Whether this view of the law was that generally taken by the contemporary judges, and, if so, when it gave way to a more modern conception, is not very material to this discussion, but it may be mentioned that Choke's statement seems inconsistent with the opinions of writers of authority not long afterwards.83 What is material to observe is that, whichever way the point is decided, these authorities have no bearing upcm the question of the immediate right to sue upon the reparation of a contract. It may safely be asserted that Choke ana his contemporaries and successors would all have agreed that a covenant to convey land before a certain feast, or a covenant to pay damages if the covenantor failed to convey land before a certain feast, could in no event have been sued upon before the feast.84
83 a; Perkins, Profitable Book, Sec.Sec. 736, 757; 1 Rone's Ab. 419 (C) pl. 2; lb. 420 (E) pl. 1, 2. The last passage reads: "If the condition of a bond or feoffment is impossible when it is made it is a void condition, but the obligation or feoffment is not void but single, because the condition is subsequent, fiat if a condition precedent be impossible when it is made the whole is void, for nothing passes before the condition is performed." Perkins (Sec.757) gives a case of a condition originally possible, but subsequently becoming impossible.
83Perkins, Profitable Book, Sec.800: "And there is a diversity when the condition is to be performed on the part of the feoffor or grantor, etc., and when on the part of the feoffee or grantee, etc. For when it is to be performed on the part of the feoffee or grantee, it behoveth him that he be not disabled at any time to do or perform the same."
Sec. 801. "But when the condition is to be performed on the part of the feoffor or grantor, although they are disabled to perform it at any time before the day on which it ought to be performed, yet if they are able to perform the same at the day, etc., it is sufficient, except in special cases." Illustrations are also given by the author.
This was written in the first half of the sixteenth century. Coke adopted the diversity (Co. Litt. 221 b); but neither author gives a satisfactory reason for it.
In the case put by Choke the condition was to be performed by the obligor, grantor of the bond.