The opinion of the court was pronounced by Mattocks, J. — It seems by the bill of exceptions that the case having gone to trial by jury upon the general issue, the plaintiff having, as he supposed, made out his case, the defendant, without previously setting .up his claim for the stipulated price of manufacturing, or giving any evidence tending to show it had not been paid, or giving the plaintiffs any notice or opportunity to show that it had been paid, requested the court to charge the jury that if they found for the plaintiffs they should deduct the price of manufacturing, the defendant saying the price had not been paid.

But the court did not sustain the request, nor charge as required.' If the fact of non-payment had been admitted or shown, or evidence given tending to show it, the county court might have so charged ; or if they had omitted thus to do, the question would then have been raised in this court whether a plea in offsett was necessary, or whether the allowance ought to have been made under the general issue. But as the bill of exceptions shows no such state of facts, we cannot presume such to have existed ; and if they did not, the charge was correct, however the law would be, had the non-payment been shown.

The declaration in the first count alleges that the plaintiffs were to pay the defendant for the manufacturing thirty cents per barrel when they should be thereunto requested; and the second count says that plaintiffs were to pay such reasonable sum as the defendant deserved to have when they should be thereunto requested. It does not appear which count was supported by the proof, and under either a question might have arisen whether the defendant was bound to prove a request or demand of payment. Charles Mams for plaintiffs. Geo. P. Marsh for defendant.

This among other reasons shows that the request to charge as stated might have been a surprise to the plaintiffs, and that the defendant’s attempt to set up his claim was not in time, nor the manner calculated to try its merits. The judgment of the county court is therefore affirmed.