
    KENNON versus M’RAE.
    Y In nn action by tho indorsee* of a promissory noto, against the indorser, final judgment, on demurrer, cannot be rendered by the court, for the plaintiff, without the intervention of a jury, on a common money count.
    2. A count in a declaration, by tho indorsee of a promissory, note, against the indorser, omitting an averment of demand of payment of the maker, and notice, is bad.
    Ths plaintiff below, M’Rclc, declared in assump-sit, in Tuskaloosa County court, against the defendant there, as indorser of a promissory note. There were two counts in the declaration — the firs: setting out the contract of indorsement in sptcial terms, but containing no averment, of the presentment of the note, to tho maker thereof, for payment — his refusal to pay, and notice to'tho indorser; and contained, as excuso therefor, tho allegation, that,the note had been, indorsed aft or duo. Ths second count was for money had and received.
    On general de'murrcr, judgment final was rendered, by the court, in favor of the plaintiff below; whereupon tho defendant took a writ, of error hero.
    
      Wilson, for plaintiff — Stewart, contra.
    
   Lipscomb, C. J.

This was an action, brought by the indorsee, against an indorser of a promissory nóte, eudorsed wheu over due. The declaration contains two counts; the first on the indorsement, and the second, a common money coont. The first count contains no averment of a demand of payment, from 'the maker, and notice. To this declaration,- a general demurrer was filed, and on it, a final judgment rendered for,the plaintiff.

The first count is bad; and' had the demurrer been confined to it, there is no doubt it would have been sustained. But, as the second was a good count, the demurrer was, property enough, overruled. The court, however, erred in rendering filial judgment, for the plaintiff, without the intervention of a jury. The plaintiff’s right to a judgment, can only be sustained by referring to the second, or common count; and this, when taken and viewed separate, and distinct, from the first, does not show such a cause of action as would authorise a final judgment to be entered up, without the intervention of a jury. It does not appear tobe founded on an instrument of writing, ascertaining. the sum duo. If the first count had contained the averments essential to make it a good one, the judgment would be sustained, by referring to it; but as that count is bad, neither the second count, nor the judgment, can derive any support from that source.

The judgment should have been interlocutory, and an inquest, of damages executed. It must, therefore, be reversed and the cause remanded.  