
    Green v. Dulany.
    Tuesday, December 3d, 1811.
    1. Assigned Bond — Action on — Declaration—Sufficency of.’’ — In an action upon an assigned bond, a declaration charging “that the defendant has not paid the debt to the plaintiff,” but containing no averment “that he did not pay it to the assignor before notice of the assignment,” is radically defective, and not cured by verdict.
    2. Pleading and Practice — Issue of Fact — Demurrer.— If the defendant plead several pleas, on which issues in fact are joined; and, moreover, demur to a replication by the plaintiff who joins in demurrer, a jury ought not tobe sworn to try the facts; but the court should decide upon the issue in law, in the first place that, if the demurrer be adjudged insufficient, an issue in fact may be made up upon the said replication, to be tried by a j ary.
    See Go. Hitt. 72, a.; Tidd’s Pr. 684, 685.
    In an action of debt on a bond, in the county court of Culpeper, between Braxton Dulany, assignee of Zachariah Dulany, plaintiff, and William Blackwell and Moses Green, defendants, the declaration charged the defendants as having failed to pay the debt to the plaintiff, but did not also state that they had failed to pay it to the assignor of the bond, before notice of the assignment. The defendant Green, on whom alone the process was executed, pleaded “payment;” and issue was joined; and at a subsequent term (the plaintiff assenting thereto) he filed two other pleas; one of which was, in substance, that the defendant Green was only a security for William Blackwell the other obligor; and that, according to the act of assembly  in that case made and provided, he had required the.plaintiff to bring suit against the said Blackwell which he neglected to do; wherefore, he the said Green was exonerated from the said writing obligatory. To this the plaintiff replied that the said defendant did not give notice to, or require, the said plaintiff, in writing, to institute such suit: and issue thereupon was joined.
    The third plea was as follows: “And the said defendant, for further plea in this behalf, &c. says, that the plaintiff his action aforesaid thereof against him ought not to have or maintain, because he says that, after executing the said writing obligatory in the declaration mentioned, *to wit, on the day of , in the year 18 , at the county aforesaid, he the said defendant, according to the act of assembly, &c. (he being then and there only a security in the said bond, for the said William Blackwell in the said writing obligatory mentioned,) did then and there require the said plaintiff to institute a suit on the said writing obligatory in the said declaration mentioned, and prosecute the same to judgment; and the said plaintiff, afterwards, to wit, on the day of , 18 , in the county court of Fauquier, according to the said notice, did institute a suit against the said William Blackwell, but, af-terwards, to wit, on the day of , 18 , did dismiss the said suit, without prosecuting the same to judgment; whereby, according to the act of assembly, &c. the said defendant is exonerated and discharged from the said writing obligatory; and this he is ready to verify,” &c.
    The plaintiff replied as follows: “And the said plaintiff, further, for answer, saith, to the said plea of the defendant last above pleaded, that he ought not, by any thing therein contained, to be barred of his action aforesaid; because he saith that the said defendant did not, at any time after executing the writing obligatory aforesaid, give notice to, or require, the said plaintiff, in writing, to institute a suit thereon; and the said plaintiff saith, that he did not institute any suit on said bond, in pursuance of any notice given by the said defendant according to the act of assembly, &c. and this he is ready to verify, wherefore he prays judgment,” &c.
    To this replication the defendant demurred ; setting forth as causes of demurrer; “1st. That the plaintiff hath stated two replications to the same plea;— ■2d. Because the said replication is a departure; — 3d. Because the said replication is insufficient, double, and wants form.” In which demurrer the plaintiff joined; and thereupon cams a jury, &c. whose verdict was, “We of the jury find for the plaintiff on the issue of payment; and we find for *the defendant on the other issue.” The demurrer was next argued and determined for the defendant; in whose favour judgment was accordingly entered.
    Upon an appeal to the district court holden at Fredericksburg, the judgment was reversed; and it was ordered that the pleadings, and all other proceedings, in the said county court subsequent to the declaration, be set aside, and that the parties plead anew; and the cause was remanded to be proceeded in accordingly; whereupon the defendant Green appealed to the court of appeals.
    
      
       Assigned Bond — Action on — Declaration—Sufficiency of. — On this subject, see foot-note to Braxton v. Lipscomb, 2 Munf. 282, and other notes in this series of reports there cited.
      The principal case was cited on the subject in Mitchell v. Thomson, 2 Pat. & H. 429; Simmons v. Trumbo, 9 W. Va. 362; Reynolds v. Hurst, 18 W. Va. 651; Nicholson v. Dixon, 5 Munf. 198.
    
    
      
       Pleading and Practice — Issue of Fact — Demurrer.— Where there is a general demurrer to the declaration, and also an issue of fact, the regular course is to decide the demurrer first; because if the demurrer to the whole declaration be sustained, there would be no utility in trying the issue; for, whatever might be the verdict of the jury, the defendant would be entitled to a judgment in his-favor. Cooke v. Thornton, 6 Rand. 14, citing- prin-pal case.
      To the point that when there is an issue of fact and also a demurrer, the demurrer ought first tobe decided, the principal case is cited in Jones v. Stevenson, 5 Munf. 7; Creel v. Brown, 1 Rob. 266; Reed v. Hanna, 3 Rand. 60.
      See generally, monographic note on “Demurrers”" appended to Com. v. Jackson, 2 Va. Cas. 501.
    
    
      
       See 1 Rev. Code, 323.
    
   Wednesday, December 11th. The following opinion of this court was pronounced.

The court (not deeming it necessary to decide whether the replication is liable to the objection taken to it by the demurrer) is yet of opinion that that demurrer ought to have been sustained, on the ground that the declaration contained no cause of action; in this, that there is no averment therein that the money was not paid, to the original obligee, before notice of the assignment of the bond in the declaration mentioned, and that the obligor in the bond aforesaid had not paid the said debt; the court is also of opinion that the said county court erred in not deciding upon the said demurrer, before swearing the jury to try the other issues, in order that, if the demurrer aforesaid had been deemed insufficient, and issue might have been made up, upon the replication to the third plea, to be tried in like manner before a jury; and that the said judgments are erroneous. ”

Both judgments were therefore reversed; * ‘and, the declaration being too defective to maintain the action,” judgment was entered, ‘‘tnat the appellee take nothing by his bill, but for his false clamour be in mercy,” &c.  