case doctor SAmwAys against ELDSLY if a covenant with b to pay so much money  for tithe and to be Accountable for all arrear of rend and b covenant to allow  certain disbursement upon the account a can plead in a action of covenant that  he be ready to account if b will allow he the disbursement for the covenant be  mutual each of they have remedy against the other for nonperformance covenant  the plaintiff declare that by indenture make between he and the defendant  recite that there be diverse controversy between they as well concern the  right title and occupation of tithe arise and renew upon the freehold of the  defendant in t and upon other land hold by the defendant by a lease for year  from the plaintiff under the annual rend of c and concern the arrear of rend  due upon that demise as concern other matter for the determination thereof the  say party do by the say indenture bind themselves in consideration of  twelvepence give to each other to observe the arbitration of all arbitrator  indifferent to be choose between they to arbitrate order and judge between  they de et super to send forward and the plaintiff and defendant mutual  covenant to do several other matter that the arbitrator do thereupon afterward  award and the defendant do covenant with the plaintiff that in consideration  of the plaintiff seal and deliver at the defendant modern request one part of  a lease for year to the award annex for the rend therein reserve that the  defendant shall pay so much money for the tithe that it be also award by the  say arbitrator and the defendant do covenant that he will be Accountable to  the plaintiff for all such arrear of rend tithe and compositionmoney for tithe  as shall be arise and renew upon the say land c accord to such a value per  annum whereof the defendant can not lawful discharge himself and the plaintiff  aver that he have observe all the covenant on his part and that the defendant  have not observe all the covenant on his part and assign for breach that he  have not account with he for all arrear of tithe and compositionmoney for  tithe arise upon the land in c and that be have request he to account which he  have refuse the defendant plead action non for he say that it be true there be  such a indenture as in the declaration be set forth and such a covenant to be  Accountable as the plaintiff have declare but say in eoden indenturd agreatum  to be beyond el to see in advance that the plaintiff shall allow and discount  upon the account all sum of money for parson dinner at the request of the  plaintiff and for his concern lie out and disburse by the defendant and such  other sum which he have direction to lie out and that such a day a preparation  to be et to bring before see el thus far a preparation be to account for all  arrear of rend c if the plaintiff will discount c that such a day the  plaintiff will not and often after refuse and yet do refuse to allow upon such  account all such sum of money as the defendant at the request and for the  concern of the plaintiff have lie out and this he be ready to verify and then  he aver that after c on such a day he do expend several sum of money for the  plaintiff which be just and reasonable to be allow by the plaintiff upon  account make by he to this plea the plaintiff demurrer and the defendant join  in demurrer turner sergeant for the plaintiff this be a bad plea for it be a  rule in all lawbooks that every plea ought to answer the matter which be  charge upon the defendant in the declaration which be not do here modern  because the defendant do neither aver that he do account or confess and avoid  or traverse it which he ought to do after the plaintiff have allege a request  to account and a refusal it be a absolute covenant which charge he to be  Accountable and not conditional if the plaintiff will allow parson dinner c  for it be impossible that the plaintiff can make any modern er p such  allowance till the defendant have account for how can there be a discount  without a account if the plaintiff have tell he before the account that he  will not allow anything upon the account this will not have be prejudicial to  bar he of his action so as it have be before the request for if a man make a  feoff in fee upon condition that if the feoff pay a hundred pound at  Michaelmas the feoff shall be void and before Michaelmas the feoff tell he  that he will not receive the money at that time this shall not prejudice he  because it be no refusal in law the defendant in this case be to do the first  act videlicet to account and when that be neglect by he it shall never  prejudice he who be to do a subseq vent act   Higginbottoms case and the case  of Hallin v lamb   one covenant to make a estate in fee at the cost of the  covenantee the covenantor be to do the first act videlicet to let he know what  conveyance he will make the like case be in this court between Twyford and  Buckley upon a indenture of covenant wherein one of the party do covenant to  make a lease for the life of the covenantee and for two other life as he shall  name and the covenantor be to give possession the breach assign be that the  defendant have not make livery and seize and upon performance plead the  plaintiff do demurrer and upon great debate it be resolve that the covenant be  not break because the plaintiff have not perform that which be first to be do  on his part videlicet to name the life it may be object that these covenant  have a relation one to the other and so nonperformance of the one may be plead  in bar to the other but to that he answer they be distinct and mutual covenant  and there may be several action bring against each other the case of ware v  chapel a style a come up to this point ware be to raise five hundred soldier  and bring they to such a port and chapel be to find ship for which he sty upon  the covenant though the other have not raise the soldier for that can be only  allege in mitigation of damage and be no modern excuse for the defendant and  it be adjudge that this be not a condition precedent but distinct and mutual  covenant upon which several action may be bring this can be a condition  precedent for the defendant plead et beyond agreatum el to see in advance be  that the plaintiff shall discount and reimburse the defendant and here the  word to see in advance be do not make a condition but a covenant Henry pl bro  condition there be another fault in the plea for the defendant aver that the  plaintiff have not reimburse he several sum of money which be altogether  incertain for it do not appear what be due Henry dyer Edward pl Henry pl a but  seys sergeant argue for the defendant that he need not traverse the account as  to the first objection make that the plea be not good because it do not answer  the declaration the rule as to that purpose be general good but then the  plaintiff must tell all his case which if be omit be must then give the  defendant leave to tell where his omission S sometime a thing which belong  proper to another may be plead in bar or discharge to avoid circuity of action  as one covenant may be plead to another Henry pl Henry pl so where the lessee  be to be dispunishable of waste he may plead it to a writ of waste the book  note a difference where the covenant be one or two sentence for in the first  case one covenant may be plead in discharge of another but not in the last  Keilway it be true if the second covenant have be distinct and independent it  can not have be thus plead but in this case it be not say that the covenantor  for himself his executor and administrator do covenant c but beyond agreatum  et to see in advance be so that as it be pen to see in advance be make a  condition and then the sense be I will account if you will discount and if you  refuse to discount I can be charge dyer it be useless labour to make up a  account if the other will not allow what he ought if there be a annuitypro  council expense c and he will not pay the money the other be not to be compel  to give his advice Fitzb annuity Edward annuity the chief justice and the  whole court be of opinion that judgement shall be give for the plaintiff for  arbitration will and act of parliament be to be take accord to the modern  meaning of the party and damage be to be give accord to the merit of the case  in this case the defendant be bind to account modern er p upon request and to  pay what money be due upon the account and it be a impertinent question for  the defendant to ask he to make allowance for parson dinner before they come  to account it be as if a bailiff shall say to his lord I have lie out so much  money and I will not account with you unless you will allow it this be a  capitulation beforehand and be very insignificant by way of discharge they  have each a remedy upon these mutual covenant and theprovisum el agreatum be  do not amount to a condition but be a covenant and judgement be give accord  Ellis justice say he have a manuscript report of the case of ware v chael  which he say be adjudge upon great debate