Cummings v. Daughety

Cooper, C. J., delivered the opinion of the court. The demurrer was to the whole, but some of the causes assigned related to only a part of the declaration. The court overruled it, except as to the grounds going only to a part of the declaration, as to which it was sustained. A demurrer is an entire thing, and must be overruled or sustained, and if it is not a full defense to the whole declaration or count to which it is applied, it should be overruled. Chitty on Pleadings, 66é. As a demurrer to the whole declaration it is bad, for on the facts stated the plaintiff was entitled to some recovery. The judgment is reversed and cause remanded.