Kennedy v. Stallworth , 18 Ala. 263 ( 1850 )

CHILTON, J.

The declaration in this case contains but one count, namely, that the defendant, as executor of the last will and testament of Mabry Thomas, deceased, on the 1st Jan. 1849, at &c., was indebted as executor, to the plaintiff, in the sum of $111 74, for money paid by the plaintiff for the use of the defendant as executor, &c., and in the like sum for work and labor, &c. done for the defendant as executor, and in the like sum for money found to be due upon an account stated between the plaintiff and the defendant as executor as aforesaid, and concludes that in consideration of said indebtedness, the defendant as such executor afterwards and before the commencement this suit promised to pay the said several sums, &c. A general demurrer was sustained to it, and its sufficiency is the sole question for our revision.

The declaration is clearly bad as uniting distinct demands due in different rights from the defendant. Upon a verdict for the plaintiff, it would not be possible for the court to know how to render judgment, whether de bonis propriis, or de bonis t.estatoris. The demands being incompatible, they cannot be declared on in the same or in different counts. — See Ebersoll v. King, et ux., 5 Binn. 555; 2 Saund. R. 407-8, top page, and note 7; Strohicker v. Grant, 16 Serg. & R. 237; 7 Bacon’s Abr., (Bouvier’s edit.) 472, et seq.

Let the judgment be affirmed.