delivered the opinion of the Court:
The error assigned questions the sufficiency of the declaration in this cause, and the decision of the Circuit Court in overruling the demurrer to the declaration.
Upon a critical examination of the first two counts of the declaration, we can perceive no defects. The averments are full and broad, as to the use of due diligence to recover the money of the makers of the note sued on, and the allegations, in that respect, are also sufficient, because they show that diligence by suit, judgment, and an execution returned nulla bona, as to a portion of the amount of the note, which could not be collected.
The third count of the declaration avers, the entire insolvency of the maker, and that the institution of a suit at law to recover the amount, at the time the note became due, would have been unavailing.
This was sufficient. The demurrer being general to all the counts, the decision of the Circuit Court would have been correct on this count alone, had the first two been defective. But we perceive no reason for disturbing the judgment on the demurrer, in reference to all the counts. The judgment of the Court below is affirmed with costs.
Judgment affirmed.
Note. See Harmon et al. v. Thornton, Ante 351 ; Saunders v. O’Briant, Post ; Campbell v. Humphries, Post ; Appendix, A.