
    *Jarrett’s Adm’rs v. Jarrett.
    January, 1836,
    Richmond.
    Pleading and Practice —Covenant —Declaration— Counts — Demurrer—Case at Bar. — In covenant, on a covenant wherebj' defendant acknowledges that he has received from plaintiff two bonds for collection, which when collected are to be credited on a bond of a third person held by defendant, one count in the declaration assigns the breach, that though defendant collected the two-debts, he did not give credit for the amount— another count assigns the breach, that defendant did not and would not collect the debts, or make any endeavour to collect them, and failed in any manner to account for the same — and a third count alleges, that by the covenant defendant promised to endeavour to collect the debts, and assigns for breach that he did not endeavour to collect them ; defendant takes oyer of the covenant, and demurs generally to the declaration ; Heud, each and all of the counts are good.
    Same — Declaration—Counts—Some Sufficient, Some Not — General Demurrer — Quere.—Whether upon a general demurrer to the whole declaration containing several counts, some sufficient and others not, the court should overrule the demurrer, or should give judgment for plaintiff only for so much as is good ?
    Same — Deeds—Profert—Oyer—Variance.—If in an action on a deed, plaintiff makes profert of the deed in his declaration, and defendant takes oyer of it, the deed is thereby made part of the declaration : and defendant cannot object to the deed as evidence at the trial, on the ground of variance.
    Eli Jarrett executed a sealed instrument to James Jarrett junior, in the following words — “Received of James Jarrett junior the following obligations for collection, to wit, one note of John Huff for 438 dollars, and one note of Benjamin Reeder for 150' dollars; the above notes, when collected, are to be credited on a 1000 dollar bond due May 1, 1816 (which I hold) of James Jarrett senior. Witness my hand and seal &c.”— Signed and sealed by E. Jarrett.
    Upon this instrument, J. Jarrett junior brought an action of covenant against the administrators of E. Jarrett, in the circuit court of Kanawha. His declaration contained three counts. The first alleged, that. E. Jarrett, in his lifetime, by his certain covenant in writing &c. *now here to the court shewn, acknowledged. that he had received of the plaintiff, two-obligations for collection, the one a note of J. Huff for 438 dollars, the other a note of B. Reeder for 150 ' dollars, which notes, when collected, he covenanted and promised to credit on a bond of J. Jarrett senior for 1000 dollars held by the said E. Jarrett; and then assigned the breach,— that though the said E. Jarrett collected the amount of both the said notes of Huff' and Reeder, yet he in his lifetime, and the defendants since his death, did not and would not credit the amount thereof on J. Jarrett senior’s said bond for 1000 dollars &c. The second count set out the covenant and the effect of the engagement thereby incurred, as in the first count, but varied from it in assigning the breach; the breach alleged' in this count being that E. Jarrett in his. lifetime, and the defendants since his. death, did not and would not collect the said notes, and did not and would not en-deavour to collect them, but on the contrary-, omitted to make timely application for the amount thereof, and to make any effort whatever for the recovery and collection thereof, and failed in any manner to account for the same. The third count, after setting- out the covenant as in the two former, varied from them in stating the effect of it; this count alleging, that E. Jarrett, by his covenant, promised to en-deavour to collect the amount of the two notes of Huff and Reeder, and to apply the same, when collected, to the credit of the bond of J. Jarrett senior for 1000 dollars &c. and then it assigned the breach in the words of the assignment of breach in the second count.
    The defendants took oyer of the covenant, and then demurred generally to the declaration, and pleaded covenants performed, and non est factum.
    The court overruled the demurrer. And upon the trial of the issues on the pleas, the defendants filed exceptions to an opinion of the court; from which it appeared, that the plaintiff offered the covenant in evidence “(which was set out in hasc verba), and that the defendants objected to the reading of it, because it did not agree with the covenant as laid in the declaration in any of its counts; but the court overruled the objection, and admitted the instrument as proper evidence under all of the counts; to which opinion the defendants excepted.
    Verdict for the plaintiff for 438 dollars on the first count, and for 150 on the second and third counts, with interest &c. Judgment against the defendants, accordingly, de,bonis testatoris: from which the defendants appealed to this court.
    Johnson, for the appellants,
    objected, 1. that the breach was not well assigned in the first count of the declaration; because it was not positively averred, that E. Jarrett collected the money due on the notes, but only (by way of recital) that “though he had collected it,” yet he did not credit it on the bond of J. Jarrett senior for 1000 dollars &c. 2. Neither was the breach well assigned in the second count; because the effect of the covenant was only that the covenantor should use due diligence in collecting the debts; and if the utmost diligence would have been unavailing to collect them, — if, for example, the debtors were, from the first, utterly and hopelessly insolvent, — the duty of due diligence did not require him to incur the costs of a useless suit, or the trouble of a vain and idle effort to make the collection ; yet the breach alleged, was, that he did not endeavour to collect the debts, or make timely application for them, or make any effort for the collection of them, without alleging that such endeavour, application or effort, would have been availing. 3. That the same objection applied to the third count; since it varied from the second only in interpreting the covenant to mean, that the cove-nantor would endeavour to collect the money ; that is, that he would make the endeavour, whether it ^was likely to avail or no; whereas (he repeated) the covenant bound him only to the duty of due diligence to collect the debts, and that duty did not necessarily bind him to make any endeavour to collect. The third count at least ought to have been held bad, for it put a construction on the covenant different from its legal effect. 4. The objection to the admissibility of the covenant in evidence, presented the same objections raised on the demurrer, in another form. The court admitted it as proper evidence on all of the counts, and the verdict was rendered partly on the first, and partly on the other two; but, even supposing that the instrument corresponded with the description of it in the two first counts, it was variant from that contained in the last.
    R. C. Nicholas,
    contra, premised, that the demurrer being to the whole declaration, if any count in it was good, the demurrer was properly overruled; 1 Chitt. Plead. 643; 1 Rob. Prac. 281; Roe v. Crutchfield, 1 Hen. & Munf. 361. And, he said, the first count was clearly good: the allegation, that though the defendant collected the money, yet he did not apply it according to the covenant, meant that he did collect and did not apply it. But the other counts were good too. The second assigned the breach of the covenant understood according to its true legal effect; and the third set out the covenant according to its true meaning and effect. Eor, admitting that the covenant bound the party, not to collect the debts whether they- could be collected or not, but only to use due diligence to collect them, the duty of due diligence was nothing more or less than the duty of making proper endeavour or effort to collect them; and if no diligence, no effort or endeavour, would have been availing, — if the collection of the debts was impracticable,--it was for the defendant to shew that matter in his defence. As to the admission of the covenant in evidence, he denied that there was any variance between the actual covenant and that described *in the declaration; but, even if there was a material variance, the plaintiff having made profert of the covenant, and the defendant having taken oyer of it, and so made it part of the declaration, he could not object to it as evidence at the trial, on the ground of variance between it and the covenant stated in the declaration; Armstrong v. Arm-strongs, 1 Heigh 491; Snell v. Snell, 4 Barn. & Cress. 741, 10 Eng. C. H. Rep. 453.
    Johnson, in reply,
    questioned the accuracy of the doctrine in 1 Chitt. Plead. 643, that “if there be several counts, or in covenant several breaches, some of which are sufficient and 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.” There was some contrariety in the decisions on the point; but the true rule was, that, in such case, the plaintiff should have judgment for so many of the counts as are good, or for those breaches which are well assigned; 1 Wms. Saund. 286, n. 9; 2 Id. 380, n. 14; Cooke v. Thornton, 6 Rand. 8, 12, 15.
    
      
      Pleading and Practice, — The principal case is cited! in foot-note to Sterrett v. Teaford, 4 Gratt. 84.
    
   CABELE, J.,

delivered the opinion of the court — That all the counts in the declaration 'were good, and consequently the demurrer 'was rightly overruled: and that the exception made by the appellant to the covenant as evidence, was also properly overruled. It was the very covenant of which profert was made by the plaintiff, and oyer craved by the defendant, and which, therefore, bceame a part of the declaration. There was no principle, then, on which it could be objected to as evidence in support of the declaration. The judgment must be affirmed.  