
    SEPTEMBER TERM, 1721.
    Lord Proprietary against Thomas Cockshut.
    THIS was an action of debt, on an administration bond sued at the instance and for the use of Daniel Dulany.
    
    The defendant pleaded the conditions performed and the plaintiff replied that Daniel Dulany recovered a judgment in Calvert County Court against the executor who had assets, and that he refused to pay him.
    Rejoinder — confessing the assets with an encore prist. &c. Demurrer by reason of the departure.
    T. Bordley, and D. Dulany, for plaintiff — M. Howard, and M. Jennifer, for defendants.
    
      Dulany, for plaintiff,
   Cites the case of Wood v. Kirkham, 2 Lev. 67. where the covenant was to return all the effects of goods sent to Barbadoes ; the defendant pleaded performance. Replication, that such and such goods were sent, of which the defendant had returned no effects. The defendant rejoined, that he had no order to return the effects of them. On demurrer this was held to be a departure. The case of House v. Launder, 1 Lev. 85. where obligation was to stand to an award, plea, no award. The plaintiff replies and sets forth an award and a breach. The defendant in his rejoinder confessed the award, but shewed that it was Void in law. This was held to be a departure. So in the case of Morgan v. Man, 1 Lev. 127. Richards v. Hodges, 2 Saunders, 84. Obligation by reputed father to save the parish from the expense of maintenance of the child. General plea of non-damnificatus. The plaintiff replied and shewed how the parish was damnified. To which the defendant rejoined that he wished to support the child, but they would not permit him. This on demurrer was held to be a departure, that the defendant ought to have pleaded this at first. Robers v. Mariett, 2 Saund. 189, 190. Condition to perform an award, plea, no award. Replication, shewing an award made. To which the defendant rejoined, confessing an award, but alleged that it had not been tendered according to the condition. Held to be a departure. Ludw. 385. 421. 428. 1 Sid. 10. 1 Salk. 221. Administering well and truly relates only to the bringing in of the account, 1 Salk. 316. Ludw. 882. Compared the English bond and the Maryland bond together and insisted on the legality of the condition as to the payment of the debts, and that the single question on a proper issue was whether payment or non-payment, performance or non-performance.

Tender and tout temps prist comes too late when pay-is past, or when the bond is forfeited. Salk. 622, 623. In the case of Park v. Middleton. 1 Lutw. 419. payment of charges was pleaded, rejoinder an excuse for not paying ; that the attorney had not delivered his bill — was held to be a departure. — Lovelace v. Bickham, Lutw. 424.

The Provincial Court gave judgment for the defendant, which judgment was reversed in the Court of Appeals at July term, 1721.  