
    Ward vs. Moore.
    A general demurrer will reach the first defect in pleading, no matter by whom committed.
    A plea, (in an action upon a covenant tobe discharged in specific articles, when no place of delivery is fixed by the contract,) that the plaintiff did not give the defendant ten days notice to deliver the articles at any place, must aver that the defendant was a resident of the county where such contract was made, when it fell due, or it will be defective under the act of 1807, ch. 95, sec. 1, on demurrer.
    When there has been atrial of a suit as upon an issue, when in fact there was no issue joined, if the supreme court be satisfied that the merits have been reached, the judgment will be aflirmed under the act of 1809, ch. 126, sec. 10.
    This is an action of covenant, brought upon a covenant made by Ward to deliver to Moore, on the 10th day of November, 1832, or to his order, a two horse wagon. The covenant states the kind of wagon particularly. The breach assigned is the non-delivery of the wagon as covenanted to be done. The defendant pleaded that the plaintiff below did not give him ten days notice to deliver the wagon at any place, according to the requisitions of the statute. The plaintiff replied a demand at the residence of the defendant. To this replication the defendant demurred generally. Neither the covenant declared on, nor the plea of the defendant, shows that the cove-nantor resided in the county where the contract was made, nor does the replication of the plaintiff state any refusal by defendant to deliver the wagon when demanded, nor the time when demanded. The circuit court, upon argument of the demurrer, overruled the same and gave judgment for the plaintiff. - The record shows that there was a confession of judgment by the defendant, which was af-terwards set aside. The record also shows that there was a trial before a jury as upon an issue, when in truth there is none upon the record, and a judgment for the plaintiff. The defendant appealed in the nature of a writ of error to this court.
    
      Henry A. Garrett, for the plaintiff in error.
    
      Totten and Terrill, for the defendant in error.
   Peck, J.

delivered the opinion of the court.

The first error in the pleading was committed by the defendant, the plea not averring that the payer resided in the county where the contract was made. This makes the plea defective. It is not material therefore, what was the replication, the defendant’s demurrer hit bis own plea.

The circuit judge was right in reversing the judgment of the county court. But he would have been more intelligible if he had given us his opinion on the demurrer. It is highly probable he treated these brief replications and demurrers as nullities, as they always should be treated. Taking it for granted that such were his views of the pleading, then a writ of inquiry should have been awarded. Amidst irregularities committed in the pleadings and judgment, three things appear upon this record: First, a good declaration; Second, a confession of judgment, though that is set aside; Third, a trial as upon an issue, when in fact none appears, and judgment of the court for the plaintiff. We are not satisfied with the record, for its informalities, yet as there has been atrial as upon an issue, and as we are satisfied that the merits have been reached, we can, by virtue of an act of assembly authorizing a disregard of form and an adherence to merits, affirm the judgment.

Judgment affirmed.  