#### DeWitt C. Barber, Appellant, v. George Whitney et al., Appellees.

APPEAL FROM PERRY.

A general demurrer to a declaration which contains special and common counts must be overruled.

A jury may properly assess damages on such a declaration.

This was an action of assumpsit, commenced in the Circuit Court of Perry county by the appellees, who were plaintiffs in the court below, against the appellant, who was defendant in the court below, on a promissory note for two hundred and seventy-five dollars and fifty-three cents, made by appellant in favor of appellee.

The declaration contains five counts, two special counts, and three common counts. All the counts in the declaration are substantial and formal, excepting that the venue is not laid sufficiently certain in any one of the special counts, nor in the third common count; nor is the description of the instrument in the second count sufficiently certain and formal to warrant a recovery upon it.

The venue in the first, second and third counts, in that portion of the counts referred to, reads as follows: “And being so liable, the said defendant, in consideration thereof, afterwards, to wit, on the same day and year aforesaid, and at the place aforesaid, undertook, and then and there faithfully promised,” etc. And the description of the undertaking in the second count states that the defendant made his “ promise in writing,” etc.

And the appellees also claim a right to recover the amount of the note and interest, with current exchange on New York, in both their special counts.

The appellant filed his general demurrer in the court below to plaintiff’s declaration, and assigned for special causes, 1st, the -want of a sufficient venue, and 2nd, the claiming of current exchange on New York; but the court overruled the demurrer, and rendered judgment on the demurrer against the *440appellant. The court, also, on motion of appellees, empannelled a jury to assess damages, who found for the appellees two hundred and eighty-six dollars and six cents, being the amount of the note, interest, and exchange.

The defendant in the court below appealed to this court, and seeks to reverse the judgment for the following errors:

1. In not sustaining the general demurrer to the second count of plaintiff’s declaration.

2. Because the court. overruled the demurrer to the first, second and third counts.

3. Because the court rendered judgment against the defendant in the court below on the demurrer.

4. Because the court empannelled a jury to assess damages after rendering judgment on demurrer, and rendered judgment against the appellant for note, interest and exchange.

R. S. Nelson, for Appellant.

G. W. Wall, for Appellees.

Caton, C. J.

This declaration contained special and the . common counts in the usual form. To this declaration the defendant filed a general demurrer, which the court overruled, and very properly. Even if the special counts were faulty, the common counts were undoubtedly good, and as the demurrer was to the whole declaration, there was nothing which the court could properly do but overrule it.

Nor was there any error in having the damages assessed by a jury. Indeed, it might have been a fatal error had the court done otherwise, for it could not be known but that there would be evidence admissible alone under the common counts, upon which the court could not properly order the clerk to assess the damages. We find no semblance of error in this record, and must affirm the judgment.

Judgment afirmed.