to the Iffue of the fecond Son in Tail, with divers Remainders over; with Provifo, That it fhall be lawful for the Covenantor, at any Time during his Life, to revoke any of the faid Ufes, &c. This Provifo being coupled with a Ufe, is allowed to be good, and not repugnant to the former Eftates; but in Cafe of a Feoffment, or other Conveyance, whereby the Feoffee, or Grantee, &c. is in by the Common Law, fuch a Provifo is merely repugnant and void.

Of Mortgages.

A Mortgage, in the Common Law, fignifies a Pawn of Lands, or Tenements, or any Thing moveable, laid or bound for Money borrowed, peremptorily to be the Creditors for ever, if the Money be not paid at the Day a greed upon.

But upon the Mortgagor's paying the Intereft of the Money to the Mortgagee, these Mortgages often continue a long Time without difturbing the Poffeffion, or Parties.

Mortgages are made feveral Ways; as, by Leafe for a long Term of Years, by Feoffment, Leafe and Refeafe, Affignment, &c. In which Deed there is contained a Provifo, or Condition, That if the Money be paid at the Day, the Deed to cease and be void.

And until Failure is made, the Mortgagor holds the Lands; but if Failure be made, and the Mortgagee enter into the Land, yet the Mortgagor has an Equity of Redemption, and may call the Mortgagee to an Account for his Receipt of the Profits.

Alfo the Mortgagee, if he be minded to bar "the Equity of Redemption, may call the Mort

gagor

gagor to Account, either to pay what is due, or to be foreclosed of his Equity of Redemption, which the Court of Chancery will order in fome convenient Time.

The Intereft in Law, in Lands mortgaged, is in the Mortgagee before Forfeiture; for he hath purchased the Lands as it were, as the Law will intend; and though the Mortgagor may redeem, yet it is not certainly known whether he will or not, and without it the Eftate is abfolute in the Mortgagee.

Perfons having once mortgaged Lands, and who mortgage the fame a fecond Time, without discovering the first Mortgage, forfeit their Equity of Redemption, and the fecond Mortgagee may redeem. 4 & 5 W. & M.

In Mortgages, upon Condition to pay Money by a certain Day by the Mortgagor, though he die, yet his Heir coming within the Time limited, may pay the Money and fave the Condition, he having an Intereft in the fame, and for that the Mortgagee receives no Damage thereby, the Intent of the Condition being performed. And the fame Law is of the Mortga gor's Executors, or Administrators, &c.

But a Stranger fhall not do fo, unless the Heir be an Ideot: And where no Time is limited, the Mortgagor hath Time during Life; but if he die before Payment, his Heirs, Executors, and Adminiftrators, fhall not be received to pay the Money: But it is otherwife in cafe of a Condition of a Bond for Payment of Money, no Time being limited, for then the Money must be paid in convenient Time. Co. Lit. 1 Part, Sec. 334. p. 206, &c.

Where a Mortgage is made to a Man in Fee, and the Mortgagee, before Day of Payment, N 3

dies,

dies, the Executors fhall have the Money, unlefs the Heir be particularly named: If it be made payable to him, his Heirs or Executors, the Mortgagor may pay it to either; and yet in this Cafe, when the Day is paft, 'tis as much as if no Perfon had been appointed, and the Law appoints it to the Executor. Co. Lit. 210.

If a Condition annexed to Lands be poffible at the making, and afterwards become impoffi ble by the Act of God, or if the Condition fubfequent be impoffible, yet is the Feoffee's Eftate abfolute; or if the Condition fubfequent be Malum in fe, or repugnant to Law, it is the fame: But it is otherwife in Bonds, which are Things in Action, and Executory; for the Condition becoming impoffible by Act of God, of the Law, or of the Obligee, the Obligation is faved, and the Obligee fhall have no Advantage thereof; or if the Condition be Malum in Je, or against Law: And a Condition impoffible, doth not avoid a Bond, but it thereby becomes Single. Ibid.

See more of Conditions before, in the Chapter of Obfervations, &c. on the particular Parts of a Deed, under the Title Conditions.

Of Obligations, &c.

AN Obligation is a Deed in Writing, where

by one doth bind himself to another to pay a Sum of Money, or do fome other Thing. And an Obligation is fometimes double, or conditional, when it hath a Condition annexed to it; and then it is faid to be a Bond, containing a Penalty, with Condition to pay Money, or do fome other Thing.

And

And this Condition fometimes is, and may be either in the fame Deed, or in another; and it is generally fubfcribed to, fometimes included within, and fometimes indorfed upon the Obligation.

It may be made upon Parchment or Paper; and it may be made in a Piece of Parchment or Paper by itself, or on a Piece fewed in a Book; and it may be in the firft or third Perfon. Bro. Ob. 67. 30. b. Trin. 19 Eliz. B. R.

The Condition of an Obligation, for the Matter of it, must be to do a Thing lawful and poffible; as, to pay Money, deliver Goods, enter into a Statute, make a Relcafe, furrender an Estate, for quiet enjoying, to fave harmlefs, defend a Title, perform a Will, abide an Award, give fo much Legacy, purchase Lands, appear in Court, marry another, not fue nor meddle with an Executorship, not revoke a Letter of Attoney, not Play at Cards or Dice, &c. Co. 10. 110. Weft. Symb. &'c.

But when the Matter or Thing to be done, or not be done, by the Condition, is unlawful, or impoffible, or the Condition itself is repugnant, infenfible or incertain, the Condition is void and, in fome Cafes, the Obligation also.

Bonds not to ufe Trades, and not to till Ground, &c. are unlawful.

An Obligation may be good though it contains falfe Latin, if the Intent of the Parties fufficiently appears; as Jobanues for Johannem, Octogenta for Octoginta, Septuagefimo for Septuaginta Libras, &c. or Aprile inftead of Aprilis, &c. in any Thing wherein the Meaning is not fo incertain, but that the fame may be difcerned. Co. 10 33. Fitz. Obl. 12. 2 H. 4. 14. N 4

And

And if it has no Date, or a falfe Date, if it be fealed and delivered, it is a good Obligation. If the Words at the Clofe of the Condition, That then this Obligation to be void, be omitted, the Condition is void; but it does not hurt the Obligation, for that remains Single: But if the Words, or elfe fhall ftand in Force, be omitted, neither the Condition nor the Obligation are the worse. Cur. B. R. Pafche 90. Trueman and Parram's Cafe.

A Condition repugnant to the Obligation, or of a Thing impoffible, &c. is void, but the Obligation is good: And a Condition to do a Thing beyond Sea, is good, and triable here, when it must be faid in France, &c. in Com' Midd', which is not traverfable. 7 H. 6. 44. 21 H. 7. 24, 30. 10 H. 6. 14. 21 Ed. 4. 10.

If Women are drawn in through Flattery, or Threatning, to enter into an Obligation, they may be relieved in Chancery. 31 H. 6. c. 39.

Where feveral are bound in an Obligation feverally, as Obligamus nos & utrumque noftrum, &'c. the Obligee may fue all the Obligors together, or all of them apart; but not fome of them jointly, and not the reft, and have several Judgments and Executions; but he fhall have Satisfaction but once, for as foon as that is had, if it be of one only, the reft are difcharged: But in a joint Obligation, if one be fued, he is not bound to answer unless the reft be fued alfo, and he may take Advantage of it, and plead in Abatement of the Writ, by fhewing the Matter to the Court. Dyer 19. 310. Co. 5. 119. 9. 53. Hill. 39 Eliz. B. R. adjudged.

But if he appears and fhews it not, the Jury will find against him, and he will be charged