Warner v. Harding , 1 N.C. 69 ( 1793 )

Doderidge, J.

There are two points in the proviso: the tender of the ring, and the declaration of the reason of its being tendered. And whether the declaration be the principal or the accessary, is the question. No man can make a tender, unless he shews to what purpose it is made. An attorney who has a warrant to deliver seisin, ought to declare that he deliver the clod in the name of the seisin. Attornment is a personal act and therefore in a quod juris clamat, one cannot appear by attorney. Yet attornment may be made by a stranger, with the consent of the lessee. So if one be seized of lands in fee, and a letter of attorney is made to give livery, and the attorney puts the lessee out possession: in this case if the lessee commands his servant to enter on the land, and he does so, it is as good an attornment as if the lessee himself had entered. In the present case, the principal act is the tender, then if the *statute gives the tender of the ring, it also gives the power of declaring. Englefield’s case is still stronger; for there it was expressed that he was his nephew and likely to be his heir &c. But all this is only a flourish, And the Duke of Norfolk’s case has no affinity to this; for I may convey another man's lands, but I cannot write with his hand.

Jones, J.

The condition is given to the King. In every condition there is something to be done or abstained from; which makes the breach or performance of it; and some times a penalty which is the entry. When a condition is given to the King, he has both parts. The payment is not personal here, and may be made by attorney, and the tender of the ring is nothing more, 4 Rep. 72. 73. Burrough’s case, and another adjudged in the Exchequer. A lease for years was made by the Abbot of Strata Mercel, rendering rent, and if the rent be behind, and be lawfully demanded. It shall be lawful for him to reenter: the reversion fell to the Crown: and it was adjudged that the demand was not necessary, Adjournetur to be argued by the Justices, postea, p. 102. Jones 134. Noy 79. Bendl. 139. Roll. 393.