
    Turley v. Barcroft.
    In an action of covenant, where the declaration contains two counts varying the description of the writing obligatory, and oyer being craved of the wi iting obligatory, in the declaration mentioned, one instrument only is set out, which varies from each count — held, that, on general demurrer, the plaintiff shall recover on the second count, inasmuch as that count sets forth a good cause of action, and defendant has not shown it was the same note.
   Tompkins, J.,

delivered the opinion of the Court.

This is an action of covenant, commenced in the Circuit Court of Howard county, in June, 1820, by the plaintiff in error, against the defendant. There are two counts ; in the first, the plaintiff states that the defendant, on 1st July, 1819, made to him his certain writing obligatory, by which he binds himself, his heirs, executors and administrators, &e., that he will pay, and become responsible and forthcoming, for the one half of a certain note of hand, drawn by said Samuel Turley and Stephen Tate, in favor of Kincheloe and Company, for the payment of $408, payable sometime in the month of April then next, after the afbiesaid writing obligatory was so as aforesaid made, by him the said Elias, to him the said Samuel Turley, and also the said Elias did, by the said writing obligatory, further covenant to and with him the said Samuel Turley, that he the said Elias Bar-croft, would acquit him the said Samuel Turley, of all costs or charges of whatsoever nature, that might accrue on said note ol' hand, lo him the said Samuel Turley. The performance of these covenants is then negatived, and it is averred, that the plaintiff was, in 1820, sued in the Cooper Circuit Court, and put to great, costs and charges. In the second count, it is stated, that on the 1st July, 1819, Barcroft made his certain other writing obligatory, to him the said Samuel Turley, by which said last mentioned writing obligatory, he, the said Elias Barcroft, did then and there hind himself, his heirs, executors and administrators, Ac., that he, the said Elias, would pay, and become responsible and forthcoming unto him, the said Samuel Turley, for the sum of two hundred and four dollars, and then the breach is assigned in the words of the covenant. The defendant craves oyer of the writing obligatory, in the declaration mentioned, and an instrument is set out in these words : I do hereby hind myself) my heirs, executors and administrators, Ac., to pay, and become responsible and forthcoming for a certain note of hand, drawn by Samuel Turley and Stephen Tate, in favor of Kincheloe and Company, for one half the amount thereof, if being for $408, and payable some time in April next; and I do hereby acquit the said Turley from any costs or charges, of .whatever nature, which may or might accrue on said note, which is signed and sealed by Elias Barcroft. The defendant then demurs to the whole declaration, and judgment was given for him. Oyer of only one note is given; this nearly answers the description of that set out in the first count. The name of the obligee is mentioned in the note set out, and the acquitting of Turley of any costs or charges that may or might accrue on the said note, mentioned in the latter part thereof, appears to he void of meaning, because Barcroft, having no claim to these costs or charges, could not acquit Turley thereof. And the averment in the first count, that the writing obligatory was made to Turley, does not help the note ; for parol evidence is here inadmissible, to prove that Turley is the obligee: See Philip’s Evidence, p. 416.

The first count, then, is had, there being a variance. The second count states a promise by Barcroft lo pay, &c., to Turley, $204. The defendant having taken no measures to show that the same note was declared on, also, in this count, we will suppose he either had oyer of a note agreeing with this count, or that, being satisfied that there was such a note, did not require its production.

The judgment of the Circuit Court is reversed, and judgment will be given for ths plaintiff, on the second count.  