
    Lewisburg.
    Henderson v. Stringer.
    1849. July Term.
    
    ( Absent Cabell, P. and Brooke, J.)
    1. A demurrer to an entire declaration, whether general or special, raises the question whether there be, or be not, matter in the declaration sufficient to maintain the action :
    If there be several counts, and one is good, that is sufficient to maintain the action, and the demurrer must be overruled.
    If there be a single count containing several breaches, any one of which is well assigned, that is sufficient to maintain the action.
    If there be a single count containing a demand of several matters which in their nature are divisible, any one of which is well claimed, that is sufficient.
    2. Whether the objection be that one of several counts, or that one of several breaches, or that part of plaintiff’s demand which is of a distinct and divisible nature, is bad, the demurrer should be to that count, or to that breach, or to that part of the demand, as the case may be, which is bad.
    
      3. A demurrer to a declaration with a statement, as special cause of demurrer, that one of the counts, or breaches, or parts of the plaintiff’s demand of a distinct or divisible nature, is bad, does not alter the character of the demurrer. And if there be matter enough in the declaration to maintain the action the demurrer must be overruled.
    4. Upon a demurrer to a declaration for a misjoinder of actions, the objection, if well founded, goes to the whole declaration.
    
      •5. A declaration in debt contains but one count, and claims the sum of $ 569, made up of the aggregate amount averred to be due by two single bills ; by the first of which the defendant bound himself, as it is alleged, to pay the plaintiff t® LOO in cash, and $85 in good cash notes; and by the second he bound himself to pay to the plaintiff $ 385. The breach laid is that “ the defendant has not paid the said several parcels of the said sum of $ 569, or any or either of them, or any part thereof, in money or good cash notes.” The defendant demurred to the declaration, and stated four special grounds of demurrer. Held : The demurrer cannot be sustained.
    6. The declaration counts on a bond by which defendant bound himself to pay. The bond offered in evidence is dated 2d September 1837, and says for value received, 1st of March next, I bind my heirs, &c., to pay. Held :
    1. That from the face of the paper, it is to be inferred, the obligor intended to bind himself. There was, therefore, no variance in that respect.
    2. That it was sufficient to set out the bond according to its legal effect; and as this suit was against the obligor only, it was only necessary so to describe it, as to shew that he was hound. There was, therefore, no variance in this respect.
    This was an action of debt brought in the County court of Wood county, by John G. Stringer against James Henderson. At the May rules in the year 1838, the plaintiff filed his declaration, in which he demanded the sum of 569 dollars 85 cents: for that the defendant heretofore, to wit, on the 2d day of September 1837, at the county aforesaid, made his single bill sealed with his seal, and to the Court now here shewn, the date whereof is on the day and year aforesaid, whereby on the 1st of March next ensuing the date of the said single bill, he, the defendant, bound himself to pay to John G. Stringer 100 dollars in cash, and 85 dollars in good cash notes then due, which is parcel of the said sum of 569 dollars 85 cents above demanded. And whereas the said defendant, on the 1st day of January 1838, at the county aforesaid, made his other single bill sealed with his seal, &c., whereby he promised to pay to John G. Stringer 384 dollars 85 cents, which is the residue of said sum of 569 dollars 85 cents.
    
      The breaches assigned were that the defendant had not paid to the plaintiff the said several parcels of said sum of 569 dollars 85 cents, or any or either of them, or any part thereof, either in money or good cash notes, according to the tenor and effect of his said single bills.
    The defendant appeared at the June rules, and without craving oyer of the single bills declared on, filed a special demurrer to the plaintiff's declaration ; and assigned for causes of demurrer, 1st. That the said declaration is double in blending matters of debt with covenant as to the charge of 100 dollars in cash, and 85 dollars to be paid in good cash notes. 2d. Because debt cannot be maintained upon the 85 dollars to be paid in cash notes. 3d. Because debt and covenant cannot be joined in the same action. 4th. That the conclusion is illegal and bad in averring that the defendant hath not paid to the plaintiff the said several parcels of the said sum of 569 dollars 85 cents, or any or either of them, or any part thereof, either in money or good cash notes; because a debt is an entirety and indivisible.
    The defendant on another day pleaded payment; and the plaintiff joined in the demurrer, and took issue on the plea.
    When the cause came on for trial, the County court overruled the demurrer; and upon the trial of the issue upon the plea of payment, when the plaintiff offered in evidence the first paper declared on, the defendant moved to exclude it; but the Court overruled the motion and admitted the paper; and the defendant excepted. The paper is as follows: For value received, first of March next, I bind my heirs, &c., to pay to John G. Stringer one hundred dollars in cash and eighty-five in good cash notes then due. Witness my hand and seal this 2d September 1837.
    This note is for a half lot near my stable.
    
      James Henderson,
    
    
      There was a verdict and judgment for the plaintiff for the sum of 569 dollars 85 cents, with interest. Whereupon the defendant obtained a supersedeas from the Judge of the Circuit court of Wood county; but when the cause came on to be heard in that Court, the judgment of the County court was affirmed; and the defendant then applied to this Court for a supersedeas, which was granted.
    
      Fisher, for the appellant,
    insisted:
    1st. That an action of debt would not lie upon the first single bill, as it was described in the declaration; it being in part for good cash notes, which could not be recovered in an action of debt. Beirne v. Dunlap, 8 Leigh 514. The declaration was, therefore, demurrable.
    2d. That this single bill should not have been permitted to go in evidence to the jury, because : 1st. There was a variance between the single bill, as described in the declaration, and that offered in evidence, in this, that it was described as binding the defendant, whereas the paper, offered in evidence, only bound his heirs. And it was insisted that no action could be maintained upon it, against the defendant. For which proposition the counsel cited 2 Thom. Coke 308; Oates v. Frith, Hobart’s R. 130; 16 Viner’s Abr. p. 62; Shower’s argument in his reports, p. 381. 2d. The declaration describes the single bill as binding the defendant alone, whereas the paper, offered in evidence, bound his heirs in terms.
    There was no counsel for the appellee.
   Daniel, J.

A demurrer to an entire declaration, whether general or special, raises the question, whether or no there be matter in the declaration sufficient to maintain the action. If the declaration contain several counts, and any one be good, it follows that there is matter enough to maintain the action; and upon an issue joined on such demurrer, judgment would be necessarily given for the plaintiff. The same rule applies there is a demurrer to a single count containing several breaches, any one of which is well assigned; or to a demurrer to a single count containing a demand of several matters which in their nature are divisible, and any one of which is well claimed. Whether the ground be, that one of several counts, or that one of several breaches, or that part of the plaintiff’s demand of a distinct and divisible nature is bad, in every of these cases, the defendant should demur to that count, or to that breach, or to that part of the demand, as the case may be, which is bad. In no case can he demur to the whole, and ask that judgment be given in his favour in part only. When the demurrer is, in terms, a demurrer to the whole declaration, a statement, as special cause, that one of the counts, or breaches, or parts, in the cases just supposed, is bad, does, in no respect, narrow the question for the decision of the Court; and if there be matter enough in the declaration to maintain the action the demurrer must be entirely overruled. 1 Rob. Pr. 282-3; Powdick v. Lyon, 11 East’s R. 565; Woodford’s heirs v. Pendleton, 1 Hen. & Munf. 303; Martin v. Sturm, 5 Rand. 693; Power v. Ivie, 7 Leigh 147; Hollingsworth v. Milton, 8 Leigh 50. Where a misjoinder of actions is stated as the cause of demurrer, the objection, if good, goes to the whole declaration. In such case the objection is no more applicable to any one count or part of a count, than to any other; and if sustained, shews that the whole declaration is bad. The decision of the question, whether there be a misjoinder or no, depends, however, on the form of the action, as if, for instance, a cause of action which ought to be laid in assumpsit, be improperly laid in case, and joined with a count in trover, no objection can be taken with effect on the ground of misjoinder, hut only the particular defective count, should be demurred to. 1 Chitty’s Plead. 228; Samuel v. Judin, 6 East R. 333, 336. The declaration in this case demands the sum of five hundred and sixty-nine dollars and eighty-five cents, the said sum being the aggregate averred to be due by two single bills, by the first of which the defendant bound himself it is alleged, to pay to the plaintiff, one hundred dollars in cash, and eighty-five dollars in good cash notes; and by the second of which, the defendant bound himself to pay to the plaintiff the sum of three hundred and eighty-four dollars and eighty-five cents, the residue of the sum demanded; and the breach assigned is, that “the defendant has not paid the said several parcels of the said sum of 569 dollars and 85 cents, or any or either of them, or any part thereof, in money or good cash notes.” The defendant filed, at rules, in the office, a demurrer to the whole declaration, and stated four several causes of demurrer. Of these, the second cause stated is “ because debt cannot be maintained upon the 85 dollars to be paid in cash notes.”

As the debt demanded in the declaration consists of two several parcels, which are divisible, one of which, to wit, that evidenced by the single bill for three hundred and eighty-four dollars and eighty-five cents, is, by the pleading, admitted to be well claimed, the legal question sought to be raised by this cause of demurrer, is not properly presented. The question could only arise on a demurrer confined to so much of the declaration as relates to the first single bill therein recited. The first cause of demurrer stated is “that the declaration is double in blending matters of debt with covenant as to the charge of 100 dollars in cash and 85 dollars to be paid in cash notes:” and the third, because “ debt and covenant cannot be joined in the same action.” It will be seen that the declaration is, throughout, in all its parts, in form a declaration in debt. These causes of demurrer therefore must be governed by the same rules of pleading that have been applied to the second. The objections sought to be presented to the consideration of the Court, could only be taken with effect by demurring to the parts of the declaration relating to the first single bill, on the ground that the declaration thereon, was, as to the 85 dollars to be paid in cash notes, in form a declaration in debt, when the proper form for so much of the demand was covenant. The objections cannot be considered on a demurrer to the whole declaration. I have already expressed the opinion that the debt demanded in the declaration consists of parcels, in their nature divisible. I therefore regard the objection to the conclusion of the declaration, taken in the fourth and last cause of demurrer stated, as untenable. For these reasons, I am of opinion that the Circuit court properly overruled the defendant’s demurrer.

No oyer of the papers declared on having been craved, the defendant, on the trial, moved the Court to withhold from the jury the single bill for one hundred and eighty-five dollars. The motion was overruled, and a bill of exceptions to the opinion of the Court taken.

The counsel for the appellant in his written notes of argument, assigns two reasons for reversing the opinion of the Court, in permitting the paper in question to go to the jury. First, that the declaration recites a bond by which the defendant binds himself whilst the paper produced on the trial was a bond by which he binds his heirs alone ; and it is argued that such an instrument is wholly inoperative and void. Secondly, that if the instrument offered in evidence does import a personal obligation on the defendant, it binds the heir, also, and that there is therefore a variance, inasmuch as the declaration recites said instrument as a bond, binding “himself” (the defendant) only.

In support of the first proposition, authorities have been cited, declaring the general proposition, that if a man make a feoffment in fee, and bind his heirs, and not himself, to warranty, or bind his heirs, and not himself, by bond, to pay a sum of money, the warranty and bond are respectively void. Whether this may, or may not be a rule of the common law universally applicable to instruments in which it is the plain and manifest intention of the persons executing them to bind their heirs only, I do not deem it necessary to enquire. The instrument in question, is one by which the defendant, for value received, expressed on its face, proceeds in terms, to bind his heirs, on the first of March next ensuing its date, to pay, &c. 100 dollars in cash, and 85 dollars in cash notes then due; and is dated 2d September 1837. It is not fair to presume that the defendant intended to execute a void paper, or that the parties to the instrument anticipated the death of the defendant before the time stipulated for the payment of the money and the delivery of the notes. Giving to the instrument the benefit of the familiar maxim, ut res magis valeat quam pereat, and of such a construction as will, in all reasonable probability, effectuate the intention of the parties, I feel well warranted in regarding the payment of the money and the delivery of the notes as a duty or obligation to the discharge of which the defendant intended to bind himself personally, and am of opinion that the evidence of this intention is so manifested on the face of the paper as to make the same, in legal contemplation, the bond of the defendant. I am therefore further of opinion, that the first reason assigned by the defendant, does not present any valid, objection to the course of the County court in permitting the bond to go to the jury. I am also of opinion, that in reciting the paper in question in the declaration, it was only necessary to set it out according to its legal effect; and that as there was nothing in it to qualify the obligation of the defendant, and the suit thereon was against him only, it was only necessary so to describe it, as to shew that he was bound; and that, therefore, no variance arises from the fact that the declaration recites a bond binding the defendant, and that the bond offered in evidence, is one binding the defendant and his heirs. I am therefore of opinion, that the County court did not err in permitting the bond to be given in evidence on the trial.

I can perceive no error in the proceedings, and am of opinion to affirm the judgment, with costs.

Allen and Baldwin, J’s concurred in the opinion of Daniel, J.

Judgment affirmed.  