case smith against shelberry if a agree to assign a lease to b and b agree to  pay hence such a sum of money and there be mutual promise it must be aver in a  declaration by a to recover the money that he assign the lease S C Freem post  Lut sand lev Comyris assumpsit the plaintiff declare that he be possess of a  term of eighty year and it be agree between he and the defendant that he shall  assign all his interest therein to the defendant who hence shall pay two  hundred and fifty pound and that he promise that in consideration that the  plaintiff at his request have likewise promise to perform all on his part that  he will also perform all on his part and then set forth that the defendant  have pay a guinea in part of the say two hundred and fifty pound and that he  videlicet the plaintiff to bring before see to assign the premise by indenture  to the defendant which be write and seal and will have deliver it to he but he  refuse and assign the breach in nonpayment of the money to which the defendant  demurrer Baldwin sergeant for the defendant say that this be not a good  declaration because the assignment ought to precede the payment and that it be  not a mutual promise neither be the to bring before see well set forth but  this be a condition precedent on the plaintiff side without the performance  whereof modern no action will lie against the defendant a see Ughtreds case    a because it be apparent by the plaintiff own show that the money be not to be  pay till the assignment make for the plaintiff be to assign and the defendant  hence which be as much as to say pro assignation be to pay the money like the  case in dyer a assumpsit against the defendant that he promise pro twenty mark  to deliver four hundred weight of wax to the plaintiff the pronoun pro make  the contract conditional but Pemberton sergeant for the plaintiff hold the  declaration good and that it be a mutual promise and that the plaintiff need  not aver the performance for in such case each have remedy against the other  and it be as reasonable that the plaintiff shall have his money before he make  the assignment as that the defendant shall have the term assign before he pay  the money b hill v thorn post ld ray but Lutw contra b and of that opinion be  the court only Atkins justice doubt Ellis justice cite a case adjudge in the  king bench which be as he think very bare videlicet a assignment be make  between a and b that a shall aise soldier and that b shall transport they  beyond sea and reciprocal promise be make for the performance as in this case  that a who never raise any soldier may yet bring his action upon this promise  against b for not transport they which be a far strong case than this at bar c  ware v chapel style see also Lutw c it be agree here that the tender and  refusal have it be well plead will have amount to and have be equivalent with  a full performance but the modern er p plaintiff have not do as much as he may  for he shall have deliver the indenture to the defendant use and then have  tender it but judgement be give for the plaintiff a but see the case of Thorpe  v Thorpe salk where this resolution be deny to be law a