The opinion of the Court was by
Weston C. J.The acts to be done by the parties respectively were, by the condition of the bond, to be concurrent. In such case, the plaintiff cannot maintain an action, without proving a tender on his part, unless it is expressly waived by the defendant, or excused by his disability. Brown v. Gammon, 14 Maine R. *327276. No tender was proved, and no facts appear in the case, which would dispense with its necessity.
Exceptions overruled.