
    Brawner vs. Harris.
    Where a covenant is made payable on or before the 3d day of October, 1831, and the defendant plead that he performed and paid the money on the 1st day of October, 1831, and issue be taken thereon, the plea is within the words of the covenant, and the issue not immaterial, and the finding of the jury upon the issue will be sustained.
    Harris brought an action of covenant against Brawner, on a note to pay two hundred and fifty dollars in current bank notes, on or before the third day of October, 1831. The breach assigned is, that the said Brawner did not pay on or before said 3d day of October, 1831, but by his failure so to do, has broken his covenant. The defendant, Brawner, pleaded that he had kept and performed his covenant by paying said $250, in current bank notes, on the 1st day of October, 1831, and concluded to the country. On this plea issue was taken; and upon the trial, the jury rendered a verdict, that “the defendant had not kept and performed his covenant,” and assessed the damages to two hundred and sixty one dollars and five cents, besides costs. The defendant moved in arrest of judgment, and assigned as reason for said arrest, that the issue was immaterial. The circuit court overruled the reasons in arrest, and gave judgment upon the verdict. Writ of error to this court.
    
      J. Hair, for the plaintiff in error.
    
      R. M. Jlnderson, for the defendant in error.
   Peck, J.

delivered the opinion of the court.

There is no error in giving the judgment- in this case upon the finding of the jury. The undertaking was to pay before or on the day. If the party chose to rely upon a plea of performance within the terms of the covenant, and issue be thereon taken, and found against him, with what pretence can it be said the issue is immaterial ? think the judgment should he affirmed. We

Judgment affirmed.  