
    * Benjamin Tucker versus Joshua Randall.
    In a declaration upon a promissory note payable by instalments, the plaintiff declares that two of the instalments have elapsed, and alleges that the whole sum of the note is due. This allegation shall he rejected as surplusage, and judgment be given for the amount of the two instalments that are due.
    The writ in this case was dated November 15, 1803, and the. declaration was “in a plea of the case for that the said R., at said Boston, on the 10th day of September last past, by his note under his hand of that date, for value received, promised the plaintiff to pay him or order ninety-five dollars — ten dollars per month for the next nine months, and five dollars for the tenth month, from the above date. Now, the said T. avers that more than two months have elapsed since the date of said note, and said R., though since requested, hath not paid either of said monthly payments, and that, he then and there became liable to pay the said sum of ninety-five dollars, and in consideration thereof then and there promised the plaintiff to pay him the same sum on demand. Yet though requested,” &c.
    To this declaration the defendant demurred,- and assigned for causes of demurrer,
    1st. That in and by the said declaration it appears that said sum of ninety-five dollars, or any part thereof, was not due or payable at the time of the suing out of said writ, on the 15th day of November, A. D. 1803, nor could the same be sued for by the said T until after the 10th day of July, 1804.
    2d. That no cause of action whatever is, in the said declaration, stated and alleged against said R.
    
    The plaintiff joined in demurrer, and the cause was submitted to the Court without argument.
   Parker, J.

As to the two instalments which had fallen due at the commencement of the action, the plaintiff is undoubtedly entitled to recover, if the promise is well laid. I think what follows the recital of the promise in the declaration may be rejected as surplusage, and that we can give judgment for the plaintiff according to the right of the case.

Sewall, J., concurred.

Sedgwick, J.

Here is shown substantially, and even technically, a good cause of action, it is true,' the plaintiff goes on to allege other facts, and to draw from them a legal [ * 284 ] * inference. But the allegation and inference • are alike impertinent. The general demurrer (and this is no/hing more) agrees all facts which are well and sufficiently pleaded. The promise and breach being well alleged, the rest is surplusage. Judgment may be given for the two instalments which were due at the date of the writ.

Everett for the plaintiff.

Thurston for the defendant.

Parsons, C. J.

Without question the plaintiff had a right of action, on the first instalment falling due. I have known an action sustained for the interest only, where the time for payment of the principal had not arrived. If this is a general demurrer, I agree with my brethren that the plaintiff may have judgment for the two sums due. The two causes of demurrer assigned not existing in the record, it must, as to this exception, be taken for a general demurrer only, and the subsequent allegations be considered as surplusage.

Thatcher, J., not present.

Judgment for plaintiff. 
      
      
        Greenleaf vs. Kellogg, in Essex.
      
     
      
      
         Eastabrook vs. Moulton, 9 Mass. Rep. 25.
     