coke b UGHTREDS case Trin Elizabeth in the common plea a bring a writ of  annuity against b son and heir of c and declare that c that do you Elizabeth  tam pro affection c how pro assured c put back in eoden a by his write do  constitute a captain of the fort and castle of n for the life of the say a and  give he authority to appoint a master gunner c and further for the maintenance  of a and the master gunner c for the defence of the castle by the say write do  grant for he and his heir to the say a during his life a annuity of c by force  of which a be seize of the office and annuity of his life c die Elizabeth and  the defendant his son and heir for year before the writ bring withhold the  annuity c and upon special demurrer that it do not appear by the declaration  that c have power to grant the office and that a have not aver that he have  exercise the office nor that he do appoint a gunner c the court of c b give  judgement for the plaintiff and upon error bring that judgement be affirm and  it be resolve that in all case where a interest or estate commence upon a  condition precedent be the condition or act to be perform by the plaintiff or  defendant or b any other and be the condition in the affirmative or negative  the plaintiff ought to show it in his declaration and aver the performance  thereof but when the interest or estate passes present and vest in the grantee  and be to be defeat by matter ex post facto or condition subsequent be the  condition or act to be perform by the plaintiff or by the defendant or by any  other and be the condition in the affirmative or negative the plaintiff may  declare general without show the performance thereof S C jenk cent hard Brownl  Doct pl Bulstr palm Henry Ughtred Esq bring a writ of annuity against William  marquis of Winchester son and heir of John marquis Winchester and declare that  the say John marquis of Winton Dec Elizabeth tam pro good et popular affection  et benevolence quas to bear about towards the same Henry how pro assured et  faithfulness reposit in eoden Henry by his write do constitute and authorize  the say Henry to be captain of the fort or bulwark and castle of Netley alias  Letley in the county of Southampton to have and exercise the say office of  captain c during the life of the say Henry and give he authority during his  life to nominate and appoint from time to time a master gunner one porter and  six soldier c and further by the say write the say John marquis do grant pro  consideration preceding et pro good manutentione Self Henry et instructress  tormentor et sex soldier in defension et tuition castle predicti for he and  his heir to the say Henry during his life a annuity of c at the Feast of saint  Michael and the annunciation of our coke report a er p lady by equal portion  by force of which he be seize of the say office and of the say annuity for his  life and afterward that Nov Elizabeth the say John marquis die and the  defendant his son and heir for year before the writ bring do withhold the  annuity which in all amount to l c on which declaration the defendant do  demurrer in law and accord to the statute do show diverse cause because it do  not appear by the declaration that the say John Lord marquis have power or  interest to grant the say office and also because the plaintiff have not aver  that he have exercise the say office nor that he do appoint a master gunner  porter or the soldier and diverse other cause be show but notwithstanding  these judgement be give by the justice of the common plea for the plaintiff  whereupon the marquis bring coke a a writ of error and diverse error be assign  but all be overrule by the court but one and that be that the plaintiff in the  writ of annuity have not aver in his declaration that he have exercise the say  office c but after many argument and consideration of all the book in which as  it seem prima fancy there be a diversity of opinion it be resolve that the  declaration be good without such a hard hob jenk cent Doct pl e a averment and  their reason be that in all case where a interest or estate do commence upon a  condition precedent be the condition or act to be perform by the plaintiff or  defendant or by any other and be the condition in the b Doct pl Plowd lev hard  b affirmative or negative there the plaintiff ought to show it in his  declaration and to aver the performance thereof for there the interest or  estate do begin in he by the performance of the condition and be not in he  till the condition be perform but otherwise it be when the interest or estate  passes present and vest in the grantee and be to be defeat by matter ex post  facto or condition subsequent be the condition or act to be perform by the  plaintiff or defendant or by any other and be the condition in the affirmative  or negative there the plaintiff may declare general without show the  performance thereof and it shall be plead by he who will take advantage c Doct  pl c of the condition or matter ex post facto for every one ought to allege  that which d   b Plowd b d make for he and which be for his avail and none  shall be force to allege that which be against himself and it may well be that  the condition subsequent or matter ex post facto stand upon many part as in  the case at bar it happen to rehearse all which will be tedious when issue  shall be take but upon one of they and the defendant may plead any one of they  which he please in bar of the action and so the plead will be more short and  Compendious which be the most commendable if it be sufficient here in the case  at bar the condition be to be perform by the plaintiff himself and therefore  the case be the strong but because the plaintiff by the say grant be present  seize of the say office and annuity for the term of his life which ought to be  defeat by the not use the say office or other subsequent matter the subsequent  matter make against he and therefore shall be plead by the defendant and  therewith agree h e cro arg hard Brownl Doct pl Br count Plowd b b b a palm  hob Jones e I a b in a writ of annuity against the successor of a prior on a  grant make by his predecessor until he be advance to a benefice of holy church  and the plaintiff declare general without say that he be not yet advance and  for that cause exception be take to it and notwithstanding the declaration be  adjudge good because the condition go in defeasance of the annuity which ought  to be show on the defendant part also this be a annuity which begin before the  condition shall be perform which performance shall come on the part of the  grantor and not like where the condition be f Doct pl e pl per Wilby f that if  the grantee do such a thing that then he shall have such a annuity now if he  will demand coke b it he ought to allege in facto that the condition be  perform for by the performance thereof the annuity do begin and so be the  difference by all the justice and these be the word coke report a er p of the  book so it be say in Colthirsts case pi Com b if I grant to one that when he  shall be promote to a benefice that he shall have a annuity if he demand the  annuity he ought first to show that he be promote to a benefice but if a  annuity be grant to one until he be promote to a benefice there he shall have  a writ of annuity and shall not show that he be not yet promote to a benefice  because the annuity do precede and the promotion be subsequent and go in  defeasance of the annuity and therefore it ought to be show on the contrary  part but when a Doct pi Lutw a a man be only entitle to a action and the  action lie not if the condition or consideration be not perform there the  plaintiff in his declaration ought to show the performance for it amount to a  condition precedent because the action arise on the condition or consideration  perform as the book in b Br count e a palm Bulstr Poph Doct pi b h b suppose I  retain c Doct pi Popham jenk cent c a man to go with I to Rome for S here by  the go the cause of the duty first arise in which case if he bring a action of  debt for it in his declaration he ought to declare that he be there otherwise  the declaration shall abate so it be if I d hob d retain one to serve I for S  by the year for here by the consideration perform the duty arise so that it be  in the nature of a act precedent and so be the opinion of the whole court in  the say book but the in e Doct pi Bulstr Popham palm roll sand lev e case e be  affirm for good law where it appear that indenture be make between sir r pool  Knt of the one part and sir r Tolcelser of the other part by which sir Ralph  do covenant with sir Richard to serve he with three esquire of arm in the war  of France and sir Richard do covenant therefore to pay he mark in that case  each party have equal remedy one for the service and the other for the money  and therefore in debt for the mark he may choose either to declare in general  or special at his pleasure by the rule of the court a the report of the case  Edward in the text above be incorrect the report be this sir Richard pool  covenant with sir Ralph Tolchester to serve he with three esquire in the war  of France and sir Ralph covenant with he to pay so much money for the service  and it be further agree that half the money shall be pay in England on a  certain day before they go for France and the rest by quarterly payment and  the case be determine upon the rule that if a day be appoint for payment of  money or part of it or for do any other act and the day be to happen or may  happen before the thing which be the consideration of the money or other act S  to be perform a action may be bring for the money or for not do such other act  before performance sergeant William note l pordage v coal sand where see full  what covenant be independent and what dependent a also when a interest do pass  present and be to be defeat by matter ex post facto yet if it appear to the  court by matter in law that the action shall not be maintainable without show  the performance of the condition or consideration there the plaintiff ought to  aver it for the maintenance of his action as in h the case be Richard Abbott  of Chester grant to John brewin Esq by his deed without the consent of the  convent a yearly rend of S out of his monastery pro council his eid b abbey et  f Doct pl f to come together the same loci expense et imposterum impendend the  say r abbot die and John brewin bring a writ of annuity against the successor  and aver that he have give to the say r recently abbey et to come together  council smum at W in negot house prd ritual ad prficuum ejusd house and Prisot  and the whole coke a court hold that the action be not maintainable against  the successor without such a jenk cent Doct pl a averment for the action be  not maintainable against the successor for any contract or grant make by the  abbot only without covent unless the effect or consideration thereof come to  the profit of the house and that such general averment coke report b er p be  good for it will be too long to show all the cause special and therefore  against the successor he ought to take such averment b Cr Elizabeth Doct pl b  but in a action against the abbot himself who make the grant it be not  necessary to take such averment as it be agree there by the whole court and so  by these difference between a interest or estate vest and which be to be  divest by condition or matter subsequent and a condition or matter which  precede the estate or interest between a thing in action which in judgement of  law be to commence on a condition or consideration precedent and interest or  estate which begin present when equal remedy be give to both by reciprocal  covenant when by matter apparent the plaintiff action shall not be maintain  without averment although it be in the case of a estate or interest vest you  will the better understand your book which seem prima fancy to disagree c Br  count Br annuity Doct pl c e or b d hard Doct pl d e a e b h b h b dyer  Elizabeth in avowry and Elizabeth dyer in debt and note the say Ughtred have  judgement in the common Pleas Quodpredictus Henry recupere versus prfatum nunc  marchionem yearly payment To give back give notice of or fix a day et  arreragia the same so long ante diem impetrationis short catalog original Self  Henry how postea assault et financial loss shall occasion subtractionis awnui  To give back predict ad ten libras eiden Henry ex assent his per curian hic  adjudicate queen indeed arreragia et financial loss in toto see moisten ad  balance et predictus nunc marquis in pity