
    Power v. Ivie.
    February. 1836,
    Richmond.
    Pleading and Practice-Declaration — Counts—Some Good, Some Bad — (ieneral Demurrer — Effect.—It seems that if there be several counts in a declaration, one good and all the rest bad, and a general demurrer is filed to the whole declaration, the demurrer ought to be overruled, because there is one good count.
    Same — Same—.Same—Same—Effect of Verdict. — And, whatever be the better practice, the overruling of the demurrer in such case, is no cause tor reversing a judgment after verdict on issue joined.
    Same — Same—Plea—Application to Amended Declaration.: — To a declaration in assumpsit, defendant pleads the general Issue; afterwards plaintiff, under leave to amend, files a new declaration as a substitute; defendant does not plead anew; the jury is sworn to try the issue; verdict for plaintiff : Held, that, as the plea to the first declaration was applicable to the new one. and was not with • drawn, defendant must be understood to have still rested his defence on the same plea, and the verdict is good.
    Assumpsit, in the circuit court of Brunswick, by Ivie against Power. The origina] declaration contained four counts; the first, second and fourth, special counts on three promissory notes for 500 dollars each ; the' third, the common count on an insimul computassent. The defendant pleaded non assumpsit, and also put in a general demurrer to the three special counts, collectively, not severally to each of them. The court overruled the demurrer. The plaintiff then obtained leave to file an amended declaration ; and he filed a new declaration as a substitute for the first, containing eleven counts, ten of which were special counts upon the three promissory *notes, and the other the common count on an insimul computassent. The defendant demurred generally to the whole of this new declaration. The court overruled this demurrer also. Then, without any new plea pleaded to the new declaration, a jury was sworn “to try the issue joined,” and found a verdict for the plaintiff for 1500 dollars, with interest &c. and judgment was entered accordingly. The defendant applied by petition to this court for a supersedeas to the judgment; which was allowed.
    Johnson, for the plaintiff
    in error, contended, that all the special counts in the original and amended declarations were fatally defective, and the only good counts were the two common counts of insimul computassent. And then he insisted, 1st, That the demurrer to the three special counts in the first declaration, should have been sustained, and that the demurrer to the whole of the new declaration should have been sustained as to the ten special counts which were defective, and overruled only as to the good count of insimul computassent, instead of being entirely overruled. Mr. Chitty, indeed, stated the rule to be, that “if there be several counts, or in covenant several breaches, some of which are sufficient and the others not, the defendant should only demur to the latter, for if he were to demur to the whole declaration, the court would give judgment against him;” 1 Chitt. Plead. 643. And this court had approved that practice in Roe v. Crutchfield, 1 Hen. & Munf. 361. But judge Green, in Cooke v. Thornton, 6 Rand. 11, shewed, that if that was the correct rule of practice in'England, where if there was a single bad count and many good ones, a general verdict would not entitle the plaintiff to judgment; yet the rule was reversed by the statute of Virginia, according to which, if there was a single good count with many bad ones, a verdict for entire damages was good; 1 Rev. Code, ch. *128, g 104, p. 512. But, he said, by the better opinion, the correct rule of practice in England was, that, in the case of several counts in a declaration some good and some bad, or in covenant several breaches some well assigned and some not, and a general demurrer to the whole declaration, the plaintiff should have judgment for so much as was good; 1 Was. Saund. 286, n. 9; Pinkney v. East Hundred, 2 Id. 379, n. 14. — 2ndly, he objected, that there was, in truth, no issue joined in this case; that though the general issue which had been pleaded to the original declaration, might have stood as a plea to the new declaration if that had been only an amendment to the first; yet as the new declaration, here, was a substitute for the first, and discarded it altogether, the plea pleaded to the first declaration was also discarded.
    Taylor answered, that the case of Roe v. Crutchfield had settled the practice in Virginia, upon full consideration: all the counts had constantly followed it ever since, as the circuit court had done in this case: it could answer no good purpose, and would be inconvenient to change it now. And, certainly, this was no good cause for reversing the judgment; per Cabell, J., in Cooke v. Thornton, 6 Rand. IS, 16. As to the objection, that there was no issue in the cause, he said that this was not now an open point: that it was well settled, that where there was a plea to one declaration, and then an amended declaration, to which the plea pleaded to the first was applicable, and that plea never withdrawn, the defendant should, after verdict, be regarded as having stood on that plea. Eppes v. Demo-ville, 2 Call 22; Vaden v. Bell, 3 Rand. 448.
    
      
       Pleading and Practice — Declaration -Counts — Some Good, Some Bad —General Demurrer — Eftect. — In
      Thompson v. Boggs, 8 W. Va. 69, it is said: "If a declaration contains two counts, and the defendant appears and files a demurrer to the .declaration, and the declaration contains one good count — the demurrer should be overruled. — The Duke of Bedford v. Aicock, 1 G. Wils. 248: Roe v. Crutchfield, 1 H. & M. 361: Whitney v. Crosby, 8 Caines (N. Y.) 89; Gidney v. Blake. 11 Johns. (N. Y.) 54; Monell v. Colden, 18 Johns. (N. Y.) 402: Mumtord &c. v. Fitzhugh &c., 18 Johns. (N. Y.) 457: Power v. Ivie, 7 Leigh, 147 ; Hollingsworth v. Milton, 8 Leigh 50.” To the same effect the principal case is cited in Henderson v. Stringer, 6 Gratt. 134.
      On this question, see foot-note to last case; Smith v. Lloyd, 16 Gratt. 309; Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225; Ferrill v. Brewis, 25 Gratt. 765; Jarrett v. Jarrett. 7 Leigh 97.
      The same is true where there is a general demurrer to a declaration containing a single count some of the breaches of which are well assigned. Martin v. Sturm, 5 Rand. 693; Wright v. Michie, 6 Gratt 354: Henderson v. Stringer, 6 Gratt. 130; Wright v. Smith, 81 Va. 777. See monographic note on “Demurrers ” appended to Com. v. Jackson, 2 Va. Cas 501.
    
    
      
      Same — Same—Plea—Application to Amended Declaration. — A plea filed to the first declaration and not withdrawn, will apply to an amended declaration. Clarke v. Ohio River R. Co., 39 W. Va. 743, 20 S. E. Rep. 700, citing Power v. Ivie, 7 Leigh 147. The principal case is also cited on this question in foot-note to Eppes v. Demoville, 2 Call 22.
    
   BROCKENBROUGH. J.

This record certainly exhibits but a poor specimen of skill in pleading. Here are fifteen counts in a declaration in a plain action of assump-sit, the greater part of which are so defective, that they *will not stand the test of a general demurrer. Yet the defendant’s attorney was not adroit enough to avail himself of the defects, and has sustained a defeat in the court below; and I do not think this court can help him.

Taking up the question upon the original declaration with its four counts, and the pleadings and proceedings upon it, on the hypothesis, that the trial was on the original declaration ; the first, second and fourth counts were demurred to; and, without examining them very critically, I am inclined to think they are all bad on general demurrer. The third count is on an insimul computassent, and it was not demurred to. The court overruled the demurrer, and a trial was had on the plea of non assump-sit to the four counts. There was a general verdict for the plaintiff. The defendant did not move the court to instruct the jury to disregard the faulty counts, as he might have done. Entire damages having been given, the statute says the verdict shall be good. It' shall be good, because the evidence before the jury might have been applicable to the good count, and have completely sustained its allegations. If the evidence was really such as wou’d not fit that count, the defendant might have applied to the court to instruct the jury, that if in their opinion the count was not supported by the evidence, they ought to find for the defendant on that count; and if the court refused to give such instruction, the defendant might have excepted, and in his bill have inserted the evidence, which would have shewn to the appellate court, whether or no there should have been a verdict for the plaintiff on that count. If there ought not to have been, then the judgment founded thereon would have been reversed, because of the insufficiency of the other counts to support the action, and of the good count not being' supported by the evidence. But, as the case stands, I do not think the judgment should be reversed, although *the demurrer to the three counts ought to have been sustained. No injury was done to the defendant by overruling the demurrer, considering it as a demurrer to each of the three counts; because there was one good count, which, it appears, the plaintiff supported by his proofs.

But if I am wrong in this view of the proceedings on the original declaration, yet on the amended declaration I think it is clear, that the verdict and judgment must be supported. There are eleven counts, and one of them, that on the in-simul computassent, is clearly good. This amended declaration is a substantive one, and takes the place of the original; and in fact the trial was on that declaration. The defendant demurred to the whole declaration. It has been too long established to be now doubted, that if a declaration contains sundry counts, some of which are good and some bad, and there is a general demurrer to the whole, the demurrer ought to be overruled. Roe v. Crutchfield, 1 Hen. & Munf. 361; Duke of Bedford v. Alcocke, 1 Wils. 248.

The remaining objection is, that on this amended declaration the jury are sworn to try the issue, when in fact there was no plea pleaded by the defendant to that declaration, and consequently no issue to be tried. But the answer given was, that non assumpsit was pleaded to the original declaration, and was never withdrawn, and that that plea stood as the plea to the new declaration; and ' so are the authorities. Eppes v. Demoville, 2 Call 22, and Vaden v. Bell, 3 Rand. 448.

I think the judgment ought to be affirmed.

CARR, J.

The questions here do not touch the merits, but turn entirely on the pleadings. I incline to think that the first .count in the original declaration was good on general demurrer; and if the case rested wholly on that point, I should not be inclined to reverse the judgment. But I consider the original declaration *wholly discarded from the cause by the subsequent proceedings. Although the plaintiff had the judgment of the court in his favour upon the demurrer to the original declaration, he did not choose to rest his case upon that; but, with leave of the court, began de novo, and filed an entirely new declaration; one, not purporting j.o be part of another, but forming a whole within itself, and taking place of the former, just as much as if it had never been filed, or as if there had been formal leave to cancel it and substitute the last for it. There could have been no other end but this substitution, in such a proceeding. After this, I consider it perfectly immaterial, whether the demurrer to the former counts was correctly overruled or not; that whole proceeding was withdrawn, and gone over again. The defendant, if he had chosen, might have taken his chance of objecting to this proceeding ; but he did not choose to do so: he preferred to let his plea stand, and to file a general demurrer to the new declaration, and by these proceedings he must stand or fall. That there are good counts in this new declaration, I have no doubt; and as the demurrer is general to all the counts, I think it must be overruled. For I am of opinion, that we are to follow Roe v. Crutchfield; that where there is a demurrer to the whole declaration, if there be one good count, the demurrer must be overruled. That the practice has been so long settled, would be reason enough for this course, unless it could be shewn that it operated unjustly or inconveniently; neither of which can I see. The defendant may demur to any particular count, and thereby put in issue its sufficiency, but when he demurs to the whole declaration, and thereby makes an issue whether there be sufficient matter in the whole to maintain the action, it is against him if there be one good count, and the demurrer should be overruled. With respect to the objection, that there was no plea to the new declaration, our cases have decided that the *'plea put in to the first declaration, if not withdrawn, stands to the second. The defendant may plead de novo, but he is not obliged to do so. The judgment should be affirmed.

CABELL,, J.

As the second declaration must be regarded as a new and substantive one, and as a substitute for the first, it is unnecessary to inquire, whether the judgment of the court overruling the demurrer to the first declaration, was correct or incorrect. The second declaration contained eleven counts; and although it might be admitted that some of them are bad, yet it cannot be doubted, that one of them at least, the insimul computassent, is good. To this declaration there was a general demurrer. In such a case, I think it would be proper, and, perhaps, more conducive to justice, if the court were to discriminate between the good and the bad counts, overruling the demurrer as to the good, and sustaining it as to the bad. If, however, the court fails to do so, and overrules the demurrer generally, without making such discrimination, I do not think it such an impropriety as to justify the reversal of the judgment. The defendant by demurring to each count, might have compelled the court to pronounce its judgment on each. Not having done so, but having demurred to the whole declaration as insufficient, when in fact one count thereof was sufficient to maintain the plaintiff’s action, he cannot complain that his demurrer was overruled. Nor was he left without redress; for he might have objected to all evidence in support of the bad counts. The defendant having failed to plead to the substituted declaration, must, according to the decisions to this court, be considered as relying on his plea to the first declaration, as his plea to the second. I think the judgment must be affirmed.

BROOKE, J., concurred.

'’■‘TUCKER, P.,

dissented. He said, he regarded the original declaration as still a part of the pleadings in the case: that the first count in it was clearly bad, and yet the demurrer to it was overruled: that it was not incumbent on the defendant, to move the court at the trial to instruct the jury to disregard that count as faulty, which the court had just decided to be good; and the verdict might have been found on that bad count.

Judgment affirmed.  