case Shelburne against Stapleton S c ante S c stram S c bro p c S c viner S c  viner this be a action bring for a penalty contain in certain article of  agreement wherein the plaintiff covenant that on payment of thirteen hundred  pound to he modern report er p by the defendant on or before the shut the book  for the Christmas dividend be the plaintiff will transfer upon tender or  payment c and the defendant covenant to receive so much stock c and to pay the  money c on or before the transferday on the penalty of so much c and it be  further agree that upon any default in the defendant it shall be lawful for  the plaintiff to sell the say stock at the marketprice and to retain the say  sum of thirteen hundred pound and if there be any surplus he the plaintiff be  to pay it over to the defendant but if the say stock shall be sell at a low  rate than will satisfy that sum then the defendant be to make up the  deficiency and now upon a action of debt in the common plea the plaintiff  declare and set forth this agreement and that on such a day before the shut  the book he be at the SouthSea house ready to transfer a d then and there  tender to transfer and stay there till the shut the book and although he have  perform all on his part the defendant be not there nor anybody for he to  accept the say tender or to pay the money whereupon be sell the stock for  three hundred and thirtytwo pound that be the marketprice and assign for  breach of this agreement that the defendant have not pay the deficiency so  that he the plaintiff be entitle to recover the penalty mention in the say  article the defendant plead in bar that he make a feoff of land to the  plaintiff in satisfaction of the principal sum after the penalty be forfeit  upon a demurrer to this plea the defendant have judgement in the common plea  and now upon a writ of error bring in the king bench it be insist for the  defendant in error that this judgement be give for error in the declaration  for the plaintiff in the original action have not lie a sufficient breach of  this agreement which be to transfer the stock on or before the shut of the  book and that the defendant superinde be to pay the money now the plaintiff  have set forth that the book be open to the twentythird of December and modern  report that he on that day and hour before the shut the book at the SouthSea  house tender to transfer the stock but do not aver that to be the usual place  of tender so that if no certain and usual place be assign for a tender it must  be make to the person himself unless the nature of the thing do ascertain the  place now if a tender be not necessary then another question will arise  videlicet whether those be mutual covenant or not for if they be then it must  be admit that each of the party may maintain a action without allege the  performance on his part for if one covenant to do such a thing and the other  covenant to do another thing each of they may have his mutual action but that  be not this case for here the second thing to be do so entire depend on the  first that there be some precedent act to be do to entitle the plaintiff to  such second thing and in such case be must show that he have do all thing by  he to be do before he can bring his action for not do the other thing and so  be the case of Thorp v Thorp Lutw see vent sand a which be a action on the  case on a special agreement by which the plaintiff agree to release the equity  of redemption oh f a mortgage and all sum of money and demand whatsoever and  in consideration thereof the defendant agree to pay seven pound c and mutual  promise be lie and the plaintiff aver performance on his part and that the  defendant have not pay the money the defendant plead in bar that after the  promise the plaintiff have release all demand the plaintiff crave oyer of the  release which be of the equity of redemption and of all action and demand and  then demurrer to the plea and it be insist to maintain the plea that the  plaintiff have lie mutual promise in this declaration may bring a action for  the money before this release be execute and if so then the release be a good  bar to the action which be very true in some case where mutual promise be lie  but not in this because the release be part of the agreement videlicet it be  agree that the plaintiff shall execute a release c and it be upon that  consideration that the defendant agree to pay the seven pound therefore the  release be to precede and until that be execute the plaintiff have no cause of  action therefore it will be absurd to say that the release shall discharge  that very duty which it create so in the principal case the plaintiff covenant  that he will transfer the modern report er p stock on payment of so much money  on or before the shut the book c and the defendant modern report covenant to  receive the transfer and to pay or cause to be pay adtunc hence so that he be  not to pay the money until a actual transfer or a lawful tender to transfer  therefore the tender be in nature of a condition precedent and be absolute  necessary in this case and if that be not well lie in the declaration the  plaintiff can have no cause of action it be true where the covenant be mutual  a action will lie for either of the party without aver performance on his part  though one be the consideration of the other and though pro or in  consideration c be in the declaration but that be not this case for here the  defendant agree to accept the transfer of the stock and adtunc hence to pay  the money so that the plaintiff can maintain a action unless the stock be  transfer or the tender to transfer be well lie in the declaration beside he  shall have lie a special performance on his part and not by such a general  allegation as although he have perform all which be to be do on his part for  the action will not lie without allege a special performance to which it be  answer that though the averment of performance be general yet the plead over  of a collateral matter have make that general allegation good it be have only  in form beside here be a certain time appoint for the performance of this  agreement on the defendant part videlicet on payment of thirteen hundred pound  c on or before the shut of the book for the Christmas dividend and the  defendant agree to accept so much stock and to pay the money now if either of  the breach be well lie videlicet the nonacceptance of the transfer or the  nonpayment of the money the plaintiff be entitle to this action but it be far  agree that upon any default in the defendant it shall be lawful for the  plaintiff to sell the stock and if the money arise by such sale will not  satisfy the say thirteen hundred pound then the defendant will make up the  deficiency if all the rest be out of the case the plaintiff be entitle to sell  the stock and to maintain this action against the defendant in not pay the  deficiency accord to his covenant the court the case be thus a action of debt  be bring for a penalty mention in article of agreement c in which the  plaintiff declare that by indenture c testatum to be that he sell SouthSea  stock to the defendant and covenant to transfer the same before the shut the  book for modern report the Christmas dividend and that the defendant covenant  to receive and pay for the say stock before that time but if he do not then  the plaintiff may sell it and if the money arise by such sale will not make up  thirteen hundred pound then the defendant agree to supply the deficiency for  which the action be now bring it be object that by this agreement the  plaintiff be to transfer the stock which the defendant agree to receive so  that unless the stock be actual transfer or a lawful tender make to transfer  it the defendant be not bind to pay the money and it be argue that this be not  a lawful tender because the plaintiff set forth that it be make at the  SouthSea house and do not aver that that be the usual place to make such  tender but yet the plaintiff be entitle to this action because these be mutual  covenant and either party may maintain a action for nonperformance it have be  likewise object that the money be not to be pay until a transfer be make of  the stock and a acceptance of that transfer but this be a wrong construction  of the covenant for he be to pay the money before the shut the book for the  Christmas dividend and not on the acceptance of the transfer for otherwise it  will be in his power to pay or not to pay which will be inconsistent with his  covenant therefore in construction of this covenant the intention of the party  be to be a guide and so far to govern as not to make the agreement repugnant  in itself and here the intention be plain that on nonpayment of the money the  plaintiff may have this action beside the time of enter into this covenant be  to be consider and that be when the stock become a uncertain estate as it be  then therefore the party agree to have the money Payable first the judgement  of the common plea be reverse and the judgement of the king bench be reverse  in the house of lord modern report er p