
    Nicholas Headington v. Hannah Neff, for the use of Conrad Neff.
    Security, who has given, notice in writing to the creditor to proceed against the principal debtor, must set forth the fact in a plea; he can not otherwise avail himself of it as a defense at the trial.
    Upon a demurrer judgment is always given against the party that commits the first fault in pleading.
    Reserved in the county of Knox.
    The action is a debt on a sealed note. The declaration contains but one count, in which the defendant in error, in the court of common pleas, declared that the plaintiff in error, on August 25, 1819, at Knox county, by his certain writing obligatory, sealed with his seal, etc., acknowledged himself to be held, etc., to the defendant in error, in the sum of forty-nine dollars and twenty-five cents, to be paid to her twelve months after date.
    The defendant in error pleads: 1. Hon est factum; 2, 3, and 4. Special pleas substantially the same, setting up as a defense that the said note on which the suit was brought was a joint and several undertaking, in which one George Ogg was principal, and the plaintiff in error and others sureties; and that after the obligation became due, to wit: on August 25, 1821, at Baltimore county, in the State of Maryland, to wit: at Knox county aforesaid, he notified and urged the defendant in error to proceed immediately and collect the money, and that she neglected and refused to do so; that the principal debtor was, at that time, solvent and able to pay the money, and payment might have been obtained of him; but that he afterward ^became insolvent, and the defendant in error being now unable to obtain payment of the principal, seeks to recover the amount of said obligation of the plaintiff in error.
    There is also a fifth special plea of the statute of Maryland, limiting the cause of action to twelve years’ standing. This plea •avers that the parties, at the execution of the said contract, were both residing in the State of Maryland, and that the action was not commenced within twelve years after the execution of the said note, nor within twelve years after it became due.
    To the second, third, and fourth pleas the defendant in error demurred specially, and assigned, among others, as cause of demurrer, that said pleas did not aver that the notice given by the plaintiff in error to the defendant in error, to prosecute tho principal, was in writing. ■
    
    To the fifth plea the defendant in error replied that the matters therein contained were not true; said note was not executed within the State of Maryland, and this he prays may be inquired of by the country. To this replication the plaintiff in error demurred specially. The court of common pleas sustained the demurrer to the second, third, and fourth special pleas, and the demurrer to the replication to the fifth plea, and, at the next term, neither party requiring the intervention of a jury, the cause was submitted to the court, and judgment given to the defendant in error for the amount of the noté, with interest and costs.
    Delano, for the plaintiff.
    Hall, for the defendants.
   Opinion of the court, by

Judge Wood :

The plaintiff contends the court of common pleas erred in sustaining the demurrer to the second, third, and fourth special pleas, and that its proceedings must be reversed. This is the principal error he has assigned, and the only one on which be appears to rely. We do not know the reason that court gave for its decision, and it would be time misspent to inquire, for we do not reverse its decision, because an erroneous reason may be given for it, so long as the judgment itself is, in our opinion, correct.

The declaration avers the note was executed in Knox county.' *The pleas under consideration do not controvert this fact.

No question, then, as it is sued in our courts, can arise as to its not being subject to be controlled by our laws. If a party in Ohio will screen himself from liability, because he was surety, and notified the creditor to proceed against the principal debtor, such notice must be given in writing. 29 Ohio Stat. 461. Jenkins v. Clarkson, decided the same question at the present term. Counsel say, however, that it may be shown on the trial that such notice was in writing, but it is unnecessary to aver i.t in the plea. We entertain a different opinion. When a promise is required to be in writing, it may be declared on, generally, in a declaration; but a plea must be more certain, and show the promise in writing, or such plea will be bad on special demurrer, and such is the authority of Chitty. 1 Chit. Pl. 213, citing 1 Saund. 276 a, n. 2. The demurrer was, therefore, properly sustained to the special pleas.

The demurrer to the replication to the fifth special plea is now to be considered, and it may be truly said to contain scarcely one-requisite to make a good replication. It neither denies, confesses, avoids, nor estops the plaintiff in error from setting up any One fact the plea contains. 6 Dane’s Abr., chap. 180. It has no legal commencement. It is more general than the declaration it is intended to sustain, and is a proper answer to the plea in no one particular. It is most clearly bad, and the demurrer to it is correctly sustained, provided the plea itself is good ; but the demurrer to the replication opens the plea for inspection, and judgment must be given against him who committed the first fault in pleading. This plea of the statute of Maryland, in bar of the action, avers that the parties resided in Maryland, at the time of the execution of the contradi but does not aver that they resided there wheu the cause of action accrued. If, then, the defendant had left that state before the note became due, and this the plea does not negative, the statute of Maryland would be no bar to the action. The plea, then, is bad, and the court of common pleas erred in sustaining the demurrer to the replication, for the replication is good enough for the plea. The court, on this demurrer to the replication, should have overruled' the plea, and its decision would have been technically correct. The court of common pleas has, however, given judgment for the defendant in error, and the judgment is right, ^though the reason assigned for it may be wrong. The judgment of the court •of common pleas is affirmed with costs.  