
    Stephen Shackelford against James Barrow.
    Columbia,
    
      April, 1797.
    In mutual covenants the payment or performance by one party raises an obligation on the other party to perform bis covenant without a de* maud-
    DEBT on bond to make titles to land.
    This was a case tried in Georgetown district, before Bay, J.
    It appeared in evidence, that the defendant was, by the condition of the bond, to make good titles to three tracts of land, but no time was mentioned within which they were to be made.
    That the plaintiff soon after paid the defendant the consideration money, but he could not make the titles to the land, as there were unsatisfied judgments against him, to more than the value of the land ; whereupon the plaintiff brought his action on the bond.
    Mr. Falconer, for the defendant,
    insisted that this action would not lie, as no demand of titles had been made on the. defendant before the suit was commenced, and that the defendant in such case, had all his life-time to perform his covenant, unless it had been hastened by such demand. The judge overruled the objection, on the ground that the payment of the consideration money, raised the obligation on the part of the defendant, to make the titles at his peril; and that there was no need of a demand, where such obligation had commenced.
   The case then went to the jury, who, notwithstanding this decision of the court, found for the defendant. This was therefore a motion for a new trial, on the ground that the verdict was against law, and the opinion of the judge who tried the cause.

After hearing arguments for and against this motion, the court was unanimously of opinion, that a new trial should be granted; as the verdict was against law, as well as the charge of the judge who cried the cause. That where there are mutual covenants to be performed on both sides, and no time is fixed for performance, in such case either party may hasten it by demand, or by payment, or by tender and refusal; but where one of the parties performs his part fully, from that moment the other party is bound to fulfil his part of it, in like manner. It is then that the obligation commences, in a moral, as well as in a legal point of view, on the part of the one who has not performed his covenant j and where an obligation has commenced, the party is bound to perform it at his peril afterwards.

■Present, Burke, Grimke, Waties and Bat.  