
    Bledsoe vs. Chouning.
    Where a plea is bad, and the issue is thereby rendered immaterial, it is well settled that a repleader will not be awarded at the instance and in favor of the party who commits the first fault by pleading a bad plea.
    On the 1st day of February, 1838, Benjamin J. Bledsoe instituted an action of trespass on the case in the circuit court of Overton county against William Chouning, and at the June term following the plaintiff filed his declaration in the following words:
    “Benjamin J. Bledsoe, by attorney, complains of William Chouning, summoned, to answer him of a plea of trespass on the case to his damage, &c. for that on the 17th day of January, 1838, in the county of Overton, the defendant, by the description'of “William Chouningj” by a written agreement signed by him, of that date, which is now here shown jo the court, acknowledged that he had received from the plaintiff' by description, B. J. Bledsoe, one hundred dollars, which the defendant promised to lay out for tobacco for the use of the plaintiff, or that he, the said defendant, would return the. said one hundred dollars to the plaintiff. Now the plaintiff avers that the defendant, not regarding the promise made by him as aforesaid, did not lay out said one hundred dollars in tobacco for the use of the plaintiff nor return the §aid one hundred dollai’s to the plaintiff,” &c.
    The defendant filed his plea in words as follows: “The defendant comes, &c. and defends the wrong and injury, when, &c. and craves oyer of the writing in said declaration mentioned, which is read to him in the words and figures following, to wit:
    “Received of B. J. Bledsoe one hundred dollars, with which 1 promise to buy tobacco or return the same to him.
    “January 17,1838. Wii. Chouning.”
    Which being read and heard, the defendant says the plaintiff his action ought not to have and maintain, because he says he did buy tobacco with the said one hundred dollars, and this he is ready to verify. Turney.”
    “Replication and issue, Cuiaom.”
    
      A jury found this issue at the June term aforesaid in favor „ , f , , , . , . . • . the plaintiff, and assessed his damages to one hundred and eight dollars and seventy-five cents,
    ^ motion was made to arrest the judgment, whióh was overruled, and judgment rendered in conformity with the verdict. There was an appeal from this judgment in the nature of a writ of error to the supreme court.
    
      Turney, for the plaintiff' in error,
    contended that the plea filed in this case was bad, that there was no issue for the jury to pass upon, and that a repleader should be awarded.
    
      Cullom, for the defendant in error,
    insisted that the plea made a material averment, to wit, the performance of one of the alternatives stipulated to be performed. If the averment in this plea was true, it would have constituted a good de-fence to the action. This form of pleading conforms to the ancient mode. 1 Chitty’s PI. 464. If the plea be regarded at this day as informal, it is not immaterial; it contains matters of substance responsive to a material allegation in the declaration, and is good after verdict. 1 Chitty’s PI. 474, 631.
   Reese, J.

delivered the opinion of the court.

The defendant in error sued the plaintiff in error in an action of assumpsit, and declared upon the following writing, to wit:

“Received of B. J. Bledsoe one hundred dollars, which I promise to buy tobacco with or return to him.
“January 17, 1838. Wm. Ciiouning.”

This writing, the declaration averred, purported that the defendant below was to buy the tobacco for the use and benefit of the plaintiff, or to return the money to him, and the breach assigned was, that the defendant had neither bought tobacco with the sum in question for the use and benefit of the plaintiff, nor had he returned the money to the plaintiff. The defendant craved oyer of the writing and pleaded in bar of the action “that he did well and truly buy tobacco with the said one hundred dollars.” This was the only plea; issue was joined upon it, and a verdict was found for the plaintiff. The defendant moved in arrest of judgment, which motion was overruled by the court, and judgment for the plaintiff; to reverse which the defendant below has prosecuted his writ of error to this court. And here the error insisted on in argument is, that the issue joined between the parties was an immaterial one, and that final judgment should not have been rendered upon the finding of the jury, but that a repleader should have been awarded. It is not necessary to enquire whether, as the plea is in the words of the written undertaking, it is not to be understood as averring the performance of that which the sense and meaning of the undertaking imposed upon the defendant as a duty-Let it be taken, as insisted on by the defendant below, that his plea is bad and the issue immaterial; it is well settled that a repleader is not grantáble in favor of the person who made the first fault in pleading. See Tidd’s Prac. 834: see also Staple vs. Haydon, 2 Salk. 569: 6 Mod. 1: 2 Ld. Ray. 922: 2 Saun. Rep. 319, note 6. In the case of Bennet vs. Holbeck, 2 Saun. 319, where it was ruled that the issue was aided by the finding, it is said “that if the issue had not been so aided the plaintiff would have been entitled to judgment, because his declaration was not answered; for as the plaintiff’s declaration must have all essentials necessary to support the action, so the defendant’s, plea must be issuably good; and if the gist of the plea is bad it cannot be cured by a verdict found for the defendant, but if it be found for the plaintiff, he shall have judgment either for the badness or falsehood pf the plea.” If in this case then the plea wei’e essentially bad, as the party pleading it insists it is, and also found by the jury not to be true, the defendant under such circumstances was not entitled to the award of a repleader in his favor, but the plaintiff was entitled to judgment, which having been rendered in his favor, is now here affirmed,  