Rangler v. Morton

—Had the plaintiff expressly averred that the defendant had received money from the estate transferred to him, the assignment of the breach in not accounting and paying over, would have been insufficient without an averment of request or special demand, because the receipt would have raised a duty to account and pay independent of it, as in the case of a bond or note payable on demand, in respect to which a special demand is unnecessary. But though the want of an allegation of request was originally a defect, yet being for the benefit of the defendant, it might be waived by him; and it was in fact waived by his plea of covenants performed. The defendant’s interpretation of his plea is, that it is an assertion of performance just so far as he was bound to perform, without demand *267made : in other words, that it was no performance at all. But it is an assertion of actual performance, and whether on demand or without it, is immaterial, as he put his defence exclusively on that point. The other assignment is entirely destitute of substance.

Judgment affirmed.