This was an action, brought by the indorsee, against an indorser of a promissory nóte, eudorsed wheu over due. The declaration contains two counts; the first on the indorsement, and the second, a common money coont. The first count contains no averment of a demand of payment, from 'the maker, and notice. To this declaration,- a *250general demurrer was filed, and on it, a final judgment rendered for,the plaintiff.
The first count is bad; and' had the demurrer been confined to it, there is no doubt it would have been sustained. But, as the second was a good count, the demurrer was, property enough, overruled. The court, however, erred in rendering filial judgment, for the plaintiff, without the intervention of a jury. The plaintiff’s right to a judgment, can only be sustained by referring to the second, or common count; and this, when taken and viewed separate, and distinct, from the first, does not show such a cause of action as would authorise a final judgment to be entered up, without the intervention of a jury. It does not appear tobe founded on an instrument of writing, ascertaining. the sum duo. If the first count had contained the averments essential to make it a good one, the judgment would be sustained, by referring to it; but as that count is bad, neither the second count, nor the judgment, can derive any support from that source.
The judgment should have been interlocutory, and an inquest, of damages executed. It must, therefore, be reversed and the cause remanded.