
    *John Bettle v. Andrew W. Wilson.
    Articles of separation by husband and wife, through the medium of a trustee, for the separate support and maintenance of the wife, and where the separation takes place, are not void, as against public policy.
    Oyer can not regularly be craved of a deed, where profert is not made of the same in the previous pleading.
    A plea which does not answer the entire declaration, is bad on demurrer.
    This case comes into this court by writ of error to the court of common pleas of Clermont county.
    The original case was an action of debt, by Wilson against Bettle, upon a sealed bill, of which the following is a copy :
    “ I hereby promise to pay to Andrew D. Wilson, his executors and administrators, for value received, the sum of $350, for the use and support of my wife, Mary Bettle, and the same is to be paid to no other persons, and for no other use whatever. Witness my hand and seal, this November 19, a. d. 1839.
    “John Bettle, [l. s.]
    Elizabeth Bettle, [l. s.] ”
    The declaration contains a special count upon this bill, and the common counts.
    To this declaration the defendant filed four special pleas.
    The first states, in substance, that the plaintiff in error, then defendant, on March 17, 1818, was lawfully married to one Mary Commings, with whom ho lived until November 12,1839, when she left him without cause, declaring her intention never to return to him again ; that on the 19th day of the same November, John Bettle, his wife Mary Bettle, and Andrew Wilson, as trustee, entered into articles of separation, under their hands and seals, by which John and Mary were to live separate during their lives; and for the. maintenance *of said Mary, thus separate and apart from her husband, John Bettle was to allow her one-half of his personal property and $1,000 in money ; John was not to assert the rights of a husband, with respect to said Mary, nor was she to claim of him any further maintenance than as before stated ; that Wilson, as trustee, bound himself for the performance of the agreement of Mary; that on the day the article of agreement was executed, said John did actually transfer and deliver to Wilson, as the trustee of Mary, one-half his personal property, also sundry evidences of debt, amounting to about $300, and for the balance of the $1,000 gave two notes for $350 each, one payable November 20, 1840, and the other, the bill now in suit; that Mary Bettle, on July 19, 1840, before the said $350 fell due, departed this life.'
    The second plea states the marriage, separation, the articles of agreement, execution of the notes, etc., like the first; it also states that Wilson has realized from the notes assigned to him, $1,200 ; that the said Mary died on July 19,1840; and that the money and property received by Wilson, for the use and support of Mary, as aforesaid, was more than sufficient for her use and support during the time that she lived after November 12, 1839; and that the consideration of the note declared on, has wholly failed.
    The.third plea sets forth that on November 19, 1839, the said John and Mary agreed to live separate and apart; that articles of separation were entered into ; that John delivered property to Wilson which he received for the said Mary, for her sole use and benefit, and for no other use or purpose whatsoever; that Marjr, at the time the articles were entered into, by her power of attorney, did make Joseph Bettle her attorney in fact, by which she pretended to stipulate that, in the event of John Bettle’s selling his real estate, her attorney should convey her interest in the same, with such covenants and clauses as the attorney might think fit and convenient; and that she further entered into an agreement by which *she undertook to stipulate that, in the event of surviving her husband, she would not claim any dower in her husband’s land. It is then averred that the said undertaking of the said Mary was tho consideration for tho note declared on by tho plaintiff, and that, without such agreement on her part, he would never have executed said note; that she afterward became dissatisfied, and said she would not abide by her agreement; that gho became dissatisfied with her power of attorney, and declared her intention not to abide by the same, and that her attorney should not,, on her behalf, sign any deed or deeds for the conveyance of any oi tho real estate of tho said John, all of which she lawfully might do; and tho said John, therefore, avers that the consideration of the. note has failed.
    Tho fourth plea alleges that on September 9, 1839, tho said John was lawfully married to the said Mary; that before that timo she left his bed and board, and that for the purpose of providing for her during her natural life, and while she should live separate and apart from her husband, ho executed and delivered the note, in said declaration mentioned, payable to. said Wilson; that she died on July 19,1840, before said note became due, and that while she was living, after said separation, tho said John furnished tho said Wilson, for the use of tho said Mary, enough for her support and maintenance, so that it was wholly unnecessary to apply any part of the money, in the declaration mentioned, for that purpose, etc.
    Next, although there is no plea of the general issue, tho defendant below gave notice of set-off of sundry matters in the notice mentioned and specified.
    The plaintiff, by his attorney, craved oyer of the sealed instruments referred to and relied upon in the pleas, and they werh read to him, whereupon ho demurred severally to the pleas.
    The articles of separation, made pai’t of the record by oyer, bear date November 19, 1839. It purports to be an indenture between John Bettle and Mary his wife, of the one part, and Andrew W. Wilson, trustee, on the other part. It recites *that the said John and Mary, in consequence of unhappy difficulties which had occurred between them, had agreed to live separate and apart from each other during the remainder of their lives, and that whereas the said John had agreed to allow the said Mary $1,000, and one-half of all tho personal property owned by him at th'e time for her separate maintenance and support; tho said John, therefore, in pursuance of said agreement,'covenants with the said Wilson, trustee as aforesaid, “ his executors and administrators, in the manner following, that is to say, that it shall be lawful for the said Mary, and that the said John shall and will, from henceforth, permit and suffer her at all times hereafter, during the joint lives of them, the said John and Mary, to live separate and apart from him, the said John, and to go and reside, and to be at such place or places, and with such family and families, relations, friends, and others, as she, the said Mary, notwithstanding her coverture, shall, from time to time, think fit, wholly freed and discharged from all power or restraint of him, the said husband, in like manner and in all respects, as if she were sole and unmarried; and further, that ho, the said John, will not sue, molest, or disturb, by any suit, process, threat, or otherwise, the said Mary, his wife, for living apart from him, as aforesaid, nor any person or persons whatsoever, for receiving, harboring, or entertaining her during such separation; and the said John doth further for himself, his heirs, executors, and ad'"ministratofs, covenant that he, the said John, will well and faithfully pay unto the said Mary or to the said Andrew W. Wilson, trustee as aforesaid, his executors and administrators, for the use of the said Mary, the said sum of §1,000, in the manner following,” etc. After specifying the mode of payment, in part, by the assignment of certain notes, provision is made that the balance of the §1,000 shall be paid in two equal payments, the first on November 20, 1840, and the second on November 20, 1841. Provision is next made that if the said John shall be sued on account of the said Mary, and made liable, the amount of such *liability shall be deducted from these payments. It is further stipulated that said personal property, and the said payment of §1,000, shall be delivered and paid to said Wilson, not only for the sole use and benefit of the said Mary, for her separate support and maintenance during her natural life, but also in lieu of and in full discharge of any dower-right of the said Mary, in the estate of the said John, in case she should survive him.
    In consideration of the promises, the said Wilson “doth, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said John, his heirs, executors, and administrators, that he, the said Wilson, his executors and administrators, shall and will, from time to time, and at all times hereafter, save, defend, keep harmless, and indemnify the said John, his executors and administrators, and his and their estates, from all debts, charges, and sums of money, for the maintenance or on any other account of the said Mary, which she now owes, or which she may hereafter owe, while living separato and apart from him, the said John; and also from all damages, charges, costs, or expenses which may result to the said John, or to his executors or administrators, in case the said Mary shall, at any time during the aforesaid separation, refuse or fail to sign any deed of conveyance for the sale of her interest in the estate of her said husband, whenever she shall be thereunto requested by her said husband; provided the said John shall have first presented to the said Mary a deed, made in good faith, to some actual and fair purchaser of the estate of her husband. Witness,” etc.
    The power of attorney referred to purports to have been executed by Mary Bettle, with the assent of her husband, and is signed by both John and Mary Bettle.
    At the November term of the court of common pleas, 1842, -of Clermont county, the case came on for hearing, the demurrer was' sustained, and judgment entered for the then plaintiff.
    To reverse this judgment this writ of error is prosecuted.
    *The errors assigned are:
    1. The demurrer was sustained, when it ought to have been overruled.
    2. The judgment was rendered against the defendant, when it ought to have been rendered in his favor.
    3. Other errors, etc.
    John Jollieee, for the plaintiff:
    Whore there are several pleas and general demurrer, if one be good, judgment must be given for defendant. 1 Chit. Pl. 576, n. 3; 2 Mass. 541; 1 Johns. 385.
    The first plea presents the question of the validity of articles of separation in Ohio, at law. Such articles are against public policy, and should not receive the countenance of this court.
    Beach v. Beach, 2 Hill, 260; Marshall v. Rutton, 8 Term, 545; Bagget v. Fren, 11 East, 302 ; Lewis v. Lee, 3 Barn. & Cress. 291; Hyde v. Price, 3 Ves. 443; Marsh v. Hutchinson, 2 Bos. & Pul. 226; Kay v. Duchesse de Pienne, 3 Camp. 123; 2 Roper’s Husband and Wife, 122, 123, 270, n.; St. John v. St. John, 11 Ves. 539; Innell v. Newman, 4 Barn. & Ald. 419; 2 Kent’s Com. 160, 3 ed.
    See also, on this point, Westmeath v. Westmeath, 1 Dow, 543 (new series); Corbet v. Pœlnitz et ux., 1 Term, 5; Clayton v. Adams, 6 Term, 604; Mortimer v. Mortimer, 2 Hagg. 317 (13 vol Law Library) ; Dibble v. Hutton, 1 Day, 221; Fletcher v. Fletcher, 2 Cox’s C. C. 99; 2 Story’s Eq. 810, 811; Head v. Head, 3 Atk. 547; Whorewood v. Whorewood, 1 Chan. 223; Durand v. Durand, 2 Cox, 207.
    If any part of the consideration of this note was that the parties should live separate it is void; for if the instrument be void in part as against public policy, the whole is void. 13 Wend. 53; 8 Johns. 253; 5 Cow. 547 ; 4 Johns. 84; Cro. Eliz. 193; Bridge v. Cage, Cro. Jas. *103 ; Scott v. Gilmore, 3 Taunt. 226 ; Card v. Hope, 2 B. & C. 661; 9 Eng. Com. L. 209.
    See also, as bearing on the general doctrine, Westmeath v. Salisbury, 5 Bli. 339, 398 ; Ross v. Willoughby, 10 Price, 2 B. & C. 539 (Eng. C. L. 174) ; Clancy on Rights of Married Women. 397; Worrall v. Jacob, 3 Meriv. 267; Poynter on Mar. and Div. 172; Evans v. Evans, 1 Hag. Con. 36; The People v. Mercien, 3 Hill, 407-411; John A. Barry v. Mercien, 8 Paige’s Ch. 58.
    There are stronger reasons in Ohio, why articles of the description mentioned in the record should not be sustained in Ohio, than in England. There, divorces from bed and board are allowed. Here, such divorces are not allowed. But the legislature has been liberal in allowing unqualified divorces, and thus manifested a hostility to quasi divorces. This hostility is founded in reason. Living in such a state is contrary, to nature, and results 'in injury to the state and to society. And, if so, a fortiori, should the law discountenance these voluntary separations. And in England, articles of separation are not sustained, except in cases where a divorce from bed and board would l¿o granted. Onr legislature has prohibited such divorces, and hence, here, these articles ought not to be sustained.
    2 Eng. Com. Law and Chan. R. (Jurist ed.) 90; 2 Kent’s Com. 176, n. c; Jones v. Wait, 5 Bing. New Cas. 341 (35 Eng. Com. L. 138); Chusman v. Nainby, 2 Stra. 739, 744; 2 Bulst. 136; Snow v. Peers, 4 Burr. 2225.
    The second and fourth pleas raise the same question as the first, and the additional one of failure of consideration by the death of the wife.
    The object of these articles of separation, is to secure a maintenance for the \vifo; and if she die, and her wants, till the period of her death, have been supplied, the husband is discharged from the payment of anything further, and such are the authorities. 264] *Clancy on Rights, 386, 387; Powell v. Stanforth, 2 Sir W. Blk. 843, 1016; Palmer v. Frazier, 2 Eng. Com. Law and Chan. R. (Jurist ed.) 226; 2 Wend. 422.
    This claim of the wife upon the husband is analogous to pin money, which can not be assigned, and the right to which ceases with the death of the wife. 2 Story’s Eq. 741, 742; Howard in Digby, 8 Bligh, 224, et seq., 252, et seq., 5 Sim. 330; Stoney v. Cook, 7 Sim. 22; 2 Story’s Eq. 806, n. 1; Cole et al. v. Gower and Piggate, 6 East, 109.
    The law is the same, and the reason the same, where alimony has been decreed to a wife, and where the putative father of a bastard child has been charged with its maintenance. Wilde v. Griffin, 5 Esp. N. P. Cases, 142; Townson v. Wilson and others, 1 Camp. N. P. 396; Hodgson v. Williams, 6 Esp. N. P. 29; Reeve’s Dom. Rel. 279; State v. Mitchell, Wright, 464.
    Mary Bettle was the principal, and therefore the note should have been sued in the name of herself or her legal representative; but, as this can not be done at law, then the action can not be sustained at law. 1 Chit. Pl. 4 ; 2 Caine’s Cases 341; 5 Ohio, 64.
    ' This note can not be collected of the husband after the death of the wife, because on her death he, as next of kin, has a right to the possession of assets, and, by administering on her estate, reducing them to possession. Washburn v. Hale, 10 Pick. 429, 433; Russell v. Brooks, 7 Pick. 66 ; Commonwealth v. Manley and Leash, 12 Pick. 173; Perin v. Thompson, 17 Pick. 391; Whitacre v. Whitacre, 6 Johns. 111; Jones v. Chew et al., 5 Met. 320; Clark v. Clark, 6 Watts & Serg. 85; Lowry v. Huston, 3 Howard’s Miss. 299; Maloney v. Kennedy, 2 Eng. Com. Law & Ch. 194; Shuttlesworth v. Noyes, 8 Mass. 299; Barlow v. Bishop, 1 East, 432; Clayton v. Adams, 6 Term, 604; Co. Lit. 352; 2 Blk. Com. 433.
    Wilson was only an agent or trustee of Mary Bettle, and *on her death this agency ipso facto ceased. % Ohio, 173, pt. 1; 9 Ohio, 151; 4 Pet. 332 ; 12 Wheat. 408; 3 Kent’s Com. 643.
    His situation was not unlike that of a guardian, whose authority ceases on the death or majority of his ward. Wright, 390; 4 Mass. 508; 1 Conn. 65; 1 Fonb. Eq. 55, 56; 4 Co. 127; a 11 Ohio, 442 ; Wright, 119; Thos. Coke, 131.
    
      The third plea presents the question arising out of the power of attorney and agreement to release Mary Bettle’s dower in her husband’s land, and her subsequent declaration of intention to claim dower."
    A feme covert can not bind herself by any covenant, hence her power of attorney was void, and furnished no consideration for the note. 1 Greenl. Ev. 30; 17 Johns. 167 ; 5 Greenl. 63; 1 lb. 394; 3 lb. 50; 7 Mass. 19 ; 10 Ohio, 120, 309; 4 Com. Dig., title Estoppel, 203 ; 2 Wilson, 3; 2 Ohio, 194, pt. 1; 9 Mass. 218 ; 13 Mass. 223.
    The power of attorney was void till recorded. Swan’s Stat. 266 ; 6 Ohio, 514 ; 17 Mass. 370.
    Fox & Lincoln, for defendant, cited no additional authorities, but relied upon the following, quoted by the counsel for the plaintiff, as fully sustaining articles of separation : 3 B. & A. 740; 2 Wend. 422; 3 Paige, 500; 2 Story’s Eq. 653; 2 Kent’s Com. 176, 177; 3 Meriv. 267.
   Hithcock, J.

The great object of the pleadings in a case, is to arrive at a specific issue upon a given and material fact; but it is not necessary nor proper to set forth in the pleadings the evidence by which the existence of such a fact is to be substantiated before a jury. So long as pleadings are so framed as to effect this object, they conduce to a correct administration *of justice. But when the science of pleading is perverted by the statement of facts known not to exist, or by efforts to entrap an adversary, a principle which was intended for the promotion of justice is, not unfrequently, so applied as to pervert it. In the case now before the court, the record is so incumbered by the verbosity of the pleas, as to render it extremely difficult to determine what particular fact or facts the pleader intended to put in issue. From careful examination, however, we are led to suppose the defenses intended to be relied on in the several pleas are as follows:

1. That the single bill which is declared on, was not binding in law, because certain articles of separation between John and Mary Bettle, and Wilson as trustee, and which by the pleader is supposed to have been the consideration of this single bill, were against the policy of the law, and therefore that the bill itself is-void.

This article of separation is made part of the record.

2. That the individual for whose use, support, and maintenance the bill was given, died before the same fell due; that the same was not necessary for her support and maintenance, and therefore that the consideration had failed.

3. That the said Mary, for whose use the bill was given, asserted and declared that she would not be bound by any act of her attorney, when, as is averred, the power under which the attorney was authorized to act, was the consideration of the single bill, and therefore the consideration of said single bill has failed.

4. The fourth plea is not materially variant from the second, except that it is more concise, and does not, in terms, refer to the article of separation, so that the same can be by oyer made part of the plea.

Before proceeding to the consideration of these several pleas, it may not be improper to say that the questions involved in this case, and growing out of the controversy between John Bettle and his wife, have heretofore received no little share of the attention of the members of this court. Soon after the death *of his wife, John Bettle filed his bill, in the court of common pleas, to be relieved from the liabilities assumed by him under the articles of separation, and to have the said articles rescinded. This bill was filed in Clermont county, and was appealed to the Supreme Court. The case was taken under advisement, and finally decided in Hamilton county, at the spring term of the court, 1831. According*to my recollection, the same questions were then raised as are now presented, and the case of the complainant sustained by substantially the same arguments. The court, however, dismissed the bill.

It was again presented to the court on a writ of error to the court of common pleas of Clermont county, to reverse a judgment rendered by that court, upon the first bill or note for $350 named in the articles of agreement. That case was taken under advisement, and decided in 'Hamilton county, in 1842, affirming the judgment of the court of common pleas. Not being at that time a member of the court, I can not state the grounds upon which the decision waB made, but am informed that it was made upon consultation of all the judges of the court. The suit is upon the last of the two notes, and although we can not flatter ourselves that we shall be able to make a decision which will be satisfactory to all concerned, we do hope to make one which will put an end to the litigation.

Under the first plea, it seems to be necessary to ascertain what was in fact the consideration of the note or bill in suit. Now, no doubt can exist upon this point, if we for a moment turn our attention to the articles of separation. Bettle and wife had agreed to separate, and the terms were fixed, when he was to give her one-half of his personal property and $1,000 in addition. But in order to carry out this agreement and secure the object of it, it was necessary to have a trustee. Wilson was such trustee, and he bound himself by covenant to indemnify Bettle against any claim, cost, or charge, on account of his wife during his life, or against any claim for dower, which she might have after his death. It was not, then, the separation alone, which was the consideration of *this note, nor a desire on the part of Bettle to provide for his wife, but it was the covenants of Wilson as contained in the articles of separation. But for these, the notes would not have been executed.

But it is said that these articles of separation, and the covenants' therein contained, are all void,-as being against public policy; and a multitude of authorities are cited to show, not that courts have held such arrangement null and void, but that many men acting as judges and chancellors have repeatedly expressed the opinion that they should originally have been held void. And it is further insisted, that it is alone in courts of equity that it can be sustained; and, as this is a suit at law, no judgment can be rendered in favor of the payee of the bill. We do not readily see that this consequence follows. For, admitting that no suit at law can be sustained upon articles of separation like those in the record, yet, if such articles are good in courts of equity, it would seem that covenants contained in them would be a good and sufficient consideration for a note or bill which was no part of such article, so that the same could bo collected at law.

But are such articles of separation void, either in law or equity? I hav,e not time to remark upon all the authorities cited by council. Clancy, in his treatise of the rights, duties, and liabilities of husband and wife, after a review of the authorities upon the validity of agreements of this character between husband and wife, at page 240, says, “ From these authorities, it may be inferred that it is competent at this day to a husband and wife to enter into an agreement, through the medium of trustees, that they shall thenceforth cease to cohabit; and that, during that separation, he shall pay to her an allowance for her support, the due discharge of which, both courts of law and equity will enforce; and also, that the wife may covenant to pay a portion of her separate property to her husband, on the terms of his suffering her to live absent from him; but that neither she nor her husband will be assisted by the court, in getting possession of that property, with a view to carry this ^agreement into effect, if that agz’eement bears the appearance of irregularity or unfairness. The same principle is recognized in 2 Stoz-y’s Eq. G52-654. We suppose such to be the rule of law where the separation actually takes place. But, whether either a court of law or of equity will enforce such contract, when the agreement is for a future separation, is a different question, and is not necessary,,to be settled in the present case, as in this case the separation did actually take place.

It is admitted by counsel that such is the rule of decision in England, although insisted that it should not be adopted in Ohio. And it is urged, as one reason, that, in' England, such rule is not adopted except in cases where the separation is for reasons which would jzzstify a divorce from bed and board; and it is said that, in this state, there can not be, for any cause, a divorce from bed and board ; therefore, no case can arise here whei’e such articles of separation should be held as valid.

True, by our law, there can not be a divorce from bed aúd board merely; but we divorce from the bands of matrimony for the same causes for which in England there might be a divorce from bed and board. And it would be strange, indeed, where the conduct of either party has been such as to authorize the other to obtain a divoz*ce, they could not agree to live separate, upon a separate maintenance, furnished by the husband. The causes of separation in the case now under considez'ation are not specifically alleged. But it is stated that there were difficulties which rendered it necessary to separate. In the opiuion of the court, there is nothing disclosed upon the recoz’d which would justify us in saying that this was a void contract.

By the second ploa, the defense is based upon the ground of the death of the wife; and it is claimed that her death released the obligor from the payment of this note, inasmuch as the avails of it wez'e not wanted for her support.

This contract is not a contract to pay, from time to time, as the payments may be wanted for the sustenance of the wife. *It is a contract by which the husband agrees to pay $1,000, in consideration of the covenants on the part of Wilson, as set forth in the articles of separation. Had his wife lived fifty years, he was under no obligation to pay more; and if she lived but one year, shall he pay less? Wo think not. The contract was obligatory, and he must abide by it. The cases arising under the English poor-laws, and which have been cited by counsel, are not applicable to a case like this. This is not a contract between public officers who are bound to perform the duties of overseers of the poor and individuals; but it is a contract between individuals, who acquire rights as against each other, which the law will enforce, by compelling each to do what they have agreed to do.

The third plea sets up that the consideration of the note or bill, was in a certain power of attorney, executed by Mary Bettle to one Joseph Bettle, and that she declared she would not be bound by it. In this plea, the articles of separation are referred to, and, by oyer, made part of the plea.

Taking the whole together, then, the plea is contradictory. The articles of ^separation show that the covenants of Wilson were the consideration of the note in suit, and it is stated that the power of attorney was the consideration. Both might have operated upon the mind of the obligor. But, in the plea, it is alleged that the power of attorney was the only consideration. We think otherwise. But, suppose it were so, has the consideration failed? From aught that' appears in the plea, the power of attorney was in full force, and just as available up to the time of the death of Mary Bettle, as it -was at the time of its execution. It was never revoked. The statements of the plea are to the effect that she threatened to revoke it; not that she did do it. Whether that power of attorney was ever of any validity, is a different question, and one which we are not now called upon to decide.

The fourth plea is Substantially the same as the second; and, in deciding upon the validity of one, the other is disposed of.

But it is claimed upon the part of the plaintiff in error, that *the articles of separation are improperly introduced in the record. Inasmuch as no profert was made of them in the pleas, it is said the plaintiff, in the original suit, had no right to crave oyer. The case, so far, has been considered by the court, as if oyer had been regularly craved, and the deed was properly a part of the record. It has been so considered, because it would be utterly impossible to decide upon the merits of the defense, without a careful examination of this instrument. The defendant seems to rely upon it in making his defense. If the instrument was valid, his defense failed; if not, he was not liable. He should have made profert of it. We had hoped, too, that the object of the special pleas in this case was a legitimate one. That it was to elicit the opinion of the court upon the legal effect of the facts existing in the case, not to entrap an adversary. It is true, the plaintiff, by his replication, might have placed this deed upon the record. But this would only have served further to incumber that record. The real points in controversy are ah well before the court in the mode which has been adopted, by craving oyer and demurring, as they would have been by any further extension of the pleadings. But, as the objection is made, that the plaintiff had no right to oyer, because profert was not made of the instrument, we are bound to say that we understand the general rule of law to be as claimed by the counsel for the defendant.

But, excluding the deed from the record, what is the state of the pleadings? The declaration contains two counts; the one special, the other general. The pleas are in effect to the first count. The second is unanswered. To these pleas there is a demurrer. Now we suppose the law to be, that a plea must, in some shape, cover the whole declaration; and, if it does not, that it is bad on demurrer. As the pleas in this case are not manifestly answers to the entire declaration, but only to the first count, leaving the other unanswered, the court of common pleas decided correctly in sustaining the demurrer; and the judgment of that court must bo affirmed.  