(June 13).

[1. As to the first error assigned,] this is a declaration in the common form, and we perceive no error in it. It is sufficient to maintain this action.

2 and 3. The second and third errors assigned may be considered together. The plea is performance generally and specially. The plaintiff replied generally and specially. If this plea contains a proper bar, well pleaded, then the replications, generally and specially, are not double and insufficient. And so, according to the plea, the replication sets out a sufficiently special breach of the condition of the writing obligatory. The replications are proper, if the plea is good. The plea and replication were both admitted by the respective counsel in the court below; and in this general way, we must suppose that they, both in form and substance, are well pleaded. In our loose mode of proceeding, such pleas and replications ought not to be objected to on a writ of error. The party may, in court below, insist upon and demand formal and regular pleadings; and there all pleading ought to be done formally and according to the rules of special pleading. But supposing advantage might be taken of this kind of pleading here, yet as the defendant has made the first fault, judgment must be against him according to the following cases.

As if the count be bad, there shall be judgment against plaintiff though the plea is insufficient. As debt by administrator ÚMrante minore aetate of an executor after executor has attained full age; though plea bad, yet judgment against plaintiff for he has no cause of action. 5 Co. 29a, 5 Com.Dig., title “Pleader” 466, c. 1. But if it appears that plaintiff has no cause of action by the plea only, and not by declaration, and the plea is bad, plaintiff shall have judgment. 1 Lev. 184, Com.Dig., idem. Str. 302, if the plea is naught, and replication likewise, and defendant demurs, judgment shall be for plaintiff for first fault in plea. 5 Com.Dig. 467. Vide Doug. 90, Boyce v. Whitaker, Str. 302. If plaintiff does not demur to defendant’s defective plea, but replies, and his replication shows that he has no cause of action, there shall be judgment against plaintiff; as in declaration on. bond, if defendant pleads performance, and plaintiff assigns an insufficient breach, there shall be judgment against him though plea was defective, 5 Com.Dig. 468, c. 3; 2 Cro.Jac. 133; 8 Co. 133, 136; Lut. 609; Hob. 14.

4. This error is naught.

5. It does sufficiently appear by the record that the jurors were summoned and returned by the sheriff according to the form of the Act of Assembly, 4 Del.Laws 449, c. 158, s. 7. It is *295not necessary the whole panel should be set out, nor that the time of the summons and qualifications of the jurors should be stated in the record. Enough appears to show that they were summoned by the sheriff and were the jury proper to try the issues in this cause. If the sheriff did not summon the jury according to the Act of Assembly, or if they had not the proper qualifications, these might then have been good cause of challenge; but the defendant cannot here question this jury. They were summoned, impannelled and returned by the sheriff, and this is enough. So the record states.

6 and 7. These two errors admit of the like answer as the fifth.

8. Error is that it does not appear that the said first six named of said jurors who tried the issues aforesaid were drawn, or tried, or elected as by law they ought to have been. Our Act of Assembly, 4 Del.Laws 449, c. 158, s. 8, in relation to drawing or electing the jury, is substantially the same as 3 Geo. II, c. 25, s. 11. Our Act, s. 11, makes provision for tales de circum-stantibus. At trial at bar in England the writ for summoning tales is issued at common law; but at the assizes, or nisi prius, by virtue of the Statute 35, Hen. VIII, c. 6. The provision in Statute 35, Hen. VIII, is similar to our Act of Assembly. The record here is like the form in 3 Bl.Comm. 364, Appendix p. 9, and I conclude that the form is all right, and that it sufficiently appears that the first six were drawn. It is stated that they, the talesmen, come and together with the said (the first six) “the other jurors aforesaid impannelled and sworn or affirmed being elected tried and sworn”; now here the words “being elected tried and sworn” apply to the first six as well as to the talesmen, and consequently they all appear to have been drawn or elected. Besides, the 11th section of our Act may possibly leave some doubt as to drawing where a sufficient number does not appear without talesmen. See the similar form, 3 Ld. Raym. 24.

9. Error that it does not appear how the said first six named were sworn or affirmed, nor the nature of the oath or affirmation. The words, “being elected, tried and sworn or affirmed to speak the truth of and upon the premises,” apply, as before observed, to the first six as well as to the tales, and consequently the oath appears to be rightly administered to all. There are two cases in Cro.Jac. 119, 207, which are direct authorities in relation to the drawing or electing the jury, because the British Acts of Parliament correspond with our Act of Assembly. Vide 3 Com. Dig. 632.

I am therefore of opinion that this judgment should be affirmed.

*296Johns, C. J., Cooper and Davis, Justices of the Supreme Court, concurred.

Judgment affirmed.1