case lea against Exelby in a action upon mutual promise videlicet that one  party will pay a sum of money and that the other super loosing ind will  surrender a lease the declaration must state a tender of the money by the  plaintiff and a refusal of it by the defendant sand assumpsit whereas the  defendant be possess of such a lease for year the inheritance be the plaintiff  in consideration the plaintiff promise to pay unto he such a sum of money such  a day and place that the defendant promise super a say vide will mary c Ann c  Ann c Geo c croak Elizabeth er p loosing ind to surrender unto he his lease  and allege that he at the day and place tender the money and that the  defendant have not surrender his lease the croak Elizabeth defendant plead non  assumpsit and find against he and it be move in arrest of judgement that the  defendant be not to make the surrender but upon the payment of the money or a  express tender and refusal and the plaintiff here have allege quod to bring  before but he say not that the defendant refuse which be material and issuable  and he may have take issue upon the refusal if it have be allege and although  he have plead non assumpsit yet the declaration be ill in substance the  defendant may well take advantage thereof coke attorneygeneral move that the  declaration be good and there need not any tender and refusal to have be  allege for it suffice to allege that in consideration he assume to pay such a  sum the defendant assume to surrender so there be a assumpsit against a  assumpsit it have be well enough but all the court hold that if the promise  have be in consideration he assume to pay such a sum that the defendant have  assume to surrender that have be sufficient for then he be to make his  surrender and he ought to take his remedy against the other for the  nonperformance of his promise but here it be that he assume to pay and the  other assume to surrender it upon the payment so as he will not trust to his  promise but when he have pay he will then surrender it and in the fir saint  case he need not allege the performance of the promise but here in this he  ought and when he say qubd to bring before and say not that the other accept  it or refuse it his allegation of the tender be not to any purpose for he  shall never say qubd to bring before only but he you he to plead further that  none be there to receive it or that he refuse ought to allege payment and here  it be matter of substance for want whereof the declaration be not good  wherefore it be adjudge for the defendant and afterward coke say that  Willenhalls case be adjudge that tender without allege a refusal be not good