
    HOUNSFORD v. FISHER.
    Covenant — mutual covenants — demurrer.
    If one contracts for the purchase of articles to be thereafter delivered, for which he agrees to pay, &c. the covenants are mutual, and either party wishing to sue, must perform, or tender performance on his part.
    Where the plaintiff demurs to a plea which is bad, and his declaration is bad also, the judgment will be against him.
    Covenant, on a contract by which Fisher agreed to deliver Hounsford on the 17th January, 1832, four stallions, Sir Alfred, Robin Redbreast, Friendly Tiger, and Black Fox, for which Hounsford agreed to make Fisher a déed for the exclusive right to make and vend the revolving worker, in certain counties, and the parties bound themselves in a penalty of $700 to perform the contract.
    Plea, that Fisher on the day named in the contract, was ready at the place and ready to deliver the horses on receiving the deed, but the plaintiff did not deliver a valid deed.
    To this plea there is a general demurrer, which is joined.
    
      Starr, for the plaintiff)
    insisted, that the only question was, whether the covenant to deliver the horses depended upon tbe conveyance of the patent right, or they were independent covenants. He cited 5 Wend. R. 496; 1 Saund R. 320, n. 4; 2 Sel. N. P. 37S; 2 II. Black. 389; 2 John. R. 272; 10 John. R. 203; 6 Cowen R. 29S; Doug. 690.
    
      
      Fox, contra,
    cited Doug. 686, 691; 1 T. R. 645;-6 T. R. 668; 10 John. R. 205; 1 O. R. 17,18, 341; 1 Pet. R. 465; 4 T. R. 761; 12 John. R. 209; 5 Cowen R. 405, 6; 2 John. R. 272, 387; 2 Hy. Blk. 389; 2 B.fy P. 447; 5 John. R. 182; 6 East. R. 203; 6 Cowen R. 296.
   Wright, J.

We think these covenants mutual; the acts to be done are simultaneous, and the act of each is the entire consideration for the act of the other. In such cases, neither party can sue without first performing, or offering to perform, his part of the covenants: (1 Saund. R. 320; Doug. R. 684, 91; 4 T. R. 761; 6 T. R. 665; 2 John. R. 207; 5 John. R. 145, 179; 10 John. R. 203, 209, 266; 3 John. R. 146; 1 Caines’ R. 45; 6 Cowen R. 624; 12 John. R. 209;. 4 Day R. 313; 6 Bin. R. 24; 2 Hy. Blk. 123; 5 East. R. 107; 8 Taimt. R. 62; 5 T. R. 409.) The plea is therefore bad, but as the declaration has the same defect, the demurrer must be overruled.

Plaintiff had leave to withdraw and amend.  