delivered tbe opinion of the Court.
There were three counts in the declaration. The defendant Wilson took issue on the first, and demurred specially to the second and third. The demurrer to the second count was sustained, and to the third overruled. The plaintiff then entered a Ho Hi pros equi as to the first count, and final’ judgment was rendered for him on the third.
It is here assigned as Error, that the Circuit Court overruled the demurrer to this count,—one of the causes of demurrer as set down, is that in this count no day is shewn on which the assumpsit, charged as the cause of.action, was made.
We are of opinion that so soon as the plaintiff had entered the nol. pros, on the first count, it could no longer be considered as part of the proceedings, and the other parts of the Record could derive no aid from it. We are well satisfied that as the Record is now presented, no day is shewn on which the assumpsit in the third count charged, was made, and that the special demurrer ought to have been sustained. The plaintiff, before he abandoned any part of the Record, should have taken care that the remainder should contain enough to sustain his judgment. On this ground, let the Judgment bo reversed, and the cause be remanded.
The Chief Justice not sitting.