delivered the opinion of the Court:(1)
This was an action on the case, in assumpsit. The declaration contains two counts: one on a promissory note, payable, as described in the declaration, on demand;—the second is the usual count, for money had and received, and for goods, wares, and merchandise sold and delivered. The defendant filed a special demurrer, and simply assigned for causes of demurrer, 1st. The first count is insufficient and informal; 2d. There is an Improper joinder of actions; 3d. The second count is defective. The rule in relation to special causes of demurrer, is too well settled to allow this general and indefinite mode of specifying the causes. Where the objection goes to form and not substance, the particular exception intended to be relied on, should be minutely set forth. Here it is barely alleged that the first count is “insufficient and informal,” but in what that informality and insufficiency consists, is not shown. The second ground is to the joinder of the counts, and is therefore not a special, but a general and substantive cause of demurrer. Is it, however, well taken ? I think not. Both the counts are in assumpsit, and are held to be join-able by the universal authority of all courts. The defendant’s counsel, probably, in making this exception, adverted to the copy of the note appended to the declaration, which is in reality a covenant under seal, and the original of which, it is true, on the trial, could not have been given in evidence under either of the counts in the declaration; but which could not be used as causes of demurrer, to show a variance between the count and "the note declared on. The copy exhibited with the declaration being considered, by repeated adjudications, no part of the declaration, to have shown the variance, oyer should have been craved, and the note set out in hsec verba in the demurrer; and then the variance would have been manifest. The third cause of demurrer is not sustainable; for although in point of form, the count may be defective, still it is substantially good. The defect in point of form is not shown, and is therefore not available.
The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings, to the Circuit Court of Peoria.
Judgment reversed.
Wilson, Chief Justice, did not sit in this cause.