
    Lewis Smith vs. Jordan Elder, for the use of Edward Francis.
    When a demurrer to a plea is sustained in the court below, but on appeal the plea is pronounced good, and the demurrer overruled, all the legal questions raised by the demurrer will be considered as having been settled by the decision overruling it; and that decision will not only be binding upon the inferior but also upon the appellate court.
    
      "When the same point has been once adjudged between the same parties in the same cause, and upon the same state of facts, the adjudication is binding, not only on the inferior courts, but on the appellate court also.
    Where two pleas were filed, on one of which issue was taken, and to the other a demurrer filed and sustained, and under the judgment of respondeos ouster the defendant plead in substance a similar plea to the one adjudged bad, to which also a demurrer was filed, and without any disposition of the last demurrer the parties went to trial in the court below, and judgment was rendered for plaintiff; which on appeal was reversed, the demurrer to the second plea overruled, and the case remanded ; and on the return of the case the court below adjudged the third plea, to which the demurrer as yet was undisposed of, bad ; and a second trial was had without any answer to the second plea, which had been adjudged a good bar to the action ; and this trial also resulted in a verdict for plaintiff: held, that the proceedings on the second trial were manifestly erroneous, and the judgment must be again reversed.
    And if it had appeared of record, that the court below had refused to allow a judgment to be entered against the plaintiff for want of a replication to his second plea, and had compelled him to go to trial on the issue made up, the court of appeals would have inquired whether or not a final judgment should not have been entered here for defendant.
    On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.
    Jordan Elder, for use of Edward Francis, sued Lewis Smith in an action of debt, on note “ to pay Jordan Elder one thousand dollars in the notes of the banks of the state of Mississippi, at par, at the office of Charles Hill, in Raymond, for value received,” dated Oct. 1,183S, and due on or before the 15th day of May, 1839. The declaration was filed and writ issued 19th Feb. 1840. The note was credited by $299-66. The pleas in substance were as follows, viz.:
    First plea. Nil debet as to $299-66, part of sum in declaration named, and of this defendant put himself upon the country. And as to $700-44, the remainder, actio non, &c., because he says on 18th May, 1839, Charles Hill, a joint maker with defendant, gave notice to Edward Francis, the holder and owner, that said Hill was ready and willing to pay it, at his office in Raymond, according to the legal effect of said note, and avers this to be true, but that said Francis did not present the same for payment. And avers, farther, that said Hill and himself have been ready and willing, at all times since, to pay said last sum, and still is ready, and brings the same into court, ready to be paid to said Francis; and this he is ready to verify.
    To this plea there was a formal replication and issue.
    Second plea. Same as to $299'66, and as to residue, $70044, pleads that said Hill tendered and offered to pay to said Francis, at the store of said Francis, $700, in notes payable on demand, of the Mississippi and Alabama Railroad Co.; $1 in a note of the Bank of Lexington, payable on demand, and $1 in a note of the Commercial Bank of Rodney, payable on demand, with an averment that they were chartered banks of the state, being balance due on said note, with interest, which was according to the legal tenor and effect of said note, which the said Francis refused; and further, that he has always been, and still is ready to pay said sum, and brings same into court, &c.
    To this plea, issue was taken as to first part, and demurrer as to second.
    This demurrer was sustained, and under judgment of “re-spondeat ouster;” the second plea is substantially, but with more minuteness of detail, repleaded.
    To this there was, also, a demurrer.
    There was a jury trial, and verdict for the plaintiff for $853'23.
    A motion to set aside the verdict was overruled, and bill of exceptions taken, and the cause brought by writ of error to this court, where it was determined that the plea to which the first demurrer was sustained was a good plea, and the judgment was reversed, the demurrer directed to be overruled, and further proceedings to be had.
    At the November term, 1846, of the circuit court, it was ordered that the judgment rendered in this cause be set aside, cause reinstated, and put at heel of docket.
    At the May term, 1847, the plaintiff filed a demurrer to the plea pleaded under the judgment of respondeat ouster.
    
    At this term, “12th June, 1847,” is this entry: “The plaintiff filed his demurrer to defendant’s second plea, which is sustained.”
    Then there is this entry.
    “November term, 1847, second day, 16th November, Jordan Elder, use of Edward Francis, plaintiff, against Lewis Smith, came the parties aforesaid, by their attorneys, and thereupon came a jury,” &c. Verdict for plaintiff, debt $700, damages $476.
    From which the defendant appealed.
    
      E. W. F. Sloan, for appellant,
    Stated the case, and that the court below refused to grant a judgment to defendant, for want of a replication to the second plea, but undertook to reverse the judgment of this court overruling the demurrer, by directing an order sustaining the demurrer.
    No change has been made in the pleadings since the cause was remanded; the defendant in error refuses to reply, and I insist that the plaintiff in error is now entitled here to a judgment final, on the order overruling the demurrer.
    
      Mayes, for appellee,
    Admitted, that when the same point has been once adjudged between the same parties in the same cause, it is not only conclusive on the inferior court, but on the appellate court. They will not a second time adjudicate in the same cause the same identical matter or question of law.
    But he contended that this principle did not apply in this case, because no decision had been made on the third plea, the validity of which he questioned.
    He contended that the grounds taken by him had not been adjudicated by this court. They are,
    1. The instrument sued on was not a promissory note, being a promise to pay Mississippi -bank notes, at par, and not to pay “absolutely and unconditionally a certain sum of money.” Story on Prom. Notes, 1, 2, 21, 22.
    
    
      2. As a consequence of the foregoing, viz., of its not being-mercantile paper, it was not entitled to days of grace, and a tender on the 18th, had it been made, was not in time.
    
      3. But to the plea intended as a plea of tender on the 18tb, there was a replication and issue, twice tried, and twice found against the defendant. So far as the fact then of readiness to tender on the 18th is involved in the plea demurred to, is concerned, the appellant has sustained no injury by the decision on the demurrer. He has had the benefit of it in two trials, and there would be no use in having it twice in issue, first in the first, and again in the second or third plea.
    4. The question is then reduced to this, Was a tender to Francis, at the store of Francis, on the 21st of the month, a bar to an action on a note payable in Mississippi bank paper, at the office of C. Hill, on the 15th of the month? Bates v. Bates, Walker, R. 401.
    Even if the makers were entitled to days of grace, and a tender on the 18th would have been a bar, (jury find that no such tender was made,) the plaintiff’s cause of action was complete on the 19th, and a tender afterwards could not affect his right. Gould v. Banks, 8 Wend. R. 567; Suffolk Bank v. Worcester Bank, 5 Pick. R. 106, 108; City Bank v. Cutter, 3 Pick. R. 414. See also People v. Luther, 1 Wend. R. 42; Shotwell v. Dennison, Coxe, R. 174.
    Clifton, on same side.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action of debt, brought on the written promise of plaintiff in error, to pay Jordan Elder one thousand dollars “ in the notes of the banks of the state of Mississippi, at par, at the office of Charles Hill in Raymond.” The defendant below tendered two pleas in bar of the action. To the first of which there was a formal replication and issue. To the second there was a demurrer, and a judgment sustaining the demurrer. Under the judgment of respondeat ouster a third plea was pleaded, more minute in detail, but not varying in substance from the plea to which the demurrer had been sustained. To this plea there' was also a demurrer, but it does not appear from the record that any disposition was made of it by the court. On the state of pleading thus standing, the parties went to trial, which resulted in a verdict for the plaintiff. A writ of error was sued out to the judgment pronounced thereon. The judgment was reversed in this court, the demurrer to the second plea overruled, and the cause remanded for further proceedings. The case is reported in 7 S. & M. 507.

We must hold, that all of the legal questions raised by the demurrer to the second plea of defendant, were reviewed by this court on its decision of the case. The construction of the writing, which was the foundation of the action, whether it was a promissory note in the legal acceptation of the terms, or whether it was a contract for the payment of goods or chattels at a specified value, we are bound to presume was a subject of consideration in this court. The presumption is not to be indulged, that it was overlooked by the court, as the validity of the defence depended equally upon the question, whether the writing was a promissory note or not, as upon the construction to be given to the words, “at par,” in the contract. It is conceded, that when the same point has been once adjudged between the same parties, in the same cause, and upon the same state of facts, the adjudication is binding, not only on the inferior courts but on this also.

This court, in its opinion, considered the demurrer to the original second plea as waived by the demurrant. But upon the cause being remanded into the circuit court, a demurrer was filed to the second or amended plea of defendant, presented under the judgment of resjoondeat ouster. Thus the second original plea, which this court held to be valid, remained unarn-swered on the record, and a plea, the same in substance, in opposition to the judgment of this court, was adjudged to be bad. On this state of case a second trial was had on the issue to the first plea, and verdict and judgment rendered for the plaintiff This was manifestly -erroneous. And for this error the judgment must be reversed.

But it is insisted, that this court should not only reverse the judgment below, but should proceed to pronounce judgment final for the defendant, for want of a replication to the second original plea of said defendant.

It is stated in the brief of counsel, that the court, upon the application of defendant, refused to allow a judgment to be entered against the plaintiff, for want of a replication to his second plea, and that he was compelled to go to trial on the issue then made up. But this statement, is not borne out by the record. If the record showed that state of facts, it would then become a subject of inquiry, whether we should not render a final judgment against the plaintiff. But as it does not, we can only reverse the judgment, overrule the demurrer to the third plea, and remand the cause for'further proceeding in the court below.  