
    *Patrick M’Sherry against William Askew and William Cochran.
    Bond conditioned that defendant should by a certain day convey lands to plaintiff by such deeds as counsel shall advise; defendant pleads performance, with leave to give the special matters in evidence; plaintiff replies, that defendant did not convey on or before the day; rejoinder, that the plaintiff’s counsel did not on or before the day advise any conveyance; adjudged that the defendant was bound to do the first act, and that his rejoinder was a departure in pleading.
    Debt 3000I. sur obligation dated 12th February 1784. On Oyer, the condition appeared to be that the defendants should, on or before the 20th day of April then next, by a lawful deed of conveyance, such as counsel should advise, convey to the plaintiff certain mills and lands in Hamilton’s-Bann township, in the county of York, with general warranty, and a special covenant against all incumbrances whatsoever.
    Defendants plead performance of covenants, with leave to give special matters in evidence.
    Plaintiff replies, and assigns for breach, that the defend ants did not convey on or before the 20th of April aforesaid, by a lawful deed of conveyance advised by counsel, the said tenements with the appurtenances, to the said Patrick, with general warranty, and the special covenant aforesaid.
    Defendants rejoin, that the counsel of the plaintiff did not at any time, on or before the said 20th day of April, advise any lawful deed of conveyance, by which they might convey the tenements in the condition of the said writing obligatory mentioned, with the appurtenances free and clear of all in-cumbrances to the said Patrick, in which conveyance was to be contained a general warranty and special covenant against all incumberances whatsoever, and of this they put themselves on the country.
    Plaintiff demurs generally to the rejoinder, and the defendants join in demurrer.
    The case was argued this term by Messrs. Seageant and Bowie, for plaintiff; and by Mr. Randolph, for the defendants.
    On the part of the plaintiff it was insisted, that the construction of deeds ought to be according to the intention of the parties. 2 Blackst. 379. Where a defendant has election by a condition to do one of two things, and he cannot by the default of a stranger, himself or the obligee, or the act of God, do one, he ought to do the other. Defeazance to make such assurance as the counsel of the conuzee shall devise before a certain day, or to pay so much money before another day, it is no plea that the counsel did not devise any as-*oai surance. So, one bound to make *such a release as J Dr. Dewin should think sufficient, it is no plea that Dr. Dewin did not devise any release. So one bound to make assurance at the costs of the plaintiff, it is no plea that the plaintiff did not tender the costs. Moor. 645.
    Where a covenant was, that he should convey before such a feast at the cost of the covenantee, the covenantor ought to do the first act, soil, notify to the covenantee, what manner of estate he would have, that covenantee might know what sum of money to tender. 5 Co. 22. b.
    Where the act by the condition of a bond to be performed to the obligee is of its nature a transitory act, (as payment of money, delivery of charters, &c.) and no time is limited, though a place is expressed, there the act ought to be done in convenient time. 6 Co. 30. b. But when the obligee himself is party, and the act cannot be done without his concurrence, then it is reasonable that the obligor should have time during his life, unless the obligee hasten it by request. 6 Co. 31. a. A covenant in the disjunctive, being for the safety of the covenantor, it belongs to him to do the first act. 2 Dord Raym. 279. Debt on bond conditioned to execute a release to the plaintiff, defendant demurs, because the plaintiff did not alledge in his declaration, a tender of a release; per cur. he is bound to do it without a tender. 1 Mod. 104.
    If one is bound in an obligation with condition to enfeoff a stranger before a day, and the obligor doth offer to enfeoff him and he refuses, the obligation is forfeit. Aliter, if it were to enfeoff tbe obligee; for there tender and refusal shall save the bond and the obligee shall not give himself cause of action. Co. Eitt. 209. a. Obligation conditioned to make such a release as one S should advise: Plea that S did not advise any release; adjudged ill, because not alleged, that he drew a release and tendered to the judge to be allowed; for he should draw such a release as the judge should allow. Cro. El. 716.
    If obligation be conditioned to make such a lease, as counsel shall advise, and the obligee appoints him to make a lease to J. S., he ought to do it, though no counsel advise it; for it means only that the lease shall be as good, as counsel may advise. 1 Rol. Abr. 424. pi. 8.
    It was further said, that the defendants in the present suit were bound to do all in their power to save their penalty. The title papers must be presumed to be in their custody, and the proper recitals could not be made in the deed of conveyance to be advised by counsel, unless by having recourse to them.
    It was also insisted on the part of the plaintiff, that the defend * ants’ rejoinder did not fortify their plea of covenants performed, but was variant from it, and was L intended to operate as an excuse, and was therefore a departure; for it is one thing to do a matter, and another to offer to do it. Co. Eitt. 304. a. 4 Bac. Abr. 123.
    In covenant for further assurance, defendant protestando saith, that the plaintiff’s counsel did not advise, &c. and for plea saith that he was not required. Plaintiff replies that J. S. his counsel advised a release and he required defendant to seal it, which he refused. Defendant rejoins that he did not refuse, this is a departure. 4 Bac. Abr. 124. Cites Dyer, 31. b. Doct. pi. i2o.
    Debt on bond for performance of an award, which was to pay plaintiff iol. and to do divers other things. Defendant pleaded performance and shewed how. Plaintiff replied, and assigned breach in non-payment of the iol. Defendant rejoined that he tendered it to plaintiff and he refused it. It is a departure, per Dyer. 7 Vin. 545. pi. 45. Cites 4 Eeo. 79. pi. 167.
    So where the rejoinder was, that he was ready to pay it and seal a release, held a departure. 1 Sid. 10. pi. 6.
    . Debt on bond for non-performance of an award. Defendant pleaded that the award was, that he should release all suits to the plaintiff, which he had done. Plaintiff replies, it was true such an award was made, but they also awarded that the defendant should pay the plaintiff 15I. at such a time and place, absque hoc, that they made such an awTard only as the defendant had alleged. Defendant rejoins, that it was further awarded that the plaintiff should release to the defendant all actions, which he had not done. Upon demurrer the rejoinder of the defendant was held to be a plain departure; for he might and ought to have shewed all this at first. 5 Vin. 547. pi. 51. Cites 2 Bulst. 38, 39.
    In covenant, lessee pleaded .performance generalfy. Plaintiff replied and assigned breach in non-payment of rent. Defendant rejoined that the plaintiff ousted him and held him out, &c. Held a departure, because not in affirmance of the plea. 5 Vin. 548. pi. 56. Cited Sid. 77. pi. 10. Raym. 22. S. C.
    In debt on a bond to perform an award, defendant pleaded nullum fecerunt arbitrium. Plaintiff replied and shewed an award. Defendant rejoined, there were other things submitted and so no award, held a departure. 5 Vin. 548. pi. 58. Cites Sid. 180. pi. 16. Raym. 94. Keb. 678. pi. 72. Dev. 127.
    Covenant to pay. Defendant pleaded performance. Plaintiff replies he did not pay. Defendant rejoins that he tendered. Held a departure. 5 Vin. 549. pi. 63. 2 Barnard. Rep. B. R. 193. Freem. 157. pi. 174.
    Debt on bond to save a parish harmless, from the charge *821 a * kastard child. Plea non damnificatus. Repli--I cation that the parish had laid out 3s. for keeping the child. Defendant rejoins that he tendered the money and plaintiff paid it de injuria stM propria. Demurrer, and rejoinder held a departure. The plea should have been non fruit damnificatus until such a time, and then you offered to take care of the child and tendered, &c. 5 Vin. 549. pi. 60. Mod. 43, 44. 2 Saund. 83. Sid. 444. pi. x. 2 Keb. 612, 6x9.
    Debt on recognizance of bail. Defendant pleaded there was no ca. sa. sued out and returned before exhibiting the bill. Plaintiff replies that a ca. sa. was sued out, &c. defendant rejoined that defendant in the first action brought a writ of error before the ca. sa. prosecuted, returned and filed. Held a departure. 5 Vin. 552. pi. 77. 6 Mod. 139. 2 Uord Raym. 1256.
    Debt on bond conditioned that J. U. should be a true prisoner, without making escape. Defendant pleads that he did remain a true prisoner, &c. Plaintiff assigns breach, that 13th January J. D- made an escape. Defendant rejoins that J. U. went a little way out of the rules of the prison, but being sent for by plaintiff, immediately returned, &c. Demurrer and held a departure; for if this would excuse the escape, it .should have been pleaded at first. 5 Vin. 552, cites Corny. 553, 554, pi. 230.
    Debt on bond, conditioned that he should execute such an office without plaintiff’s assistance. Defendant pleads that he did execute it without his assistance. Plaintiff replied that he did not execute it without his assistance. Defendant rejoins, if the plaintiff did give him his assistance it was voluntary. Demurrer, and held a departure. 5 Vin. 553, pi. 79; Barnard. B. R. 4; 2 Bd. Raym. 1499.
    They also cited 4 Instructor Clerical. 3, 4. References to bars concerning covenants to make assurance of lands, &c. and concluded upon the whole, that the defendant’s rejoinder was departure in pleading.
    On the part of the defendants it was contended, on the merits of the case, that conditions, generally speaking, are to .be expounded liberally in favour of the obligors. 1 Wils. 61. That by the words “lawful deed of conveyance such as counsel should advise, ’ ’ it must be intended that the conveyance should be previously advised by the plaintiff’s counsel: that to suppose is otherwise would be a perfect solecism, by making the defendant’s counsel the judges of what species of conveyance the plaintiff should be obliged to receive. That the word ‘ ‘ advise ’ ’ means to give an opinion on the particular species of deed to be executed. The word “devise” means to frame or pre * pare the deed. But whether it poo be ‘ ‘ advise ” or “ devise, ’ ’ the act to be done by the *- plaintiff’s counsel was to precede the execution of the deed, and consequently the defendants were excused from making the conveyance until such act done.
    As to the supposed departure in pleading, it was said, whatever strictness might be proper in England in such cases, it was rendered unnecessary here, by the liberality of practice which had obtained in Pennsylvania. Under the plea of performance of covenants, with leave to give the special matters in evidence, every matter of excuse might be offered to the jury on the trial, and therefore the defendants’ rejoinder was' in perfect unison with their plea and the rules of the court. They cited Vent. 121; 2 Lev. 5. Debt against a clerk on an obligation, conditioned to perform covenants, one of which was to account for all money he should receive: defendant pleads performance: Plaintiff replies that such a day such a sum came to his hands, which he had not accounted for: defendant rejoins that he accounted modo se-quente, viz. that thieves broke into the counting house and stole it, and that he acquainted the plaintiff, and hocfiaratus est, &c.; and on demurrer it was resolved, that the rejoinder was no departure, for, though it contained new matter, yet it was in -pursuance of the former, since shewing that he was robbed amounted to giving an account.
   Per Curiam.

The defendants were bound to do the first act. They ought to have executed the conveyance and tendered it to the plaintiff, and if the plaintiff’s counsel ought reasonably to have advised such a conveyance, it would have saved the penalty. If the plaintiff refused the deed, when tendered before the day, the propriety of the deed would come on to be tried by due course of law. The defendants having failed to do it, the plaintiff is entitled to judgment on the merits of the case.

Cited in 4 R., 94, where the court said: “In this state we have no court of equity, and therefore it has been considered that whatever would be deemed sufficient ground for relief against a bond in such court, may here be made the ground of defence ill a court of law, and given in evidence under the plea of payment with leave to give the special matter in evidence ; or if the bond be conditioned for the performance of certain covenants, or collateral matters, the defendant having prayed and obtained oyer of the condition, and pleaded performance thereof, with leave to give the special matter in evidence, may under the same, give all such matter for relief in evidence; or in either case may plead it specially.”

As to the point of departure, the cases adduced by the plaintiff clearly shew that it would have been deemed such in England. But it is said the practice here varies. We are of opinion, when the defendants called on the plaintiff to reply to their plea, they voluntarily relinquished and waived the liberty reserved to them of giving the special matters in evidence, and that the rejoinder afterwards amounted to a departure. Ret judgment, therefore, be entered for the plaintiff, and a writ of inquiry issue to ascertain the damages he has sustained. •  