Leas v. Laird , 6 Serg. & Rawle 129 ( 1820 )

Tilghman C. J., for the Court.

_ _ This is an action on a promissory note from Benjamin Henry Leas, the defendants below, to William, W. Laird, the plaintiff. Issue was joined on the plea of payment, with leave to give the special matter in evidence. The defendants afterwards gave notice to the plaintiff, that they intended to make a set-off of a bond, which he had given to them, in the penalty of 1000, “ conditioned for the delivery to Power & Elliott, or order, of pig-mettle, to the amount of ¶> 800, including what had been already taken away from Juniata furnace, by D. English, at any time when called onE The Court below, were of opinion, that the defendants could not avail themselves of this set-off, without proving, that the delivery of the pig-metal had been demanded.— This opinion, the defendants say, was erroneous. But it appears to us, that there is no error. If the defendants had brought suit on the bond, they could not have recovered, without proving a demand. The delivery of the pig-metal, was a collateral matter. It was not due, until demanded, nor would it have been proper for the plaintiff to deliver it, until demanded, because it might not have been convenient to receive it, and of that convenience, the persons who were to receive it, were judges. It is therefore the opinion of the Court, that the judgment should be affirmed.

Judgment affirmed.