
    Dent's Adm'r. vs. Scott.
    Appeal from Baltimore county court. Mssumpsit, brought by the appellee against the appellant on the 14th of March 4801. The declaration contained the following counts: First. “That whereas on the 15th day of April in the year 1794, at Baltimore county aforesaid, in consideration that Scott, at the special instance and request of Dent, in his life-time, would deliver to Deni 100 barrels of superfine flour, and 50 barrels of fine flour, at or before the 15th of July of the same year, he, Dent, in his life-time, then andthere undertook and promised Scott to pay him the sum of §8 for each and every barrel of said flour, at two months next after the delivery thereof; and that he, Scott, confiding in the promise of Dent, so made by him in his life-time, afterwards, to Ait, on the 15th of July 1794, at the county aforesaid, did deliver to Dent, in his life-time, 1.00 barrels of superfine flour, and 50 barrels of fine flour, whereof Bent in his life-time afterwards, to wit, on the same day and year last mentioned, at the county aforesaid, had notice; and by reason of the premises, and according to the said promise and assumption of Dent, so made by him, he, Dent, in his lifetime, became liable to pay, and ought to have paid, to Scott, the sum of g8 for each and every ol the said 100 barrels of superfine flour, and 50 barrels of fine flour, ai two months next after the 15thof July 17"94, to wit, at” &c. Second.' Jlnd whereas afterwards, to wit, on the same day and year first aforesaid, at the county aforesaid, the said Dent, in his life-time, accounted, together with the said Scott, of and concerning divers other sums of money before that time due and owing from the said Dent, in his life-time, to the said Scott, and in arrear and unpaid, and upon that account he the said Dent was, then and, there found in arrear to the said Scott in other large sum of money, to wit, the sum of ¿3225 like money: and being so found in arrear, he the said Dent, in his life-time, in consideration thereof afterwards,' to wit, on the same day and year aforesaid, at the county aforesaid, took upon himself, and then and there promised the said Scott to pay him the said last mentioned su.m of money, when he the said Newt should be thereto aftervvairls, requested.” Third. “And whereas afterwards, to wit, on the same dame day and year first aforesaid, at the county aforesaid, the said Dent, in bis life-time, was indebted to the* said Scott jn other £225 like money, for other ICO barrels of superfine flour, and 50 barrels of fine flour, before that time sold and delivered to the said Dent, in his life-time, and at the special instance and request of the said Dentj and being go indebted, he the said Dent, ip his life-time, after-wards, to wit, on the day and year aforesaid, at the county aforesaid, in consideration thereof assumed upon himself, and then and there promised the said Scott to pay him the said last mentioned sum of money when he the said Dent should be thereto afterwards required/! jfoyrth. “Jlnd whereas afterwards, to wit, on the twentieth day of September, in the year eighteen hundred, at the county aforesaid, the said several sums of money being due as afo^said, and then unpaid to the said Scott., by the said Dent, at the time of his decease, he the said Dent, then being dead, he the said Simpson, to whom, together with a certain Hannah Dent, administration of all and singular the goods and chattels, rights and credits, which were of the said Dent, at the time of his death, were in due form of law committed, and the said Hannah then being deceased, and the said Siinpson then being surviving administrator as aforesaid, and then having in his hands unadministered assets of the estate of the said Dent, deceased, a large sum of money, to wit, the siyn of ¿SlGQQ like money, at the county aforesaid, sufficient to discharge, and liable ter pay, the said several sums of money due as aforesaid to the said Scott, and the said administration then being in frill force and unrepealed, he the said Simpson, as administrator aforesaid, in consideration-thereof afterwards, to wit, on the same day and year last aforesaid, at the county aforesaid, assumed upon himself, and then and there, as administrator aforesaid, promised the said Scott to pay him the said several sums of money when he the said Simpson should be thereto afterwards requested.” The defendant pleaded three pleas— 1, “And the said Simpson, by Philip Moore his attorney, comes and defends the wrong and injury whence, &c. and says that the said Dent, in his life- > time, and the said Simpson, since his decease, did nof, nor did either of them, undertake and promise, in manner and form as the said Scott hath above thereof complained against him the said Simpson; and of this he puts himself-upon the country, and so forth; and the said Scott in like manner, and so forth.” 3. “Arid for further plea in this behalf as to the supposed promise in the said first count of the said declaration mentioned, the said Simpso7i,bj leave of the court here'first had and obtained, according to the form of the statute in such case made and provided, says that the said Scott, his action aforesaid against him to haya or maintain ought not, because he says that the cause of action in the said first, count in the said declaration mentioned, did not accrue to the said Scott, at any time within three years next before the day of suing out the original -writ in this cause; and this he is ready to verify, where-, fore he prays judgment if the said Scott his action against' him the said Simpson to have or maintain ought, and so forth.” 3. “And for further plea in this behalf as to the supposed promises in the second and third counts of the said declaration' mentioned, the said Simpson by like leave,” &c. “says, that the sfiid Scott his action aforesaid against him the' said Simpson to have or maintain ought not, because he the said Simpson says, that the said Deni, ■ in his life-time, did not undertake and promise, i.n manner and form as he the said Scott hath above thereof complained against him the said Simpson, at any time within three years next before the day of suing out the original writ in this cause; and this he the said Simpson is ready to verify:, wherefore he prays judgment if ■ the said Scolt his action aforesaid against him the said Simpson lo have and maintain ought; and so forth.” The plaintiff entered a special ° , demurrer to the 2d and 3d pleas, and assigned for catistié of demurrer — 1. That the defendant in his 2d and 3d pleas bath altogether omitted the words “comes and defends the force and injury when’, and so forth.” 2. That the defendant in his 2d and' 3d pleas, hath pléád the same, and the matters thdreiu contained in bar, without beginning the samó with a defence, and in the same picas hath made ms defence. The defendant joined in demurrer; and the county court at February term 1834; ruled the. demurrer good. A verdict was given for the plaintiff on the issue to the first plea, and damages assessed, &c. judgment thereon tk bonis iniestatoris, si non, &c. From which judgment the defendant appealed to this court.
    
      ‘Where it ap- ’ jpcars by the re* )e<»rd that before .the defendant’s Imparlance, and Afterwards in the first pleit 'by him ^pleaded' he “came and defended the Jwrong’ and injhry, ««.’’such defence need not be repeated in the otber pleas by him pleaded. '
    ' |If the prior counts in a declaration in assumpsit set out a consideration, and the last count re.íers to them, and is founded on the consideration specified in them, it incorporates so much thereof in the last count as’ to reader it valid.
    
      The cause was argued at the last term before Chase* Ch. 3. Buohaxak and Gantt, J.
    
      W. Dorsey, for the Appellant.
    This is a plain case, In which it is unnecessary to cite authorities. It is admitted that the defendant must take defence, this he does immediately on Ms appearance, and tisis récord stales that the defendant “comes and defends the force arid injury when, and so forth, and prays leave to ¡ñiparle,” &c. This is a full defence, and it need not be repeated. In 3 Blk. Com. 296, it is said, that “it is incumbent on the defendant within a yeaonable time to make his defente, arid to putin a plea,” showing that it is not necessary that the defence should be in the plea. Co. Litt. 127, is to the same effect. But ifit ia necessary that there should be defence taken in the-plea, the plea might have been refused for that defect, but being ac-r.epted, it is made good, ami the defect cannot betaken ad* vantage of by special demurrer. Ferrer vs. Miller, 1 Salk. 217. it is admitted that defence must be taken in some part of the record. It has been done in this case on the appearance of the defendant, and also in his first plea. Every thing is admitted to give, jurisdiction to the court. If the declaration contains four counts, then Hie fourth count feas not been answered by the pleas of the act of limitations. Where there is a special demurrer the first fault may be resorted to. Here it appears that the third count, if there arc only three, ia defective, for there are two distinct promises alleged ia the same count; first the intestate’s promises and then tlié hdministrator’s. This is a form of pleadihg which is not allowed, as no one plea which the defendant could plead would answer the case. If it is Considered that there is a.fourth count, then no judgment can be given on it, because it is defective. Each count must be a full declaration of itself, and triust not depend upon any other count. The fourth count speaks of several sums of money, referring to all the antecedent counts, so that take the count alohe and there is no certainty in it; for each count must contain a distinct cause of actions, 5 Bac. Ab. tit. Pleas and Pleadings, (B) 328, and the cases there cited. The fourth count is defective, and there is no consideration expressed in it to support a promise. This count was intended to take the case out of the act of limitations, but being defective, and there being a general verdict, the judgment must be reversed. The proper form of a declaration, on a promise made by an executor or administrator, maybe seen in Secar vs. Atkinson's Adm'x, 1 H. Blk. Rep. 102, 108, and 1 Harr. Ent. 179, 161, 162.
    
      Kell, was to have argued for the Appellee.
    
      Curia adv. vulL
    
   Chase, Ch. J.

now delivered the opinion of the court.' The court are of opinion, that the second and third pleas of the act of limitations were well pleaded, and that the court below erred in giving judgment for the plaintiff on the demurrer to those pleas.

The court are also of opinion, that the judgment on the, verdict be affirmed with costs, the court being of opinion that the last count in the declaration is substantially good, having reference to the precedent counts, and which is founded on the considerations specified in the first, second and third counts in it, and having incorporated so much thereof in the same as is necessary to render that count valid in law.

Buchanan, J.

I am of opinion, that the causes assigned for demurrer to the second and third pleas of the defendant below, are not available in law, and that the court erred in giving judgment for the plaintiff below on the demurrer.

Full defence was made before imparlance, and is again set out in the first plea; and after defence is once well made, it is not necessary to repeat it in every plea. Moreover, Í think the fourth count in the declaration is bad. The canse of action is not sufficiently set out, and can only fee ascertained by reference to the preceding counts, which reference allows that it is for the same sums of money mentioned in the other counts, and in fact blends the three preceding counts into onej whereas eyery count in a declaration should be distinct, and should set out a separate cause of action. I am therefore of opinion that the judgment ought to be reversed.

judgment affirmed.  