The question is whether the agreement of the 20th of February, 1837, is such “ an instrument of writing for the payment of money” as entitles the plaintiff to judgment under the act of 28th March, 1835. We altogether exclude the consideration of the plaintiff’s affidavit, there being no warrant for it in a case like this. The agreement is in substance that the defendant shall pay the plaintiff ten thousand dollars, within a year from its date, or at any time after when required; and at the same time, plaintiff is to reconvey the rent-charges to the defendant. Now we have always held that an “ instrument of writing for the payment of money,” to enable the plaintiff to have summary judgment under the act must be positive and unconditional, qualified however by the rule in Bayard v. Gillaspey, (1 Miles 256,) where an instrument containing the promise on its face referring to another to ascertain the amount, both being filed, may be taken as one. (And see Montgomery v. Johnson, and Hansell v. Nelson, 1 Miles 324, 340.) This is not such an instrument. The year for the payment of the ten thousand dollars elapsed before suit was brought, and after that defendant was to pay when required, a condition precedent to plaintiff’s right to sue, and of which requisition we are not judicially informed. Again the plaintiff is to reconvey the rent-charges on payment of the ten thousand dollars, that is to say, at the same time. Now the tender of the reconveyance by the plaintiff to the defendant, not only does not appear, but the contrary is averred in the affidavit of defence. On this subject, Platt in his work on Covenants, states the rule (p. 106,) gathered from all the cases to be, that if the acts contracted for by the parties, are to be performed at the same time, neither one can maintain an action without show» ing a performance of, or an offer to perform his part, though it be not certain which of the parties is obliged to do the first act.
Stroud, J., was absent.Buie discharged.