
    
      Miller vs. Cook.
    
    Covenant.
    Error to the Franklin Circuit; Henrv Da vidge, Judge. ■
    
      Time. Demand. Demurrer.
    
    June 27.
    Covenant “to do plastering, when called ondeclaration must aver a demand. Upon plea o covenants performed, onusprobandi, on flef’t.
   Judge Robertson

delivered the opinion of the Court.

The declaration in this case, on a covenant to do plastering, whenever called on, after the 1st of August, 1825, contains no averment of any demand, at any particular time or place. Such a demand is necessary.

The demurrer to the declaration, therefore, ought to have been sustained.

But if a special demand bad been averred, the plea of covenants performed, on which the case was tried, dispensed with proof of Jit. The defendant held the affirmative of the issue, and the plaintiff was not bound to prove any averment in his declaration, as the counsel for the defendant seems to think he ought to have done.

Sanders, for plaintiff; Triplett) for defendant-.

As, however; the declaration was insufficient, the judgment must be reversed, and the cause remanded with instructions to sustain the demurrer.  