
    Lydia A. Barrow, Administratrix of William Barrow, vs. William Wade, Use, &c.
    Where, in an action against an administrator, as such, the judgment is rendered de bonis propriis, this court will reverse the judgment} hut will render such judgment as the court below ought to have rendered.
    Where a writing obligatory, made by two, is sued upon but only one of the obligors sued, and two pleas are filed, the first alleging payment by one obligor and the other alleging payment by the other obligor, and a single replication professing to answer both pleas, was filed, on which the defendant took issue, and a verdict was rendered for the plaintiff; it was held, that though the replication was defective, yet the mispleading was cured by the verdict, by virtue of the statute of jeofails. The defendant should have demurred.
    In error, from the circuit court of Madison county; Hon. John H. Rollins, judge.
    William Wade sued Lydia A. Barrow, administratrix, &c. of William Barrow, deceased, on a writing obligatory, made by William Barrow and Samuel Barrow. The defendant plead two pleas; first, payment made by the intestate, in his lifetime ; and second, payment by his obligor, since the death of her intestate. The plaintiff filed the following replication to these pleas, viz.: “And as to the first and second plea, said plaintiff says precludi non, because he says that the debt, in his declaration mentioned, has not been paid by the said Samuel Barrow, the joint and co-obligor of said William Barrow, deceased, as is in said plea set forth, and of this he puts himself upon the country, &c.” To this plea the defendant added a similiter ; and the cause was submitted to a jury, who found a verdict for the plaintiff; upon which the court below rendered this judgment, viz.: “It is therefore considered by the court, that the said plaintiff recover of the said defendant the debt and damages aforesaid, also his proper costs, by him in this behalf expended.”
    The defendant sued out this writ of error.
    
      D. Mayes, for plaintiff in error.
    The judgment must be reversed, because,
    1. It is against defendant, de bonis propriis, which is error. Hill v. Robinson, 2 S. & M. 541; Brackenridge’s Administrator v. Mellen'1 s Administrator, 1 How. 273: Neely v. Planters Bank, 4 S. & M. 113, (dictum.)
    2. Because the replication to the first and second plea only traverses the facts plead in the second plea, and puts in issue nothing but the payment by Samuel Barrow, since the death of William Barrow. And the issue is immaterial, being found for the plaintiff, though it would have been material had it been found for the defendant. For, had the verdict been for the defendant, it would have ascertained the fact that Samuel Barrow had? paid the debt, since the death of William Barrow ; and this would have been a good bar. But, being found for the plaintiff, it only ascertains that Samuel Barrow had not paid the debt, since the death of William Barrow. This may be true, and yet the plaintiff have no cause of action, for Samuel Barrow may have paid before the death of William, or William may have paid in his lifetime, or the administrator may have paid after his death.
    This is, in principle, like the case of Fletcher v. Henington, 2 Burr. 944. In. that case debt was brought on a bond, payable on OR before such a day. The defendant pleaded payment at a day before the day specified. Plaintiff demurred, and it was contended, in argument, that the judgment should be for the plaintiff, as the issue might be immaterial if found for him, though it would be material for defendant if found for him.
    But the court decided that the plea was good, and that the plaintiff should reply, “ That it was not paid at the particular day mentioned in the plea, nor at any time before or after that day," and this will bring the point to the material and proper issue, “ whether it has been ever paid at all, or not.” And see Esp. N. P. Part 2d, 62.
    But be this as it may, so far as it concerns the second plea, the replication does not at all put in issue any part of the matter plead in the first, even were it proper to make one replication to two pleas.
    McBride, for defendant in error.
    1. There are but two pleas in the record, and the replication says, “ as to the first and second pleas said plaintiff says,” See. If the replication was insufficient the defendant should have demurred. Having failed to do so, the defect, if any, after verdict, is cured by the statute of jeofails. Christian v.-, 2 How. S63; Smith v. Ware, Ibid. 895; Raysdale v. Caldicell, Ibid. 930.
    2. An error assigned is, that the judgment is de bonis propriis, when the suit is against the defendant below, as administratrix. Although this court have decided this to be error, in the case of Hill v. Robinson, 2 S. & M. 541, and Neely v. Planters Bank, '4 Ibid. 273, still, this court will be bound by the statute, (How.
    & Hutch. 532,) to pronounce such a judgment as the court below should have rendered. For the judgment, as rendered, was clearly a clerical error, and should have been de bonis testatoris.
    
    3. Although, strictly, the replication was not good, and if the defendant had demurred, the replication would have probably been held bad. Yet, as he failed to do so, the defect is clearly cured by the statute of jeofails, after verdict. See cases cited above.
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

It is first insisted that this judgment should be reversed, because it was rendered against the defendant to be levied de bonis propriis, when it should have been to be levied de bonis testatoris. This is an error for which it must be reversed; but this court may proceed to render the proper judgment on the verdict. Hill v. Robinson, 2 S. & M. 541. It is also insisted that one of the defendant’s pleas is unanswered. The writing obligatory sued on was made by the intestate, William Barrow, jointly with Samuel Barrow, who was not sued. The defendant pleaded, first, payment by William Barrow, in his lifetime, and second, payment by Samuel Barrow, since the death of William. There is but oue replication, which begins as an answer to both pleas, but which, in truth, traverses the payment by Samuel Barrow only, and concludes to the country, on which the defendant took issue. The replication was defective, because it professed to answer two pleas, which cannot be done by one replication. But as it professed to be an answer to both pleas, and the defendant took issue, it can only, after verdict, be regarded as mispleading, or insufficient pleading, and cured by virtue of the statute of jeo-fails. The defendant should have demurred.

Judgment reversed, and rendered in accordance with the foregoing opinion.  