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 *215what pretence can it be said the issue is immaterial ? think the judgment should he affirmed. We

Judgment affirmed.