Baskett v Baskett
| Jurisdiction | England & Wales |
| Date | 1826 |
| Year | 1826 |
| Court | High Court |
English Reports Citation: 89 E.R. 163
THE COURTS OF KING'S BENCH AND COMMON PLEAS
case 236. baskett v. baskett. S. C. 1 Mod. 264. 2 Mod. 200. Where the condition of a bond is, " that the obligor should either make such an assurance as the obligee's counsel should advise, within 6 months, or else pay 3001." it is a good defence to say that the obligee's counsel did advise no assurance, within 6 months (a). The condition was, that the obligor should either make the obligee such an assurance of an annuity of 201. per annum during his life, as the obligee's counsel should advise, within six months, or else that he should pay him 3001. [229] The defen dant pleaded, that the obligee's counsel did advise no assurance within the six months. The question was, here being a disjunctive condition, and the one part of it being become impossible by the obligee's default, whether the obligor was not excused from the performance of the other1? And the Court inclined that he was ; for where the condition is disjunctive, it is for the benefit of the obligor, and he hath an election which he will perform; and the obligee shall not by his own act take away the benefit of this election; for the condition here is in effect no more than this : If he did not make him such an assurance of the annuity as his counsel should advise, he would pay him 3001. which plainly appears to be by way of penalty, beiug twice the value of the annuity. And the difference was taken, where the obligee or his counsel are concerned, and where a mere stranger; for if the condition were to make such assurance as J. S. should advise, there it is no plea to say J. S. did not advise ; for he ought to procure him at his peril to advise ; but if it be the counsel of the obligee, there concilium non dedit advisa-mentum is a good plea. Cro. El. 97. And they denied the rule that is taken in casein Moor [p. 645], that when one part of a condition is become impossible by the act of God, or the party or a stranger, there the obligor ought to perform the other (b); for it is expressly contrary to Laughter's case, 5 Co. but the principal case there they said was good law. (a) Ante, p. 158. Post, p. 241. (a) Cro. El. 396, 539. T. Jo. 95. Com. Dig. Condition, H. 1 Rol. Ab. 446. (b) " This is true only as to the last case, and not to the two first." S. C. 2 Mod. 204. See 1 Salk. 170, pi. 2, where the ground of Laughter's case was denied to be universal: and see Drummond v. D. of Bolton, Say....
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