case smith against Cudworth if a covenant to transfer stock to b and b  covenant to accept the same in the usual manner and at the same time to pay  the money for it it be not necessary for a in a action of covenant to allege a  actual transfer but if he allege that he give b notice that he be ready to  perform his covenant and offer to transfer the same it be sufficient for the  covenant be mutual b be liable for not perform his part cy pres by demand a  transfer and be ready to accept the stock although a do not perform his  covenant by transfer it SC holt covenant on a indenture that in consideration  of two thousand two hundred and fifty pound to be pay to the plaintiff as  afterward mention the plaintiff covenant to transfer to the defendant his  executor or such as he shall appoint on the that of February follow thirty  share in the stock of the linen corporation and the say Cudworth covenant that  he his executor administrator or assign shall accept the same in the usual  manner the say that day and eoden tempore solvent the money aforesaid the  plaintiff aver that upon that day he be ready and offer to transfer accord to  the usual form and thereof give the defendant notice that the defendant do not  then accept nor appoint any person to accept the same nor then or at any time  afterward pay or cause to be pay the shower KB two thousand two hundred and  fifty pound but the say stock to accept do then and there refuse et such to  break off c the defendant plead that the usual manner of transfer be by write  enter in a book for that purpose keep under the band of the person transfer  and the usual manner of accept it by write enter in the same book after such  transfer declare a acceptance that the plaintiff do not transfer accord to  that or any other form by reason whereof the defendant can not accept et hoc a  preparation be verify the plaintiff demurrer Mr Northey this be no plea for  they be mutual covenant and each have his remedy over the defendant ought to  have tender his money and demand a transfer a and the case of carter v tailor  here the last term be the same in effect with this the like covenant with this  about eastindia stock and the defendant plead that no transfer can be but to a  merchant and freeman of that company and that he be neither and that the  plaintiff have not transfer accord to the indenture aforesaid and the usage of  the company and judgement for the plaintiff though the declaration be as here  only with a a preparation to be et to bring before transfer c I argue e contra  that the breach here be a nonacceptance and not a nonpayment accord as it be  in carter case then though they be mutual covenant yet one be dependent on the  other in the nature of the thing and the first act be to be do by the  plaintiff their declaration be ill because they have not aver a performance of  their part if it appear upon the whole contexture of the deed or upon the  record before you that the intention of the party be for we to have a transfer  first or that it must be so accord to the natural necessary course of thing  then they have no cause of action now by their demurrer they have confess the  usual form for transfer to be as we have allege beside in that declaration  they allege not any transfer at all now the nature of the thing bespeak the  necessity of a transfer first we be to accept the thirty share transfer it can  be no other if they be to do the first act then we have not break our covenant  if the plaintiff default disable we from do our part that be a good cause in  the first place he be bind to transfer by his covenant without any demand from  we because he have undertake by such his covenant to do so Fretivil v Molinex  cro b the judgement be stay SC Mod a Mod   cro James comb sand shower KB er p  James chapman case cro car then no demand be necessary to enforce a transfer  he ought to have transfer and aver it do before he can charge we with a  nonacceptance the case shower KB of carter v tailor be different for there the  breach be nonpayment of the money and the money may have be pay though no  transfer have be make and then a action give for not transfer but here the  gist of his breach be nonacceptance and that can not be but upon a transfer  suppose he come to York to we and say he will transfer and we tell he we will  not accept this can not be a refusal to accept because there be nothing to be  accept but the thing which be to be transfer and consequent it can be accept  till transfer suppose tenant for life covenant with a reversioner to surrender  his estate to he by deed or general and the reversioner covenant to accept in  a action of covenant against the reversioner will it be enough to say that he  offer and be ready to surrender I do agree that the word in consideration  thereof will not make a condition precedent sand in case the first be a  negative covenant because the one require a continue performance and the other  attach present but where both be capable of observance immediate or at the  same time as Brocass case Leon Lord of a manor covenant to assure the  copyholder in consideration of that covenant perform promise to pay no action  lie for nonpayment till assurance make now though in that case it be say in  consideration content performat yet here it quinches for the nature of the  thing imply it it be general true where there be mutual remedy there be no  need of aver performance on the plaintiff part otherwise where the fact to be  do be dependent each on the other as here but per curian our plea be deem idle  and the declaration good judgement for the plaintiff and for the plaintiff see  the case of Bragg v nightingale style b