case thorp against thorp refer to Foakes v beer App Cas if a have mortgage  certain land to b agree to make a release of his equity of redemption in  consideration of which b agree to pay a the sum of seven pound the make of the  release be a condition precedent to the payment of the money S c comy S c ld  ray S c holt S c Lut S c n Lut S c salk error from the court of common plea of  a judgement in a action on the case wherein the plaintiff declare that the  defendant have and hold of he by way of mortgage two close of copyhold land  and that there be a discourse between they concern the plaintiff release his  equity of redemption therein to the defendant and concern diverse sum of money  due from the plaintiff to the defendant upon the say mortgage upon which the  plaintiff do agree with the defendant that he will release to he the say  equity of redemption in consideration of which the defendant do agree with the  plaintiff to pay he seven pound above all that be due and that n consideration  that the plaintiff promise the defendant to perform all of his side the  defendant promise the plaintiff to perform of his side and aver that he do  perform all on his the plaintiff side but that the defendant pay one pound  seven shilling of the say seven pound and no more c to this the defendant  plead in bar that long after the promise videlicet July the plaintiff do by  indenture make between he and the defendant release to the defendant all  manner of action suit debt duty sum and sum of money and all demand whatsoever  which ever he have or he his heir executor or assign ever shall have for or by  reason of any thing matter or demand whatsoever upon oyer of this deed of  release it recite the say mortgage and release all proviso therein and all his  estate right title and interest in the say close both in law and equity and  then follow the forgo clause a and upon this the plaintiff demurrer and  judgement for the plaintiff in the court of common plea Cowper for the  plaintiff in error object to the declaration that the consideration set forth  in it be not sufficient to support a promise b for though equity of redemption  be a modern report thing pretty well know and for the most part valuable yet  some may be not of any value and this may be of they and therefore it be  necessary to show that it be of some value and for a example of a equity of  redemption without value be put this case if a mortgage be till so much money  be raise by the mortgagee out of the profit here the mortgagor have a equity  of redeem by payment of the money and charge and yet it be of no value to the  other to have it release but to the contrary the redemption there will be  rather a benefit to he second be object that it do not appear by the count  that the mortgage be forfeit and then the plaintiff have no equity of  redemption ergo no consideration for the promise ergo c vide sand style then  the plea in bar be good for the release be full in word and subsequent to the  promise but say they the money be to be pay in consideration of the release  therefore the release which create the duty can in eoden earnestness  extinguish it to this I answer that the payment of the money do not arise from  the release but from the promise and the promise and not the release be the  consideration of the debt action lie upon the mutual promise before the  release ergo the release come after the cause of action and consequent destroy  it march where a see the plead in the case Lutw Lord ray b see black Rep Cowp  Com dig action of assumpsit b modern report er p promise be their own mutual  consideration there needs no performance to support the action hob in  consideration that the plaintiff promise to deliver the defendant a cow the  defendant promise the plaintiff fifty shilling in a action for the money there  needs no averment of delivery of the cow or vice line Cr et a declaration that  in consideration a be indebt to b by bill and that he promise to deliver he up  the bill S he promise to give he good security by bind for the money and aver  the delivery of the bill the defendant traverse the delivery and on demurrer  adjudge against he because not material and it be not the consideration of the  assumpsit but the promise to deliver be it cro et simile a but cro et the  promise be super loosing of such a sum to do c therefore the thing not  demandable before payment so be cro car so that if here the cause of action do  arise upon the promise before any release make the release subsequent clear  discharge it by not if there be no more in the case modern report and if the  release be what give they cause of action then they shall show a release make  or a tender of it and not general as here that they have perform all of their  side but it be object that although a action have accrue to the plaintiff  immediate upon the promise yet this release shall not discharge it for that  the release shall be take accord to the intent of the party which be only to  discharge the equity of redemption and the general word of it shall be  restrain and qualify by the forgo special word but I answer that after release  the equity of redemption by express word there be in the selfsame clause  general word of all action and demand which I agree be qualify by the special  word and intent of the party and then come the clause in question distinct and  separate from the first release all action and demand and this clause will be  entire useless if they be apply to the first because the first have a general  clause in itself to serve it as a wall or muniment and so stand in no need of  any more roll ab the general word that be restrain by the special word be part  of the same clause and sentence and not as here distinct and separate Mod  suppose a recite in a deed that whereas b owe he ten pound and release thereby  the say ten pound and all action and demand and further proceed and release he  all debt duty action and demand will this last clause be rather entire reject  than extend to any thing but the ten pound and upon this diversity hetley and  Aubrys case be distinguishable from the present case Cheshire contra as to the  want of aver that we have make a release they in their replication show that  we have do it and set it forth and that supply that defect if any for many  time the fault of a declaration may be help by the defendant plea as the want  of a venue by plead a release cro Elizabeth debt upon a bind and it do appear  by the bind that the day of payment be not yet come the defendant plead a  release and find against he and plaintiff have judgement for that by plead the  release he waive the other advantage and Edward c there cite debt by a  executor the defendant plead that the testator have make two executor and that  one of they release to he and issue thereupon find for the plaintiff who have  judgement though the defendant may have modern report abate the action because  he waive that advantage by his plea cro keb vent and this court will take  notice what a equity of redemption be as well as a court of equity of trust  and mortgage Leon vent that the court will take notice of a equitable  consideration and we need not show what our equity of redemption be or how  create for first they request we shall release such a thing to they and it can  be imagine they will do so if we have none indeed if it have appear to the  court that our equity be of no value it will have be the strong against we  though even so there be something to be do a see pordage v coal sand Wyvil v  Stapleton stram Dawson v mire stram boon v air black Rep Jones v Berkeley  dougl Kingston v Preston dougl goodison v nun term Rep duke of saint Alban v  shore h Bl Rep modern report er p by we that will be a trouble to we it will  have be a good consideration of a promise and if in the case quote out of  sander the heir have recite that he be bind by the bind the court will intend  it so and give judgement against he and in all the case that have be put of  the other side it do appear to the court that there be nothing of value or any  pain or trouble to the plaintiff to be the consideration of the promise and  there be a diversity between a thing be appear not to be valuable and its not  appear to be valuable for a recital of it will help it in the one case but not  in the other raym to make a promise good the one party videlicet he that do  promise ought to have some charge or trouble by the performance or the other  some advantage and the word of release be not sufficient to discharge the  promise because it be not in demand at the time of the release for the release  be a condition precedent whereupon the demand do arise to the plaintiff and  therefore the release can not destroy that to which it give birth but suppose  a action do arise upon the mutual promise yet each party have a reasonable  time to perform and perhaps each have time for his life if not hasten by  request and neither be allege here indeed the promise as soon as make be  releasable by the word promise but not by the word action or demand at least  till a convenient time after which be not allege to have be between the  promise and release and it be not absolute necessary the word insist on in  this release must be reject as fruitless without they be extend to release  this demand for it may be the mortgagee may be Accountable to the mortgagor  for some modern report of the profit of the land which may be release by the  word holt chief justice a release of a equity of redemption be a good  consideration for a promise and we can take notice of a equity of redemption  and that it be a valuable thing but suppose it be not a thing valuable and the  case be this a be possess of black acre to which b have no manner of right and  a desire b to release he all his right to black acre and promise he in  consideration thereof to pay so much money sure this be a good consideration  and a good promise for it put a to the trouble of make a release then where  the do a thing will be a good consideration a promise to do that thing will be  so too and though the want of a averment that a release be make will have be  have if demurrer to yet it be now help by go over and plead if one covenant to  do several thing in a certain deed agree on and in the end bind himself in a  penalty for so do and debt be bring for the penalty and show general that he  have do nothing of what be agree on this will he have on demurrer but a plea  over cure it so if one covenant that if I S do such and such thing that be  will pay he so much money I S bring action and say general that be perform all  the thing this will he have on demurrer but Curable by plead over indeed this  be a general distinct clause seem to diversify this case from all the case  before put where the general word restrain by the precedent particular one be  in the same clause with the particular at another day this term after great  consideration the whole court come to one resolution which be thus deliver  holt chief justice we all agree that the promise be not discharge by this  release it be urge at the bar by Mr Cowper that if the plaintiff may have find  a action upon the mutual promise and agreement before any performance on his  part that certain this release will have bar he and the consequence be very  true and necessary if that be the case and by the same reason if he can not  bring a action before such time as he have make a release there be no colour  for the release to bar he for till be make the release in this case if he have  no title to the seven pound then till release there be no right of action and  then they do not lie in demand till release and that a release of all demand  will not release a thing that do modern report not lie in demand at that time  vide cro   hoe case a release to bail in the king bench before judgement  against the principal be not good because till then the cause of action be  uncertain and therefore not demandable so the whole question will be here  whether the plaintiff can have a action modern report er p before the release  and as to that it have be urge that in this case there be mutual promise and  the one promise be the consideration of the other and that then be that bring  the action needs not aver any performance of his side and this likewise will  be a true and necessary consequence if the promise be true but where the one  promise be the consideration of the other and where the performance and not  the promise be it be to be gather from the word and nature of the agreement  and depend entire thereupon for if in this case there be a positive promise  that one shall release his equity of redemption and on the other side that the  other will pay seven pound then the one may bring his action without any  averment of performance but this agreement be not so but that the plaintiff  shall release his equity of redemption in consideration whereof the defendant  be to pay he seven pound so that the release be the consideration and  therefore be executory be a condition precedent which must be aver and whereas  there seem to be a variance in the book upon this learning it will be fit on  this occasion to settle it and I agree the case in hob to be good law for  there be a positive agreement that one shall deliver a cow to the other and  that the other shall give he so much money and therefore the action lie for  either side without performance of his promise but if by the agreement a be to  deliver b a cow and that for it b be to deliver he a horse there the delivery  of the cow will be a condition precedent and therefore ought to be perform  before a can bring his action and upon this diversity the book be reconcilable  Henry pl if a covenant with b to serve he for a year and b covenant with a to  pay he ten pound there a shall maintain a action for the ten pound before any  service but if b have covenant to pay ten pound for the say service there a  can not maintain a action for the money before the service perform and there  be great reason for this diversity for when one promise agree or covenant to  do one thing for another there be no reason he shall be oblige to do it till  that thing for which he promise to do it be do and the word for be a condition  precedent in such modern report case but upon this head some diversity be to  be observe first if there be a day set for the payment of money or do the  thing which one promise agree or covenant to do for another thing and that day  happen to incur before the time the thing for which the promise agreement or  covenant be make be to be perform by the tenor of the agreement there though  the word be that the party shall pay the money or do the thing for such a  thing or in consideration of such a thing after the day be pass the other  shall have a action for the money or other thing although the thing for which  the promise agreement or covenant be make be not perform for it will be  repugnant there to make it a condition precedent and therefore they be in that  case leave to mutual remedy on which by the express word of the agreement they  have depend vide Edward cite in Ughtreds case a where the diversity be take  when there be mutual remedy and not it be thus put in that book sir Richard  pool covenant with sir Ralph Tolcelser to serve he with three esquire in the  war of France sir Ralph Tolcelser covenant in consideration of those service  to pay he so much money and there it be say action will lie for the money  without any service perform but if you look into the book at large you will  find it be upon the diversity which I have take for the case in Edit be  Richard pool covenant with Ralph Tolcelser to serve he with three esquire in  the war of France and Ralph Tolcelser covenant with he to pay he so much money  for the service and it be further agree that twenty mark of the money shall be  pay in England at a day certain before they go for France and the rest by  quarterly payment which may likewise incur before the service and upon action  bring by sir Richard pool it be object that the service be not perform but  there be no room for that objection upon the diversity which I have take the  money by the agreement be make Payable at a day certain before the service be  to have be perform vent covenant that in case a will let b enjoy land for a  certain term of year for the enjoyment he will pay he so much money before the  expiration of the year leo covenant to pay so much money the other make he a    b modern report er p a good estate in such land hold the make the estate to be  a condition precedent and therefore to be aver sand be upon the same diversity  a agreement be to let modern report a house to the plaintiff with certain brew  vessel the plaintiff covenant to pay so much money for it before midsummerday  and here because a day certain be appoint for the payment though no assurance  be make of the house c yet a action lie for the money if a covenant to make a  assurance of land to b who covenant to pay he ten pound in consideration  thereof there be be not bind to pay the money before the assurance make but if  he have covenant to pay the money in consideration of the covenant to make the  assurance he will be liable to a action immediate a second if there be a day  for the payment of the money or do of other act for another and that day be to  be after the performance of the thing for which the promise c be make there if  the agreement be to pay the money or do other thing for or in consideration or  such other word that will make a condition precedent there such thing for the  do or perform of which the other agree to pay the money or do other thing must  be aver to maintain a action and for this sir W Jones the executor of a bring  a action on the case against b declare that in consideration a in his lifetime  do promise to assure certain land to b before Michaelmas next b promise to pay  he so much money for the land so the assurance be to be make before Michaelmas  and the money be to be pay for the land and consequent after Michaelmas for a  have time till Michaelmas to make the assurance and because the assurance be  to have be make first and the money by agreement to be pay for the land though  there be mutual promise yet it be adjudge the action will not lie for the  money without make the assurance first this case as it be there report be  intricate and require consideration to make this construction upon it but upon  examination it be a full authority in point die pl a agree to deliver b a hawk  at midsummer for which he agree to pay he a horse at Michaelmas there if a  hawk be not deliver at midsummer there shall be no horse deliver at Michaelmas  nor any remedy for it Ughtreds case have afford a ground for a variety of  opinion upon this question but such as seem against these diversity lie down  by I shall receive a full answer and in roll ab be several case which have be  urge against I the first be say to have be in Michaelmas term in the seven  year of James the first and it be a charter partite between a and b by which a  covenant to go a voyage and take in several lade at several modern report port  beyond the sea and return with they home b covenant to pay a for all that  voyage one hundred and fortyseven pound at a day whether after or before the  voyage be leave in doubt by the book and there it be adjudge there may have a  action lie for the money without averment of performance of the voyage and  this seem a authority in point against I but first it do not appear there but  that the day of payment be before the voyage perform but a full answer to it  be that there be a writ of error bring and that judgement reverse for want of  a averment vide Bulst roll report the judgement in the common plea in the  seven year of James the first but it seem have not see the reversal thereof  which be in the nine year of James the first two year after as it be in  Bulstrode where it be adjudge that pro totan transfretatione be a condition  precedent and that its be in mutual covenant make no alteration then there be  roll Abr say to be in Michaelmas term in the fifteen year of Charles the first  and it seem also against I in point there be article of a the reason on this  point of the case together with the authority Edward   b vent and sander be  recognize as law by Mr justice buller in the case of terry v Duntze in the  court of common plea Hilary term Geo in which it be determine that if a  covenant to build a house for b and finish it on or before a certain day in  consideration of a sum of money which b covenant to pay a by instalment as the  building shall proceed the finish the house be not a condition precedent to  the pay the money but that the covenant be independent and therefore a may  maintain a action of debt against b for the whole sum though the building be  not finish at the time appoint terry and another v Duntze Bart h Bl Rep to  modern report er p agreement make by a in behalf of b of the one part and c of  the other part where it be covenant by a that b for consideration hereafter  express shall convey certain land to c c on his part for the consideration  aforesaid covenant to pay b one hundred and sixtysix pound and it be adjudge  that the assure the land be not a condition precedent but this case do not  come up to we for there be a express covenant that for consideration hereafter  express b will convey to c and c upon consideration aforesaid covenant to pay  the money and that must be for as much as a have covenant that b shall assure  land for consideration hereafter mention that be that b have covenant to pay  so much money for it be pro consideration predicta and the question be what be  mean by the word pro consideration prd it be not say for consideration of  conveyance of the land but pro consideration prd which must be understand in  consideration of the agreement that b shall convey c for the one covenant for  consideration hereafter mention which must be the covenant for payment of the  money and the other covenant for consideration aforesaid which must be that a  covenant that b shall convey but I must needs say there be another home case  it be also in the time of king Charles the first and it be on mutual promise  to stand to a award between a and b and lie in consideration a on his part do  promise to stand to the award b on his part do promise to stand to it and the  modern report award be make that a shall pay b ten pound in consideration  whereof b shall enter into all obligation to release unto a all action a bring  a action against b for not enter into the obligation accord to the award and  he do aver that he have do all on his part but that b have not enter into the  obligation and the exception be take that there be no averment of the payment  of the ten pound in consideration whereof he be to have enter into the bind  but it be say there need no averment and this be full against I but roll  himself there say the court be divide and cro give a quite contrary report of  the case and say Jones and Berkele hold it a condition precedent against croak  so I rather believe croak who be one of the judge and tell you himself be of a  contrary opinion and as to hay case which be also in roll Abr where above it  be report cro and it have no such point in it these authority therefore be  well answer there be some other scatter authority in the book of this kind but  let we now see the reason of the thing what be the reason that mutual promise  shall bear a action without performance one bargain be to be perform accord as  be make it if be make a bargain and rely on the other covenant or promise to  have what he will have do to he it be his own fault if the agreement be that a  shall have the horse of b and a agree that b shall have his money they may  make it so and then there needs no averment of performance to maintain all  action on either side but if it appear by the agreement that the plain intent  of either party be to have the thing to be do to he perform before his do what  he undertake of his side it must be then aver as where a man agree to give so  much money for a horse it be plain he mean to have the horse first and  therefore he say the money shall be give for the horse and it will be very  dangerous to make every cursory agreement of party to amount to mutual promise  to bear a action without averment of performance and therefore if two meet and  the one have a horse to sell and the other will buy one and they agree on the  price and then part without any earnest or reduce the matter solemnly into  write there though there be no word of condition precedent such cursory  agreement ought not to be admit as evidence of a mutual agreement and it ought  not to pass for a contract but rather for a bare communication vide die style  but if there be a solemn transaction as write modern report as that a will  deliver his horse to b and no time appoint and that b shall pay so much money  to a there if there be not the word for or other word of condition precedent a  mutual action will lie without averment of performance but if it be only a  discourse without the solemnity of write earnest c it ought not to be allow  there be a case in Mod in assumpsit the plaintiff declare that in  consideration that be promise to assign to the defendant his interest in  certain land the defendant promise to pay he hence so much money and aver that  be offer to assign the interest but that matter be not well plead the question  be whether it be necessary to aver performance and hold on the reason of  modern report er p Ughtreds case that it be not and this will be a light to  the reason of north v wile there vide style covenant be between a and b that a  shall bring soldier to such a place by a day certain to be transport and that  b shall attend there then with ship to transport they and both party fail and  the question be whether though a have bring no soldier b have break his  covenant in not be ready with ship and hold that b have break his covenant  though a have not bring the soldier but this differ from our case for there be  two distinct act to be do one be to be ready with the soldier and the other  with ship and the performance of the one do not depend upon the other the do  of the one be not the reward for the do of the other but they be distinct act  and each party to do his part there be also a day appoint and this be not a  hard case for they be mutual act not depend the one on the other but in our  case the money be to be pay for the release and a vast difference and the  seven pound be not to be pay in consideration of make the release the word in  consideration make a condition precedent which till perform do not entitle the  plaintiff to action then the seven pound be not demandable here and consequent  not dischargeable by the general release of all demand another objection be  that the plaintiff have not aver a release give or tender by he as he ought to  have do but here sufficient appear that it be do for he aver performance of  all that be to be do on his side and that general averment though informal and  beside want time and place for which it have be have on demurrer be help by  the defendant pass it over and plead a release whereby he admit the plaintiff  have a modern report cause of action and there be strong case than this in the  book where plead over have help a insufficient declaration h debt upon  indenture in which there be a penalty in which the defendant do bind himself  if he do not perform all the covenant in the say indenture and regular in such  case the way be for the plaintiff to set forth the indenture and to assign  breach of one of the covenant in certain and in debt for the penalty he say  general that the defendant have break all the covenant in that indenture  without show any one in certain the defendant plead a collateral matter in bar  and adjudge the declaration have be have on demurrer but that the plea over  cure it though the breach be double and incertain h and it be so adjudge in  this court in Bernard v Michael a but a full authority be that of Vivian v  ship b though they agree the money award be to be pay before the other be to  enter into the obligation to the plaintiff yet the plaintiff do not express  aver payment but general as here that he have perform all on his side and that  be adjudge good after plea plead so we all agree the judgement ought to be  affirm for there be no money due to the plaintiff till release of the equity  of redemption and therefore none demandable till then and consequent a release  of all demand can not bar it c note in this case Cowper offer this diversity  in relation to mutual promise that where the promise be of a valuable thing to  the defendant there such promise without any performance may be a good  consideration but where the promise be not of a thing valuable but may be a  consideration because a trouble to the party promise there such promise  without a performance can be a consideration because such promise can be a  trouble but per holt chief justice No diversity at all but the case be the  same upon the learning lie down above