
    Lewis J. Kirk, et al. vs. James Seawell.
    The maker and indorsers of a note were sue.d jointly, the declaration was bad as io the indorsers, but good as to the maker, the defendants demurred; the demurrer was confessed as to the indorsers, dnd suit dismissed as to them, and the court rendered judgment against the maker, on the demurrer : Held, that the judgment on the demurrer against the maker was correct.
    In error from the circuit court of Lowndes county.
    The opinion of the court states the facts of the case.
    
      Argyle Campbell, for plaintiffs in error.
    
      Brigham and Gregory, for-defendants in error.
   Mr. Justice ThacheR

delivered the opinion of the court.

■ An action of assumpsit was instituted in the Lowndes county circuit court, against the makers and indorsers of a promissory note. A demurrer was filed to the declaration, the special causes of which reached only to the allegations against the indorsers. The demurrer was confessed and the plaintiff dismissed his action as to the indorsers. The plaintiff then proceeded to take his judgment by default against the makers.

A demurrer is either to the whole, or to a part of the declaration. This rule also applies to one count of a declaration, part of which is sufficient, and part bad, provided the matters alleged are divisible in their nature. 1 Chitty Plead. 703. The action having been dismissed as to the indorsers, which it was the privilege of the plaintiff to, do, the declaration still set forth sufficient matter of substance ,'to warrant a judgment against the makers. It was then unnecessary to amend the declaration in respect to the allegations against the indorsers. Every allegation, more than sufficient to declare against the makers, might be treated as surplusage.

The judgment will be affirmed.  