| Ill. | Dec 15, 1849
That the first four counts of this declaration are bad, we entertain no doubt. The writing on which they are founded, is not one upon which alone an action can be maintained under our statute; and we must, therefore, be governed by the common law rules. It seems to be in the nature of an indemnity against the debt, which the plaintiff owed for the boiler, and, in order to maintain an action upon it, it was necessary to show that the writing was given upon a sufficient consideration; and that the plaintiff had been damnified by having had the debt to pay, which the defendants had promised to discharge. The fifth is the common count, and its sufficiency is not questioned. As there were hut five counts in the declaration, the demurrer was, in fact, to the whole of it, and was improperly sustained to the fifth count; and in this there was error. The defendant filed a general issue to all of the declaration, except the five first counts, and there being hut five counts, of course the plea answered nothing, and could present no issue. As there was no issue to the country'formed, the trial which took place was a nullity, and it is not necessary to examine its history. It may be true, that the demurrer was only designed to be applied to the special counts, and that the general issue was supposed to he filed to the common count. But however probable this may be, we are not at liberty to assume that it was so, in defiance of the record, which declares to the contrary.
The judgment of the Circuit Court is reversed, with costs, and the cause remanded, with leave to both parties to amend theirp leadings.
Judgment reversed.