Bertrand v. Byrd , 4 Ark. 187 ( 1842 )

By the Court,

Dickinson, J.

The first count charges the defendant upon a bill of exchange. The acceptance was conditional; the defendant’s liability depended upon a settlement between himself and the plaintiff; and as that settlement is never averred to have taken place, of course his liability has not accrued. The demurrer was, therefore, properly sustained as to this count. The second count charges the defendant’s indebtedness upon a promissory note, and is every way formal and valid. The third is an indebitatus count, and equally as good. And the fourth is also an indebitatus count, charging, among other things, that the defendant and two other persons, (who are not sued in the action), were indebted for “ goods and merchandize sold and delivered,” “ money paid, laid out, and expended”’ &c. We can discover no objection to this count. The defendant was jointly and severally liable for the purchase and delivery of the goods, with the other two persons not sued; and his liability, in that capacity cannot be deemed a misjoinder of actions with the other counts. By the purchase of the goods, if separately answerable to the plaintiff, we can see no suffl cient reason why this responsibility may not be coupled with other distinct charges against him. The demurrer was, therefore, improperly sustained as to each of these counts.

Judgment reversed.