Kirk v. Seawell

10 Miss. 571

Opinion

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.