
    Mullins against Cabiness.
    Appeal.
    
      November, 1820.
    1st. Defendant's demurrer mends by leare cannon or in the judgement on demurrer.
    2d. By written article piamtrn agreed to serve defendant as his over seerfor 2months, for which service defendant pay hím $212 on 1st day of Jan. traíante are independent.
    
      JAMES MULLINS declared in covenant ágainst Charles Cabiness, that by deed of said parties, dated 28th day of Marth-1817, plaintiff agreed to live with defendant in the capacity of an overseer for the term of 12 months (“ meaning for the year 1817”) to manage’ defendant’s business to the best of his skill, and to furnish one horse, &c. for which services the said defendant bound himself to pay plaintiff $212 on the first day of January 1818 — averred that “ in “all things he hath kept and performed his part Of said cove-' nant,” and assigned as breach, that defendant had not paid the $212.
    
      Cabiness demurred, and assigned as causes- of demurrer: —1st. That the declaration does not contain a sufficient aver-jment of the performance of the condition precedent, in said covenant. 2d. Declaration does not aver that plaintiff Jived with defendant in the capacity of an overseer for the term of 12 months, and managed defendant’s business to the best ofhis (plaintiff’s) skill, &c. and furnished one horse, &c. The Court below sustained the demurrer, and the plaintiff asked and obtained leave to amend his declaration ; and thereupon filed an amended declaration, in which he recited the written agreement as before, to serve defendant as an overseer for the term of 12 months (“ which- term said plaintiff’ says was for “and during the year 1817”).to manage said Cabiness’s business, &c. — “ and the said James Mullins in fact saitb, that he “ did well and truly live with said Cabiness in the capacity of “ an overseer, agreeably to .the terms of said covenant, for!2 “ months, to wit, during said year .1817, at said county ; that “he managed the business of said Cabiness during the time “ he acted as his overseer as aforesaid to the best of his skill “ and ability; and that he furnished one horse to tend and assist in cultivating said farms agreeably to the. true intent “ and meaning of said covenant,” and assigns for breach that Cabiness has not paid the $212, &c.- Cabiness, after Oyer of the articles of agreement, again demurred, and the Court below sustained the. demurrer.
    
      Mullins appealed to this Court, and assigned as Errors
    list. The demurrer to the original declaration Ought to have<been overruled.
    2d. The demurrer to the amended declaration ought to .have been overruled.
    
      Minor for appellant
    cited, 5 Gomyn Dig. Pleader, c. 55. •;i ;.Saund. 319 — 662. 1 Chy. Pledgs. 213, 216, 232, 234. Phillip’s Evs. 41.6. 2 Johnson’s R. 272, 387. ¡10 Johnson’s ;R. 204.
    . McKenly for appellee
    cited Co. Litt. 208. . 8 John. 189,
   • Judge Sajfold

delivered the opinion of the Court.

As to the first assignment — The plaintiff acquiesced in the opinion of the Court, on the demurrer to his first declaration, and asked and obtained leave to amend. This judgment therefore was not final, and-is not in our opinion subject to revision here.

As to the second assignment — It is contended by the ap-pellee that the term of service commenced from .the date of the articles, in which no time is mentioned for beginning the services, and which cannot be explained by parol evidence. But the appellee agreed to pay the money on the ■first day of January 1818, some timé before the expiration of 12 months from the date of the. articles of agreement. .If the term of service was as the counsel for the appellee contends, the averment of performance in, the declaration was unnecessary and mere surplusage, (2 John. 272, 387. 10 John. 204.) If the term was as is contended by appellant, there is a sufficient averment of performance of the covenants on his part. But we' consider the covenants as independent. The second demurrer ought to have been overruled.- The judgment must be reversed; and as the written articles ascertain the sum due, judgment must be render-' ed here for that sum and interest. Laws Alaba. 465, sect. 3.

Judges Clay and- Webb not sitting..  