
    York vs. Newland and Others.
    York contracted to deliver to Newland and others one hundred head of pork hogs between the 1st and 20th days of November, 1847. They were demanded on the 10th, and not delivered on that or any other day. The court say they were demandable at any time between the 1st and 20th days; but that.the defendant had to the last hour of the 20th day to deliver them. If they were not delivered when demanded, it devolved on the defendant to prove that he was ready to deliver them on the 20th;. this, however, would be a tender, which should be specially pleaded in assumpsit.
    2. When a judge charges the jury erroneously on a point in reference to which there is no evidence, such erroneous charge is not a ground of reversal.
    
      Britton, for plaintiff in error.
    See 1 Gutty's PI. 477.
    
      H. M. Burton, for defendants in error.
    See 6 Yerger 491, 3 Yerger, Hopkins vs, Rodgers, 3 Hum. 56, 2 Hum. 518, 4 Hum. 218.
   Turley, J.

delivered the opinion of the court.

This is an action brought upon a 'contract to deliver a specified number of pork hogs by a given time. The proof shows that the hogs were not delivered by the time specified in the contract; but it also shows that they were demanded on a day within the extremes between which they were to have been delivered, viz, they were to have been delivered between the 1st and 20th of November, 1847, and were demanded on the 10th of November, and not delivered.

Upon this statement of facts, the Judge below charged the jury, “that if the defendant, on any other day between the 1st and 20th of November than the one on which the demand was made, had the hogs ready to comply with his contract, and the plaintiff failed to attend and receive the same, then it would not be competent for him to give such facts in evidence, under the general issue; but that to avail himself of such proof he would have to plead the fact, and not haying done so, he cannot avail himself of such de-fence.” Upon this charge the jury found a verdict for the plaintiff, upon which there was judgment below, and to reverse which this writ of error is prosecuted.

In the charge of the judge there is no error; the day of delivery being specified to be between the 1st and 20th of November, the delivery of the hogs was demandable on any of the days specified; though not legally necessarily deliverable before the last; but if not delivered when demanded, it devolved by law upon the defendant to prove that he was ready at the last hour of the last day to deliver them: and this is a 'defence of tender which must be specially pleaded, and cannot be given in evidence under the plea of non-assumpsit. That a tender must be specially pleaded in assumpsit, see Chitty on Pleading 481, and the authorities there cited.

But, independent of this, there is no proof that the defendant was ready to deliver the hogs during the time specified; and therefore the charge of the judge upon this point was upon a principle to which there was no proof, and thus abtract in relation to this case.

The judgment of the circuit courtis therefore affirmed.  