delivered the opinion of the court.

This suit was instituted by the plaintiff against the defendant, as executor of Stuart Gaither, to recover her distributive share of her husband’s estate. The suit was brought upon the testamentary bond; the defendant pleaded performance; and the plaintiff set out her cause of action in the replication, which contains two breaches; the first of which only requires the attention of this court. In that breach she charges, that she as the widow of Stuart Gaither, was entitled to one-third part of his personal estate, which remained after the payment of all debts and charges in the settlement of said personal estate, and to the proceeds of the collections of all debts, dues and demands, due and owing to the said Stuart Gaither at the time of his death; she then alleges, that the executor at the time of the death of Stuart Gaither, was indebted to him in the sum of [*172] $1502.71, and the legal interest thereon, which debt was givers in by the executor in the list of debts as being due and owing from him. She then avers, that the said executor in settling his account with the orphans’ court, neglected and refused to account for the said sum of money due from him according to law, or to make any distribution thereof, by accounting to her for her proportion, or one-third part thereof; and that he hath altogether refused to account for the said sum of money or any part thereof. To this breach the defendant rejoins, first, a set off of a larger amount of money due to him by the deceased at the time of his deáth, to wit, the sum of $3000 current money, out of which he offers to set off, and allow the full amount of the said claim, given in by him, as a claim against himself, in extinguishment pro tanto, of the aforesaid claim of the said defendant, against the said deceased. He also rejoins in virtue of his said claim against the deceased at the time of his death, a retainer of the sum of money given in as a debt due by him to the estate, in part extinguishment of his said claim, whereby he alleges, that his debt due to the estate, has been absorbed and paid, and that he as executor, was not bound to distribute the same, or compellable by law, to account for the same, otherwise than he has done in giving credit as aforesaid, in part of his said claim against the said deceased. To these rejoinders the plaintiff demurs, and the defendant joins in demurrer. Upon this state of the pleadings, according to well established principles, it is the duty of the court to examine the whole record, for the purpose of discovering the first substantial defect in the pleadings, on which ever side it may have occurred; and to give judgment against the party first in default, or committing the first error in that respect. After having performed this duty, we think that the first substantial error in the pleadings in this case, is found in the replication of the plaintiff, in which she claims one-third part of the debt due from the defendant, to the estate of her husband Stuart Gaither, without averring, that she was entitled to the same, after all debts due from his estate had been satisfied and paid. Here then she manifestly committed an [*173] error substantial in its nature, and going to the very gist of her claim, because until the debts were paid, she was clearly entitled to nothing. In this case the replication performs the office of a declaration, and first exhibits the plaintiff’s real cause of action, and as the Court of Appeals have said in 3 Gill & John. 388, it is not upon the evidence, but upon the pleadings and evidence applicable to the pleadings, that a plaintiff can recover in any case. It is therefore always necessary, that the declaration should set out a good and sufficient cause of action to be judged of by the court, otherwise it is in vain to look to the evidence in the cause, upon which there can be no recovery without a case made in the declaration. JUDGMENT AFFIRMED.