Opinion of the Court by
The second averment in the declaration, is an attempt to show the use of due diligence by suits to enforce payment of the maker, and prosecuting him to insolvency. This averment can not be considered sufficient, for the reason that the plaintiff has not availed himself of the earliest means which the law afforded him, but suffered himself to sleep until one or two terms of the court had elapsed after the notes became due, *85before prosecuting his suits against the maker. The law is, that where the assignee seeks to recover of the assignor, on the ground that he has used due diligence to obtain the money of the maker, but has failed, he must show that he commenced his action against the maker, at the first term of the court, which happened after the note became due, provided there be proper time for the service and return of the writ. (1)
As to the first averment, the court has nothing further to say, than what was said in the ease of Thompson v. Armstrong, ante., page 48.
They have neither seen or heard any thing that has induced them to disturb that opinion. The two cases are entirely apposite. The first averment then, must be deemed to contain a good cause of action, and the demurrer being a general one, ought to have been overruled. There is no principle in pleading better settled than when a declaration contains several counts, one of which is good and the others bad, that a general demurrer to the whole declaration can not be sustained. So too, where a count contains two distinct averments, one of which gives a cause of action and the other does not, the bad averment must be regarded as immaterial, and does not vitiate the whole count or declaration, and a general demurrer thereto ought not to be sustained. (2)
We have shown that the second averment in the declaration does not constitute a sufficient ground of action, and therefore is not, according to the technical doctrine of the law, double. It must be esteemed as surplusage, and wholly immaterial, and the defendant below should have disregarded it and taken issue upon the first averment, which is the substantive cause of action, as determined in the case before cited, (a) the rule being that utile per inutile non vitiatw. The judgment below must be reversed and the cause remanded, *86with liberty to the defendant to withdraw his demurrer and take issue upon the first averment in the declaration. (b)
Smith and Starr, for appellant.
Lockwood, for appellee.
Judgment reversed.