Tillotson v. Stipp

HELD, that in cases of demurrer, notwithstanding the defect of the pleading demurred to, the Court always render judgment against the party, whose pleading was first defective (1). Held, also, that in an action of debt on a bond and promissory note, a declaration containing a distinct count on each, is good. Miter, where the bond and note are included in the same count (2). Although a demurrer is allowed, advantages may yet be taken of any substantial defect in the preceding pleadings of the party demurring. 1 Will. Saund. 285, note 5. — 1 Chitt. Plead. 647. — Cooke v. Graham's Adm’r, 3 Cranch, 229. — Comly v. Lockwood, 15 Johns. Rep. 188. Any number of causes of action, to which the indebitatus count is applicable, may be included in one count; and the plaintiff will succeed pro tanto, though he only prove one of the contracts. 2 Chitt. Plead. 82, note u. — 1 Chitt. Plead. 337. — 2 Will. Saund. 122, note 2. — Bailey v. Freeman, 4 Johns. Rep. 280.