brown case John STAPLETON Plaintiff lord SHELBURNE Defendant in error that  April Mews dig three a contract with b for the sale of pound south sea stock  for pound to be pay on or before the day of shut the transfer book in order to  make the Christmas dividend the money not be pay a bring his action upon the  covenant and in his declaration allege that he attend at the SouthSea house  for the space of a hour before the shut of the book and be ready to transfer  the stock to the defendant but that he be not ready to receive it on a  demurrer judgement be give for the defendant the plaintiff not have make a  sufficient tender of the stock Mod viner vol p can vol p note to can in  Trinity term a action of debt for pound be bring by the plaintiff against the  defendant in the court of common plea and the plaintiff by his declaration set  forth that by deed date the that of September it be witness that he have sell  the defendant pound SouthSea stock and covenant that upon the tender and  payment by the defendant of the sum of pound on or before the day of shut the  company transfer book in order to make the Christmas dividend he the plaintiff  will transfer to the defendant the say pound SouthSea stock and permit he to  receive all future dividend and advantage which shall be allow by the company  on that account and the defendant in consideration of the premise covenant  that he will upon or before the say day of shut the company transfer book in  order to make the Christmas dividend accept or cause to be accept the say  pound stock from the plaintiff and then also pay therefore hence the sum of  pound provide that if the defendant shall refuse to accept and pay for the say  stock it shall be lawful for the plaintiff to dispose of it at the then market  price and out of that money pay himself the say pound return the overplus if  any to the defendant but if the money arise by such sale shall prove  insufficient to satisfy that sum then the defendant be to make good the  deficiency to the plaintiff upon demand and for the due performance of this  agreement each party bind himself to the other in the penal sum of pound that  the plaintiff have true perform all the covenant and agreement in the say deed  on his part to be perform but that the defendant have not perform the  agreement on his part that the company transfer book continue open till the d  of December and then be shut in order to make the Christmas dividend of which  the defendant have notice that the plaintiff for the space of a hour before  the shut of the say book be at the company office call the SouthSea house and  be all that time brown er p ready to transfer the say pound SouthSea stock to  the defendant and offer so to do and to permit he to receive all the dividend  and advantage allow by the company on account thereof after the date of the  say deed but the defendant or any on his behalf be not there in any part of  that hour to receive the transfer of the say pound brown stock that the  defendant at any time after make the say deed or before the day of shut the  say book or upon that day do not tender or pay the say sum of pound to the  plaintiff or any part of it although the plaintiff be ready all that time to  transfer to he the say pound stock the plaintiff then aver that on the say d  of December after the shut the say book he sell the say pound stock at the  then current market price for pound and no more and receive that sum towards  satisfaction of the say pound and then request the defendant to pay he pound  to make up the deficiency of the say pound accord to the intent of the say  deed but that the defendant have not pay the say pound whereby the plaintiff  be entitle to recover the say penal sum of pound to this declaration the  defendant plead that after the sale of the pound stock he feoff the plaintiff  of acre of land in nyton which he accept in full satisfaction of the say sum  of pound in the declaration mention the plaintiff demurrer to this plea and  for special cause of demurrer show inter alian that the defendant have not  make a full defence the defendant have join in demurrer the case be argue in  the same term before the court of common plea when the only question be upon  the declaration whether the plaintiff have entitle himself to the pound and  that court be of opinion that he have not for as the money be to be pay for  the stock it be necessary for the plaintiff to show that he have make a legal  tender of the stock before he can claim the money which he have not do in this  case for he only say that he be at the SouthSea office for a hour before the  shut of the book and then and there offer to transfer the stock to the  defendant whereas he ought to have set out the manner of transfer stock and  the time and place when and where it be usual transfer which the court can not  take notice of judicial and therefore as it do not appear upon the record that  the tender be a sufficient tender judgement be give for the defendant  whereupon the plaintiff bring a writ of error in the court of king bench and  upon argue the case there in Michaelmas term the court be of opinion that the  covenant be mutual and independent and though the tender be not well allege  yet the plaintiff be entitle to the money because he be not under a necessity  of make a tender and therefore reverse the judgement of the court of common  plea and give judgement for the plaintiff the defendant therefore bring a writ  of error in parliament to reverse this latter judgement and on his behalf it  be argue c Wearg I comens that he have agree to pay the money for the stock it  ought to have be transfer or at least tender to he before he be oblige to pay  the money that the plaintiff have not sufficient allege a tender of the stock  to the defendant for the court of law can take no notice of any fact but what  be allege upon the record but the record do not allege either that the usual  brown place for transfer stock be the SouthSea house or the usual time before  the shut of the book and consequent it do not appear to the court that a  tender at that place and time be a good tender that although it shall be admit  that where a contract or agreement be make and one party undertake general to  perform his part and the other party in like manner to perform his each party  may have a remedy against the other without any special averment that the  plaintiff have do what be to be perform by he yet on the other hand it must be  admit to be the know and settle resolution of law that where one side  undertake to do a thing in consideration of or upon the previous performance  of what be to be do by the other this be in the nature of a condition  precedent and he who be to do the previous act can maintain a action against  the other for his failure without aver that he have perform what ought to be  previous perform by he if therefore a proper and legal tender of the stock be  necessary in order to entitle the plaintiff to the money if such tender can  not otherwise judicial appear than by full and sufficient averment and if the  brown er p averment in this declaration be in itself defective and  insufficient as be agree by both court it be hope that their lordship will not  enforce a action of this nature beyond the state and prescribe rule of law but  will reverse the judgement of the court of king bench and affirm that of the  common plea on the other side it be contend p York n fazakerly that the  article contain mutual covenant and therefore it be not necessary for the  plaintiff in the action to allege either a transfer or tender to entitle he to  recover for the non payment of the money that not be a condition precedent to  the payment thereof that suppose it necessary to allege a tender such tender  be sufficient allege but if not the defendant in the action have aid that  defect in the declaration by plead a collateral matter whereby he have put  himself upon a defence which amount to a full admission of a tender and  therefore it be hope that the judgement of the court of king bench will be  affirm with cost but after hear counsel on this writ of error it be order and  adjudge that the judgement give in the court of king bench reverse the  judgement give in the court of common plea shall be reverse jour vol p