Hounsford v. Fisher

WRIGHT, J. We think these covenants mutual; the acts tobe done are simultaneous, and the act of each is the entire consideration for the act of the other. In such cases, neither party can sue without first performing, or offering to perform, his part of the covenants: (1 Saund. 320; Doug. 684, 91; 4 T. R. 761; 6 T. R. 665; 2 John. 207; 5 John. 145, 179; 10 John. 203, 209, 266; 3 John. 146; 1 Caines 45; 6 Cowen 624; 12 John. 209; 4 Day 313; 6 Bin. 24; 2 H. Black. 123; 5 East. 107; 8 Taunt. 62; 5 T. R. 409.) The plea is therefore bad, but as the declaration has the same defect, the ■demurrer must be overruled. Plaintiff had leave to withdraw and amend.