The covenant is one to convey before the 1st of May/and to pay upon the execution of the deed, and imposes upon the party suing, the obligation to perform, or to tender a performance before he acts. In cbvenants like this, where the acts to be done are simultaneous, neither party is compellable to part with his rights, until the other performs; but each must be ready and willing, and offer to perform before he can sue:

The averment in the declaration of the plaintiff’s payment on the 1st of May, will not avail him, even on demurrer; it is not an averment of performance, and shows no title in the plaintiff to recover. The covenant is to pay before the 1st of May; an averment of payment on the 1st of May, is an averment of payment after the stipulated time. This objection is fatal to the special count.

The plaintiff cannot recover on the common counts, because there is an outstanding subsisting contract, which must be first put an end to. If he would sue, he should offer to perform, and if that is refused, his right to sue would follow.

Leave was asked and given to the plaintiff to amend.