The defendant, Harvey, contracted, in writing, under date of 27th November, 1817, to convey certain land to the plaintiff “the next Wednesday,” ivhen plaintiff was to pay him $295, and give a note for $25 more, payable in four months. On this contract the plaintiff sued Harvey, and declared against him in case for not making a deed, averring, that he, the plaintiff, was ready to pay the $295 at the day, and to give the note for $25. On the day appointed for trial, but prior to its being called on, the defendant moved the justice for a non-suit, because the state of demand was defective in not stating, that the $295 were tendered by the plaintiff. The justice overruled the motion, and swore the jury, who found a verdict of $30 for the plaintiff.

Hero was certainly an error. The conveyance and the payment for it wore to be done at the same time, and neither party can sue without averring performance or tender on his part. 1 Saund. 320, note 4. Here were neither payment or tender of the money; the plaintiff pretends to neither, he only says he was “ready to pay;” but was Harvey bound in law to trust his word instead of money ? It should have been produced and tendered. Harvey had a right not only to see the money, but to see it was good money, before he gave up his land.

In a higher court, if the defendant had not demurred, the verdict might have cured the defect, but in the court below the demurrer is not used. The defendant stated this defect before the trial came on, and prayed the justice to dismisss the action on account of it.

Let the judgment be reversed.