518 CHASE v. MANHARDT.—1 BLAND.

although the assignment and releases were to be made to Richard
M. Chase, yet when so made they were to be delivered to the com-
plainant Samuel Chase. And further, that on Bryden's deliver-
ing those papers to Chase be would give Bryden, "good negotia-
ble notes for the sum of $6,000, payable sis months thereafter."
Whence it is perfectly clear, that the delivery of the specified
papers was that act to be done by Bryden, which was to bind
Chase to him unconditionally as his debtor. Consequently, it was
the contracting party Samuel Chase, alone, who could insist on the
performance of it as a condition precedent. It was he alone who
could dispense with it as a preliminary act, or waive it altogether.
Does it then appear, that this act has been either performed,
* partially dispensed with, or altogether waived so as to
340 make Chase the debtor of Bryden; and when?

From all the pleadings and proofs it is clear, that the complain-
ant acquiesced in the fact, and acted upon the conviction of his
having become legally and properly the debtor of Bryden in the
sum of $6.000 from the 17th of July, 1812, when the, papers were
tendered to him. He was right in refusing to give his notes at
that time, because of the attachment. It was not, however, the
giving of his notes, which alone could fix him as the debtor of
Bryden; but the delivery of the papers, or his dispensation with
that delivery, either as a condition precedent or altogether. Chase
did not reject the performance proffered to him by Bryden; be-
cause it was partial, or at all defective in its nature. On the con-
trary, he expressly said he had no objections to make to it; and
rested his nou-compliance, on the pendency of the attachment;
and nothing more. From the position he then assumed, it mani-
festly appears, that he waived the delivery of the papers as a
condition precedent; and relied upon his contract alone, consider-
ing it as an independent agreement, by means of which he might
obtain them. He might then have taken the ground, that the
delivery was a condition precedent; or he might have offered to
deposit the money in Court on those papers being delivered to
him; or he might have put that defence upon the record in the
attachment ease by a special plea, or in answer to the interroga-
tories propounded to him. But he did not do so. He must there-
fore, be considered as the debtor of Bryden on the 17th of July,
1812, according to the terms of his contract.

Being perfectly satisfied of these facts, and that Samuel Chase
did thus acknowledge and consider himself as the debtor of Bryden
on that day; it is unnecessary to determine whether this claim of
Bryden's was or was not such a debt as might have been attached
in the hands of Chase as his garnishee; since Chase's whole course
of conduct in the attachment case amounts to a total and absolute
waiver of every objection on that ground. Louderman v. Wilson.
2 H. & J. 379.