Green v. Dulany , 2 Va. 518 ( 1811 )

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, an 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, “ that the appellee take nothing by <his bill, but for his false clamour be in mercy,” &c.