
    Jones v. Stevenson.
    Argued, February 8th, 9th, & 10th, 1814.
    a. Assumpsit — Agreement to Deliver Flour— De-fence — Sufficiency."'-—In Assumpsit, upon an agreement for delivery to the plaintiff of a quantity of merchantable flour barrels, at his the defendant’s shop at W., at certain times, until the whole number should be delivered; with a stipulation. that if the plaintiff should not then and there be ready to receive them, the same should be counted out in the presence of J. A., who then resided atW., and be thereafter the property, and at the risk of the plaintiff; it is a good and sufficient plea in bar to the action, that the defendant was ready, at his shop at W., at the times appointed, to deliver the requisite number of barrels to the plaintiff, who was not then and there ready to receive them; that, thereupon, the defendant, from time to time, counted out the barrels, according to the agreement, in the presence of J. A., until he moved away from W.: and that, after the said J. A. had moved from W., he the defendant, at his said shop at W., at the times for delivery stipulated, had the number of barrels, required by the agreement, ready to be delivered to the plaintiff, and counted out for him, and then and there required the plaintiff to receive the same, which he entirely neglected to
    a. Same — Same — Replication- — Sufficiency.—A replication to such plea, stating that the defendant did not count out in the presence of J. A. the barrels set forth in his plea, nor count out, thereafter, for the plaintiff, at the stipulated times, the barrels agreed to be delivered; without averring that the defendant did not then and there require the plaintiff to receive the same; — is bad upon demurrer, as being an answer to a part only of the plea.
    3. Pleading and Practice — Issue in Fact and Law to Same Plea.t — Quaere, whether it is competent to the plaintiff, in any action other than replevin, to tender an issue in fact by a replication, and an issue in law by a demurrer, to the same plea?See Rev. node, 1st. Vol. ch. 66, sect. 40, p. 80; and Syme v. Griffin, 4 H. & M. 277.
    4. Same — Issue in Fact — Demurrer—Which Decided First. — Whenever there is an issue in fact, and also a demurrer, the demurrer ought regularly first to be decided; but an irregularity in this respect is not sufficient to reverse a judgment to which there is no other objection. SeeTidd’s Pr. p. 684 — 6.
    In an action of Assumpsit in the Superior Court of Spottsylvania county, James Stevenson complained of William Jones, in custody, &c. of a plea, &c. “for that, whereas on the day of , in the year 1803, at Fredericksburg, in Spottsylvania aforesaid, and within the jurisdiction, *&c. the said James bargained with the said William for one pipe of Madeira Wine, at the price of three hundred and fifty dollars, equal to 1051. which said price the said William then and there promised and agreed to pay the said James in merchantable flour barrels at two shillings and sixpence each, to be delivered at his the said William’s shop at the Wilderness Tavern, in the following manner, to wit, one hundred barrels at the end of ¿ve working days from the date of making the said bargain, and one hundred barrels at the end of every five working days thereafter, until the whole quantity was delivered; and if the said James was not, at the stipulated time for each delivery, present to receive them, then the said barrels were to be counted out in the presence of John Almond, who then resided at Wilderness, after which, the barrels so counted out were to be the property, and at the risk, of the said James : and the said James in fact says he has fully complied with that part of the said bargain on his part to be performed, and delivered to the said William the said pipe of Madeira wine ; yet the said William did not deliver to the said James, or count out, in the presence of the said John Almond, at his shop at the Wilderness Tavern, or at any other place, one hundred merchantable flour barrels, at the end of five working days from the said bargain, and one hundred merchantable flour barrels, at the end of every five working days thereafter, until the whole quantity was delivered ; whereby the said James lost a large sum of money, &c.
    The declaration farther charged other agreements to the same effect, and breaches of, on the part of the defendant, in various ways, in six other special counts, and concluded with a general count for goods, &c. sold and delivered.
    The defendant pleaded non assumpsit; to which plea the plaintiff joined issue. “And the said defendant, by leave of the Court, &c. for farther plea, said, that the plaintiff his action aforesaid in form aforesaid thereof against him ought not to have or maintain, because he saith that, on the day of , in the year , at the county aforesaid, it was then and there agreed that the said plaintiff should sell and deliver to the said defendant a pipe of Madeira wine, at the price of three hundred and fifty dollars, to be paid for by the said defendant in merchantable flour barrels, at two shillings and sixpence each, to be delivered at his, the said defendant’s shop, at the Wilderness Tavern, in the following- manner, one hundred barrels at the end of five working days from that day, and one hundred barrels at the end of every five working days thereafter, until the whole quantity was delivered; and if the said plaintiff was not then and there ready, at the said stipulated periods for the delivery of each hundred barrels until the whole quantity was delivered, to receive the same, that the said one hundred barrels, at the end of each of the said five working days, should, then and there, on the said respective days, be counted out in the presence of John Almond, who then resided at the Wilderness Tavern ; — after which, the barrels so counted out were to be the property, and at the risk, of the said plaintiff, and the said defendant then and there discharged for so many of the said flour barrels: and the said defendant in fact saith, that he, on the day of , in the year at his shop at the Wilderness Tavern, in the county aforesaid, which was the end of five working days after the said agreement, was then and there ready to deliver the said one hundred merchantable flour barrels to the said plaintiff, who was not then and there ready to receive them; and that the said defendant was, at the end of each five working days thereafter, until the whole quantity should be delivered, ready to deliver one hundred merchantable flour barrels to the said plaintiff, who was not then and there ready to receive the same ; and that the said defendant did, then and there, which was at the end of five working days after the said agreement, in pursuance of and in compliance with his said agreement and undertaking, (the said plaintiff not being then and there present to receive the same,) count out, for the said plaintiff, in the presence of the said John Almond, one hundred merchantable flour barrels, and which were, then and there, after the said counting out, the property and at the risk of the said plaintiff: — and the said defendant doth in fact aver that he did, at his said shop at the Wilderness Tavern, in the county aforesaid, at the end of every five working days thereafter, count out, in the presence of the said John Almond, one hundred merchantable flour barrels, *for the said plaintiff, in performance and fulfilment of his the said defendant’s promise and undertaking aforesaid, and which were then and thereafter the property and at the risk of the said plaintiff, and a discharge to the said defendant from his said promise and undertaking for so much, until the fifteenth day of December in the same year, when the said John Almond moved away from the said Wilderness Tavern ; at which time the quantity of two hundred and forty merchant-; able flour barrels had been counted out for the said plaintiff, as his property and at his risk, and which, by the said promise and agreement between the said plaintiff and the said defendant, was then and there a discharge to the said defendant for so much of the said promise and agreement on his part to be kept and performed : — and the said defendant saith that, after the said John Almond had removed from the said Wilderness Tavern, and was not then and there at the shop of the said defendant, he the said defendant did, then and there, at the end of every five working days after the said last day of counting out as aforesaid, have then and there one hundred merchantable flour barrels ready to be delivered to the said plaintiff in compliance and in full performance of the said promise and agreement aforesaid, until the whole quantity was delivered agreeably to the said promise, agreement, and undertaking aforesaid, and then and there required the said plaintiff to receive the same, which he entirely neglected to do : — and the said defendant farther saith, that he did, then and there, at the end of every five working days, after the said removal of the said Almond, and at the end of the five working days after he counted out the last hundred merchantable flour barrels in the presence of the said Almond, and at the end of every five days thereafter, count out for the said plaintiff one hundred merchantable flour barrels, until the whole quantity was counted out, in full discharge of the said three hundred and fifty dollars, at the said price of two shillings and sixpence for each barrel, agreeably to and in pursuance of his said part of the said promise and agreement aforesaid, and in full discharge and satisfaction thereof; without that, that he the said defendant, made any other or farther promise and assumption in manner and form as the said plaintiff thereof *against him hath complained ; and this he is ready to verify, wherefore he prays judgment,” &c.
    The defendant also filed another special plea, to the same effect in substance. — The plaintiff filed a special replication to each of these special pleas ; — stating, in the first replication, that the said'defendant did not, in full discharge and satisfaction of the promise set forth in his plea, (which is the same as the said first, and second, and sixth, set forth in the said declaration,) count out, in the presence of the said John Almond mentioned in the said plea, two hundred and forty merchantable flour barrels, at the rate of one hundred for every five working days from the time of making the said promise and undertaking, nor did the said defendant thereafter count out, at the end of every five working days, one hundred merchantable flour barrels for the said plaintiff until the whole quantity was counted out, in manner and form as the said defendant in pleading secondly has alleged ; and this the said plaintiff prays may be inquired of by the country.
    The plaintiff, in his second special replication, said, “that the defendant did not, in performance of the said promise set forth in the said third plea, (which is the same promise and agreement as those set forth in the said first and second and sixth counts of the said declaration,) count out, in the presence of the said John Almond, for the said plaintiff one hundred merchantable flour barrels, within or at the end of five working days from the making the said promises and undertakings, and one hundred such barrels within or at the end of five working days from the said first counting out ; nor was the said defendant, at the end of every five working- days thereafter, at the said Wilderness Tavern, ready to deliver to the said plaintiff one hundred merchantable flour barrels, which were put by and counted out for the said plaintiff until the whole quantity was counted out in manner and form as the said defendant in the said third plea hath alleged, and this, &c.
    The plaintiff also demurred to the same pleas of the defendant; — “for that the said second and third pleas severally amount to the general issue as to the promises several set forth in the fifth, seventh and eighth counts of the declaration; — for that the said pleas are respectively and severally *double, — -put in issue immaterial matter, — and are uncertain, insufficient, and informal.”
    The defendant joined in demurrer ; and, on his part, demurred to each of the plaintiff’s special replications ; “1st, because the said plaintiff hath filed a replication to the said defendant’s plea, and thereby tendered an issue in fact, and hath also demurred to the same plea, and tendered an issue in law ; 2d, because the said replication, although it professes to be an answer to the whole of the said plea, yet is only an answer to a part, and leaves the residue unanswered —in which demurrers the plaintiff joined.
    A Jury was empaneled to try the issue on the plea of non assumpsit, and found a verdict for the plaintiff for $312 33 cents damages : — and “the several demurrers of the defendant to the replications of the plaintiff being argued- and overruled,” the Court rendered a judgment according to the verdict ; from which the defendant appealed.
    Williams for the appellant.
    Stanard for the appellee.
    
      
       Assumpsit. — See generally, monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
       Pleading and Practice — Issue in Fact — Demurrer— Which Decided First. —Though where there is an issue in fact and also a demurrer, it is irregular to try the issue of fact before judgment on the demurrer, yet, if it appear that the demurrer ought to have been overruled, and so no inconvenience has ensued from that irregularity, it is not sufficient cause to reverse the judgment. Creel v. Brown, 1 Rob. 266, citing principal case, and Green v. Dulany, 2 Munf. 518. But, in this case (Creel v. Brown), there was a demurrer to the declaration, and an issue in fact; and a verdict was found for the plaintiff, without any j udgment on the demurrer, otherwise than by implication from the fact that final judgment was given for the plaintiff after the verdict. The court of appeals held that the demurrer ought to have been sustained, and therefore that the judgment must be reversed, the verdict set aside and the cause remanded to the lower court, in order that it might proceed to j udgment on the demurrer, unless the plaintiff should, on leave obtained from the court, amend his declaration.
    
   December 7th, 1815,

JUDGE CABELL

pronounced the following opinion of the Court.

Eew cases have occurred in which the pleadings have been more unnecessarily multiplied, protracted and entangled. — In the obscurity and perplexity thus thrown over the case, the difficulty is more in ascertaining than in deciding the points in controversy.

The special pleas of the defendant in the Court below presented, each of them, a complete bar to the action of the plaintiff, provided the facts therein relied upon were true. — To these pleas the plaintiff both replied and demurred. To the replications there were demurrers and joinders therein ; and there were also joinder sin the demurrers of the plaintiff to the pleas of the defendant. —Not deciding whether it was competent to the plaintiff to' reply and to demur to the same pleas, but admitting his right to do so, the Court is of opinion that the law, both upon the defendant’s demurrers to the plaintiff’s replications, and upon the plaintiff’s demurrers to the defendant’s pleas, was in favour of the defendant ; in the first case, because the replications were answers to a part only of each of the defendant’s pleas, and therefore did not remove the bar which the pleas, taken altogether, presented to the action ; and, in the second case, because the facts in the pleas were admitted by the demurrers, which facts, as before stated, presented a complete bar.

This case shews the propriety of the de-cisión of this Court in the case of Green v. Dulany, (2 Munf. 518,) that, where there is an issue of fact, and also a demurrer, the demurrer ought first to be decided. By pursuing this course, if the Court below had correctly decided the demurrer, the parties would have been saved the expense, and the-Court would have been saved the time of trying the issue by a Jury. We do not understand the opinion of the Court, however, in that case, as deciding that this, irregularity would, of itself, be sufficient to reverse a judgment to which there should be no other objection. — In the case now before the Court, there are other and stronger objections ; an improper judgment upon the demurrers of the defendant, and an omission to pronounce any judgment on the demurrers of the plaintiff. The Court is therefore of opinion, that the judgment be reversed, and that judgment be entered for the appellant. 
      
       Ejectment. — See monographic note on ’'Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 178.
     