
    Jarrett, adm’r of Acheson, against Wilson, adm'r of Wilson.
    Error to Lawrence Circuit Court.
    
    If the defendant pleads, after demurrer to the declaration overruled, he can take no advantage in this Court of insufficiency of the declaration. He should let judgment go upon the demurrer, and appeal.
    Upon issue on replication that there are goods unadministered, to the plea of plane adminislrant, the verdict ought to find the amount of assets unadmin-istered, and if it do not, the judgment is bad.
    And if in such case the judgment be that “the plaintiff recover of the defend- “ ant his debt and damages, &c., to be levied of the goods, &c. of his intes- “ tate, if any he hath unadmiaislorod, and if none, of his own proffer goods, “ &c.,” it is equally bad, whether one part of the judgment might be reversed and the other affirmed, or not.
    If one part could bo affirmed and the ether reversed, still the situation of the plaintiff in error would not bo bettered. Kis own property would still be liable, if he has no assets unadrainistered.
    The statute of the Stale curing informality, fro., does not extend to a case lijfe the present.
    This was an action of debt, commenced in the Lawrence Circuit Court, by Marcus Wilson against Jarrett, administrator of John Acheson, deceased, upon a writing obligatory, executed by Acheson in his lifetime, whereby he acknowledged that Wilson had advanced and become liable for him, A dieron, to tac amount of $SG76 70. At May Term, 1835, cf the Court below, the defendant below craved oyer of the writing obligatory, and demurred to the declaration, which demurrer was overruled, and the defendant below then filed his plea of plane admimstravit, except as to the sum of $240 93, to which plea the plaintiff below demurred, and his demurrer being overruled, he filed his replication, that the defendant ha'd in Ids hands at the commencement of the suit, goods and chattels of bis intestate unadminis-tered, to the amount of the debt — concluding to the country, to which the defendant below joined issue, and thereupon the following judgment was rendered — that the defendant having failed to produce evidence to sustain his plea, and saying nothing further in bar or preclusion, ése., and there being sufficient evidence of the plaintiff’s demand, “ it is therefore considered by the Court that the said plaintiff have and recover of the said defendant the sum of $>6G76 70, debt, and $1088 23, damages, and costs of salt, to be levied of the goods and chattels which were of the said John Acheson at the time of his death, in the hands of the said administrator, defendant as aforesaid, remaining to be administered upon; if so much thereof in his hands to be administered he hath not, then to be levied on the proper goods and chattels of said_defendant.”
    The errors assigned were, 1st, That the declaration was uncertain and insufficient: 2d, The overruling of the demurrer: 3d, That the Court rendered judgment without impannelling a jury, or having the case submitted to the Court: and 4th, The form of the judgment as against the proper goods and chattels of the administrator.
    Ringo, Chief Justice, and Dickinson, Judge, having been engaged in the case, did not sit therein, and it came on to be tried before Lacy, Judge, Catjsin and Haggard, Special Judges, in the name of Jarreti, adni’r., against Alexander Y/ilson, adm’r. of Marcus Wilson, the oiginal plaintiff below.
    Hall, for the plaintiff in error,
    contended 'that the demurrer to the declaration was wrongly overruled, and that there was error in the judgment below.
    Tiiapnall and Cocke, contra:-
    
    Various objections are taken to the declaration, the sufficiency of which cannot certainly at this stage of the cause be put in question. But the objections themselves are without form or propriety. See Statute of Jeofail, McCampbelVs Digest, 332. Demurrer overruled or withdrawn precludes the defendant from going back to the judgment.
    The plaintiff contends there is no order'on the record, referring the decision of the case to the Court. The Court could not have decided upon the case without the consent of the parties, and after judgment the legal presumption is conclusive that it was by virtue of that consent that the Court acted. Every thing will be presumed in favor of the judgment below, which is not contradicted by the record, is a principle too well settled and too frequently referred to before the Court to need a reference now.
    The judgment against the administrator de bonis intestati, is undoubtedly good. The residue of the judgment may be erroneous. If it is, as the two judgments are separate and not dependant on each other, so much of the judgment of the Court below as is de bonis pro-priis may be reversed, and the judgment de bonis intestati be affirmed. Tidd’s Practice, 1128*, 1129; 4 Burrows, 2018; 2 Bacon 228-29. A judgment for debt and damages may be reversed as to the damages and affirmed as to the debt. Tidd, 1128-9.
   Causin', Special Judge,

delivered the opinion of the Court: This cause comes before the Court upon a writ of error, sued out by the plaintiff in error, against the intestate of defendant in error, to the Lawrence Circuit Court.

The intestate of the defendant in error brought an action of debt in the Court below against the plaintiff in error in an instrument of' writing, signed and sealed by John Acheson, the plaintiff’s intestate, by which the intestate acknowledges his indebtedness to the defendant’s intestate in the sum of three thousand and seventy-seven dollars, and the liability of the defendant’s intestate for him to pay certain debts to sundry persons, amounting to the sum of three thousand two hundred and ninety-nine dollars and seventy cents, the two sums making the aggregate amount of six,thousand six hundred and seventy-six dollars and seventy cents. To the declaration filed the defendant in the Court below demurred, but the Court overruled the demurrer; he then pleaded that the action was prematurely brought, but withdrew this plea pleaded ji/eiie administravit, praeler two hundred and forty-two dollars and ninety-two cents, to which plea the plaintiff in the Court below demurred: the Court however overruled the demurrer, and he then filed his replication, in which he alleges that the plaintiff in error at the commencement of this suit, and ever since, had divers goods and chattels which were of his inféstate at the time of his death, in his hands as administrator, to be administered, of great value, to wit: of the value of the debt set forth in the declaration, and wherewith as administrator he could and ought to have satisfied the debt in the declaration mentioned; on this replication issue was joined.^ Under this_ state of pleading, the Court below (for it appears that no verdict was rendered by a jury) entered up judgment de bonis intestati et si non de bonis propriis against the plaintiff for the debt, and one thousand and sixty-eight dollars and twenty-three cents damages and costs. The errors assigned may be resolved into two: First, that the declaration is insufficient: Second, that the judgment given in the Court below is erroneous and illegal.

The first objection the Court considers untenable; admitting the insufficiency of the declaration, there being a cause of action apparent on the face of it, no such objection can be successfully urged before this tribunal. The proper time for making the objection has passed. The plaintiff, if he relied on the insufficiency of the declaration, should have appealed from the judgment of the Court, on the demurrer to the same. On this point, the authorities are too conclusive to admit of a doubt. See 2d Marshall's Reports, 143, 254, 436; 3 Bibb, 52; Comyn’s Digest, 6 v. 262; Story's Pleadings, 71.

It has been contended by'the counsel for the defendant that the objection against the judgment should not be sustained, because the judgment consists of distinct and independent parts, and that portion operating unjustly against the plaintiff’s own property may well be reversed, and the remaining part affecting him in his representative character of administrator affirmed: but in the view of the Court, whether the judgment consists of distinct and independent parts, so that one part might be reversed and the other affirmed, or the same is incapable of separation is a matter perfectly immaterial, as the omission to state in the judgment the amount of assets unadministcred vitiates the whole of it. The plea oí plena adminislravit, though not sustained, is not necessarily a false plea within the knowledge of the party pleading it; and if it be found against him, the verdict ought to find the amount of assets unadministered, and he Í3 liable for that sum only. Siglar vs. Haywood, 8th Wheaton, 675.

Suppose one part of the judgment were reversed and the other affirmed, would it better the situation of the plaintiff in error? Not in the least; for even then the plaintiff’s own property (upon the supposition that he has no assets to he administered,) would he exposed to the payment of the debt. Whether the plaintiff has assets unadminister-edornot, it is impracticable for this Court to determine. From the record non constat he has one cent; if the consequence suggested .would result from carrying into effect either part of the judgment, (and that it would seems too clear to be denied), a reversal of it is absolutely required. The act of the Legislature in regard to informality in pleading, relied upon in argument by the defendant’s counsel, the Court cannot consider applicable to the case presented by the record.

The judgment is therefore reversed, the case remanded for a new trial, and costs in this Court awarded to the plaintiff in error.

Nathan Haggakd, one of the Judges in this cause, dissents from the opinion of the Court herein delivered at this time, so far as the first assignment of errors is decided upon. It is not deemed necessary or important to decide on said assignment, because such decision would not vary the result of the case. And inasmuch as there was no withdrawal of the demurrer to the declaration prior to the plea to the merits being interposed, the reasons upon which that part of the opinion of the Court is predicated, have no force here. Therefore a non-con-currcnce on that point with that opinion is here stated, and said dissent ordered to be entered with the opinion delivered in this case.

G. N. CAUSIN,

NATHAN HAGGARD,

THOS. J. LACY.  