
    GRANT vs. GROSHON.
    
    April 22nd.
    rer*icnce of ih; <ieua>r is the P!acewhcrePr°-pertv debts are t0 ¿e diicharg-ed, if the part^jtwes^fix ¿me other,
    If fuc!l be PalabIc°n a kisnot ne;=f-⅛17 ty tbe f^his^edara! t¡on a demand and «fufal at
    if the defer. dant were really t0apayW'he ¿odd (hew ic by (pedal plea.
    leayent°l a declaration che plaintiff mayan a eew oas'
    
    THIS was an action of covenant, brought by Jacob Orosnon against J ohn Grant, upon a writing obligatory, bearing date on the 19th of December 1799, for the pavment of 250/. “ in property, such as horse creatures, io i_ 1 ,,. . . , _ , ’ cattle, sc. at the common selling price, by the first day of May next.”
    In the first declaration a general breach is assigned; and upon leave to amend, the plaintiff filed a new decía-ration, and assigned the breach of covenant in manner following: “ That the said defendant has not paid to the said plaintiff 250/. m property, sucn as horse crea-itures, cattle, &c. at their common selling prices, on or before the first day of May, in the year 1800, as by the tenor and effect of his writing obligatory aforesaid he ought to have done, although he hath been thereto frequently requested, and more particularly on the first day ol May, in the year last aforesaid, wherefore,” &c. Judgment by nihil dicit, and writ of inquiry ; damages assessed to /. 146 5 9 3-4 by a jury, and judgment °f the court for “ the sum of 7.146 5 9 3-4, and costs,” ¡&C.
    The plaintiff in this court assigned the following er- .
    1st. That the plaintiff instead of amending his decía-ration, according to the leave obtained from the court, filed a new one, so that there are two declarations, &c.
    2nd. There is no statement in the plaintiff’s declaration upon which he went to trial, nor in the one first filed and amended, that: the property mentioned in the covenant was demanded at tbe defendant’s usual place of residence, nor is there any statement made superseding the necessity of such demand.
    Rowan, for plaintiff.
    — -I rely upon the case of Chambers and Winn 
      , formerly decided in this court; and the case of Letcher and Taylor 
      
       decided at this term, as being conclusive in my favor.
    Judge TrimRle, requested the counsel for plaintiff, to consider of the difference between a covenant to pay property on demand, and on a particular day.
    
      Ro-wan^—
    
    The same principles govern both cases. The convenience of selecting property is the reason why a payment thereof is to be made at the defendant’s house ; and this reason applies as strongly in the one case as the other. Time cannot render place immaterial: they are distinct and independent, the one of the other. Before the case of Dandridge and Harris, 1 Wash. 326, and the cases I have before cited, the law, as collected from English adjudications and commentators, was, that where no place was fixed for the payment of onerous property, but the time was fixed, the debtor ■ought, before the day, to wait on the creditor, and know of him where he would receive the property ; and at the place appointed by the creditor, the debtor was bound to pay. These cases have substituted the debtor’s place of residence. There he ought to be presumed to be always ready to pay according to contract, until the contrary is alleged; when alleged, it becomes a matter of inquiry and of proof, and not till then.
    Clay, contra.
    — I contend the cases cited do not apply to this case ; nor the reasons ol those cases. There the property was payable on demand. The debtor could not discharge himself without some concurrent act of the plaintiff; the defendant had his whole life to pay in, unless hastened by request. Here the party might have discharged himself by shewing he was ready on the day at Iiis place of residence, and the general breach assigned is suflivjent. Here the property mentioned, horses and cattle, were easily conveyed from place to place ; they are as facile of conveyance as money. The court, in speaking of property cumbrous and difficult of conveyance, could not mean every species of property, except what the party could carry on his back or in his knapsack.
    
      
      Rowan, in reply.
    — All subjects, not of the freehold, ¡are moveable, by applying the proper means, with the proper skill: the court, in speaking of cumbrous property, mean it in contradistinction to money.
    Judge Edwards_Here the parties have fixed the time ; the law the place, viz. the debtor’s residence. Ought not the debtor to discharge himself by shewing he was ready on the day ; and is not a general assignment of breach sufficient ?
    The court took time to consider ; and now
    
      
       See note to the cafe of Cunningham vs. Caldwell, poft.
      
    
    
      
      í) Antef 80.
    
    
      
      í) Ante, 79.
    
   Grundy, Ch. J.

delivered the following opinion of the court: — This was an action of covenant, brought in the inferior court by the present defendant, against the -present plaintiff, upon a writing under seal, executed by the plaintiff, Grant* by which he had bound himself to pay to the defendant, Groshon, 250/. to be discharged in. such property as horses, cattle, &c. at their common selling prices, by the first day of May next ensuing the date of said writing ; which writing bore date on the 19th day of December 1799.

The first error assigned, is, “ That the plaintiff, under an order in the inferior court, giying leave to amend his declaration, filed a new one, instead of amending the declaration already filed.”

This the court deem not to be erroneous, it being unimportant whether the plaintiff files an amendment only, specifying the alterations necessary in the declaration, or transcribes such parts of the declaration as are sufficient on a different paper, and adds thereto or makes therein the necessary alterations.

The second error assigned, is, “That no demand of the property at the obligor’s place of residence is aver-ed in the plaintiff’s declaration;” and to support this objection the cases oí Chambers vs. Winn and Letcher vs. Taylor, decided in this court, are relied on. The eourt conceive there is a material difference between those cases and the one now under consideration. In both of them the property was payable on demand, and no place of payment specified in the contract. The court determined that the plaintiff must shew in his declaration that he had, before bringing his suit, demanded the property at the obligor’s place of residence; because, without doing this, he had not,shewn that the debt was due and payable. The right to commence his action could not accrue until the demand was made at the proper place ; the making of the demand was a precedent act to be performed by the obligee ; and were the court to permit a recovery to be had against the obligor,-without compelling the obligee to shew that he had given him an opportunity, by a demand so made, to discharge the obligation in the property contracted for ;⅛ it would, in fact, in all such eases, be putting it in the power of the creditor to change his property debt into money, and the debtor by no exertion on his part eould prevent it.

In this case there is a day of payment fixed by the contract, and the decisions above referred to determine the place of residence of the obligor to be the place at which the payment is to be made. The obligor could therefore by plea have shewn that he was ready on his

f>art, at the time and place, and that the payment would mve been made, had the obligee attended to receive the property. When the time and place of payment are fixed, a special demand need not be averred in the plaintiff’s declaration ; the defendant being bound to perform the first act, by producing the property for payment.

J udgment affirmed. 
      
       Same point decided in fhe cafe of Keeton vs. Scantland, poft, in Herndon vs. Madifon, fall term 1807, and in Robards vs. M'Bride, Spring term 1808; alfo in the cafes of Adams vs. Macey — Ham, ad'mr, of Hayfe, vs. Hayfe, and Mitchell vs. Gregory, Spring term 1809.
     