock in trade and effects in the linen-drapery, haberdashery, or mercery trade or business, if then carried on by the said James Swindells, shall amount to the sum of 400l.; but in case, upon such account to be taken as aforesaid, the said stock in trade and effects shall amount to less than that sum, then if the said James Swindells, his heirs, executors, &c. do and shall pay or cause to be paid unto the child or children of the said Elizabeth E. by the said Edward E. deceased, or the survivor of them, or the issue, &c. in manner before limited, the sum of 1207. within the space of twelve months next after the decease of the said Elizabeth E., then the before written obligation shall be void and of none effect, but the same shall otherwise be and remain in full force and virtue."

Plea, that after the solemnization of the marriage, and long before the commencement of this suit, to wit, &c., the said Elizabeth his wife died; and that long before the death of his said wife, to wit, on, &c., James Swindells retired from and ceased, and from thence hitherto has ceased to carry on the said trades and businesses, or any of them, or any other trade or business whatever; and that at the time of the death of Elizabeth he had not, nor has he at any time since hitherto had, nor had he at the time of the commencement of this suit, or since, nor has he now, any stock in

1834.

BESWICK

against SWINDELLS.

trade

1834.

BESWICK

against SWINDELLS.

trade or effects in the linen-drapery, haberdashery, and mercery trades and businesses, or in any of them, or in any other trade or business whatever, and that no account of the said stock in trade and effects in the said condition mentioned was or could be taken at the time of the death of Elizabeth, or at any other time from thence hitherto.

Replication, that, at the expiration of twelve months from and after the decease of Elizabeth, to wit, on, &c., there were and still are living two children of Elizabeth by Edward Etchells, and lawful issue of another child of Elizabeth by E. E., deceased in E. E.'s lifetime, to wit, &c.

Special demurrer, assigning for cause, that the defendant by his plea had pleaded matter which was a complete answer to the declaration, and a complete defence to this action, independent of the fact of E. E. having any children by Edward Etchells, yet that the plaintiff had not by his replication answered, traversed, or denied, the matter so pleaded, or any part thereof. Secondly, that it appeared by the said condition set out in the plea, that the said writing obligatory was subject to a condition, breaches whereof ought to have been assigned or suggested by the replication, according to the statute; and yet no breach was so suggested or assigned; and also that if issue were joined on the replication, such issue would be immaterial. Joinder.

Wightman for the defendant. The replication is undoubtedly bad. The question will be, whether the plea be good. The condition of the bond makes the payment of either of the sums of 300l. or 1207. to the children of E. E. depend on certain contingencies: first, her death; secondly, the carrying on of the business

at

at that time; and, thirdly, the taking an account of the
stock in trade. The plea alleges, that two of these three
contingencies never happened; and, consequently, shews
that the money never became payable to the children.
The words, "if then carried on," over-ride the whole
condition, and make the carrying on of the trade a con-
dition precedent to the payment of either sum of money.
[Taunton J. Is not the sum of 1207. payable at all
events?] That sum is to become payable in case, “on
such an account to be taken, the stock in trade be less
than 400%." The word such incorporates, by reference,
the preceding qualification, that the business be then
carried on.
The plaintiff could not assign a breach of
the condition without averring that the business was
carried on by James Swindells at the death of the wife.
Assuming, even, that the words of the condition are in
this respect ambiguous, still, being introduced for the
benefit of the obligee, they must be construed favourably
for the obligor and against the obligee: Sheppard's
Touchstone, c. 21. p. 375. In Brett v. Pildredge, cited
by Wyndham J., in 1 Siderfin, 102., "a father, upon the
marriage of his daughter, made a proviso, that if his
daughter should die within two years, then her husband
should repay 500l. of her portion: the daughter had
issue, and afterwards she and her issue died within two
years; and it was adjudged that the husband should not
repay the 500l.; for, by the having of issue, the con-
dition was fulfilled." Construing the words of the con-
dition here favourably for the obligor, there can be no
doubt that the carrying on of the trade at the death of
the wife was a condition precedent to any money be-
coming payable to her children; and then the plea is

good,

1834.

BESWICK

against SWINDELLS.