Thaxton v. Edwards , 1 Stew. 524 ( 1828 )

By the CHIEF JUSTICE.

The validity of a plea of the kind of the one demurred to, came incidentally before the Court on a former occasion, and we believe the opinion then expressed is a sound exposition of the law; but as that case went off on another point, and as the question is now' fairly presented, we have thought it best, for the purpose of putting the question entirely at rest, distinctly to state, that the plea overruled by the Court is a good plea in bar, and we expressly recognize the doctrine laid down in the Case of Lane against Kirkman, at a former term of this Court. If the defendant is notable to prove the. truth of the plea, it is no de-fence to the action that there had been no demand made by the plaintiff. It is, however, the safer way for the demand to be made before commencement of suit; if there is a refusal, it will remove all danger of the defendant’s defeating the action, by proving on the trial his readiness to perform.

Reversed and remanded.

Judge Crenshaw not sitting.