Crain v. Yates , 2 H. & G. 332 ( 1828 )

Earle, J.

at the present term, delivered the opinion of the Court. Our attention was called on the argument to the declaration in this cause as containing the first defect in the pleadings, which should have been noticed in deciding the demurrer disposed of by Charles county court. It was asserted that the two counts therein could not be joined in the same action, one being on a single bill for tobacco, and the other on a like bond for current money. This subject we have considered, and we are of opinion, that the objection to the declaration is unsustained. From the earliest period to this time, tobacco has been considered in our judicial proceedings as current money, and actions of debt on bonds for the payment of it, have been constantly brought in the debet and detinet, and without averring its value in the current coin of the state. This being the ease, there is no doubt that money and tobacco debts may be sued for in the same action. If the question is tried by the common rule, which we do not mention as a fixed and unerring standard, “that two counts may be joined where the same judgment is upon both,” these counts may be well united in this declaration. They are of the same nature, both being for debts, although in a different currency, and the judgment for them is so far the same, that it may be executed by one and the same final process, whether it issue against the person or property of the defendant. It has, besides, for many years, been the practice in actions of debt, to join tobacco and money counts, as a recurrence to the records of our courts will fully evince. The case, of Gordon & others against Wilson, in 1788, and Gordon & others against Pye, in 1789, in the late General Court, are instances of this kind, and many others, it is believed, might be easily adduced. And it has been, moreover, the invariable course, to render judgments in debt for tobacco, and. for costs in current money, or for costs in tobacco at a fixed and established valué in current money.

The two first pleas to this declaration were rightly decided on, we think, by Charles county court. They are pleas of limitation, designed to bar the action as to one of the obligations sued upon, but it is not sufficiently certain to which of 'them the pleas apply. They are introduced with a prayer of oyer of the writing obligatory aforesaid, without discriminating between them; and although in the first there is something like a designation of the tobacco bond, it is in other respects entirely faulty, in not ascértaining the time of the commencement of the action. When a plea is only intended for a part of the de~ claration, the rule is, it must not cover the whole, but must ascertain the part to which it is applied, or the plaintiff may demur. Under a rule to plead issuably, such uncertain pleas would be deemed no pleas, and the plaintiff might take judgment for want of plea. Macdonnald v Macdonnald, 3 Bos. & Pull. 174.

judgment affirmed.