#### John T. Lusk, Appellant, v. Daniel P. Cook, Appellee.

APPEAL FROM MADISON.

In a suit by the assignee, against the assignor, seeking to recover on the ground that he has used due diligence to recover of the maker, the rule is, that he must show that he brought his action against the maker, at the first term of the court after the note fell due.

A general demurrer to a narr. containing several counts, some of which are bad, and one good, ought not to be sustained.

So too, when a count contains two distinct averments, one good and the other bad, the bad averment should be disregarded, as it does not vitiate the whole count—the rule is, “ utile, per inutile non vitiatur.”

This was an action commenced by the appellant, the plaintiff below in the Madison circuit court, against Cook, upon his liability as assignor of two promissory notes. The declaration contained but one count, and avers, 1. That the maker of the note was, at the time it became due and payable, insolvent and unable to pay it, and so continued to the commencement of the suit: 2. A showing of due diligence by suits to enforce payment, and the prosecution of the maker to insolvency. There was a general demurrer to the declaration, which the court sustained, and gave judgment thereon for the defendant. The only error assigned is that which questions the.correctness of the judgment of the court below, sustaining a general demurrer to the declaration.

Opinion of the Court by

Chief Justice Reynolds.

The second averment in the declaration, is an attempt to show the use of due diligence by suits to enforce payment of the maker, and prosecuting him to insolvency. This averment can not be considered sufficient, for the reason that the plaintiff has not availed himself of the earliest means which the law afforded him, but suffered himself to sleep until one or two terms of the court had elapsed after the notes became due, *85before prosecuting his suits against the maker. The law is, that where the assignee seeks to recover of the assignor, on the ground that he has used due diligence to obtain the money of the maker, but has failed, he must show that he commenced his action against the maker, at the first term of the court, which happened after the note became due, provided there be proper time for the service and return of the writ. (1)

As to the first averment, the court has nothing further to say, than what was said in the ease of Thompson v. Armstrong, ante., page 48.

They have neither seen or heard any thing that has induced them to disturb that opinion. The two cases are entirely apposite. The first averment then, must be deemed to contain a good cause of action, and the demurrer being a general one, ought to have been overruled. There is no principle in pleading better settled than when a declaration contains several counts, one of which is good and the others bad, that a general demurrer to the whole declaration can not be sustained. So too, where a count contains two distinct averments, one of which gives a cause of action and the other does not, the bad averment must be regarded as immaterial, and does not vitiate the whole count or declaration, and a general demurrer thereto ought not to be sustained. (2)

We have shown that the second averment in the declaration does not constitute a sufficient ground of action, and therefore is not, according to the technical doctrine of the law, double. It must be esteemed as surplusage, and wholly immaterial, and the defendant below should have disregarded it and taken issue upon the first averment, which is the substantive cause of action, as determined in the case before cited, (a) the rule being that utile per inutile non vitiatw. The judgment below must be reversed and the cause remanded, *86with liberty to the defendant to withdraw his demurrer and take issue upon the first averment in the declaration. (b)

Smith and Starr, for appellant.

Lockwood, for appellee.

Judgment reversed.

(1)

See note to the case of Mason v. Wash, ante, p. 39.

(2)

Affirmed in Stacy v. Baker, 1 Scam., 421. Cowles v. Litchfield, 2 Scam., 356. Fitch v. Haight, 4 Scam., 52. Prather v. Vineyard, 4 Gilm., 40. Young v. Campbell et al., 5 Gilm., 82. Israel v. Reynolds, 11 Ill., 218. Governor of Illinois v. Ridgway, 12 Ill., 15. Stout v. Whitney, id. 231. Walter v. Stephenson, 14 Ill., 77. Anderson v. Richards, 22 Ill., 217. Tomlin v. T. and P. R. R. Co., 23 Ill., 429.

(a)

Where there is a demurrer to the whole declaration, but one count is good, the plaintiff must have judgment. Whitney v. Crosby, 3 Caine’s Rep., 89, id. 263.

(b)

Vide Thompson v. Armstrong, p. 48. Mason v. Wash, p. 39. Tarlton v. Miller, p. 68.