DERRICK VS MORRIS, 5 Port. 111

COLLIES, J. The defendant in error, declared against the plaintiff in three several counts in covenant. The two first of which, treat the covenants set out, as containing dependent stipulations. The third, considers them as independent, and charges a breach in the non-payment of two hundred dollars — a sum agreed to be paid to the plaintiff below, for his wages-as an overseer, for the year eighteen hundred and thir? y -one, and in the failure to supply certain provisions, &c. acóordkíg to the terms of the covenant and agreement.

The Judge of the County Court of Madison, (from whence this case comes,) sealed a hill of exceptions on this trial, in these words : “Be it remembered, that on the trial of this cause, the evidence proved that plaintiff remained in the employment of the defendant, about one month of the year eighteen hundred and thirty-one.- There was contradictory evidence as to the circumstances under which said Morris abandoned the business of said Derrick; whereupon the counsel for plaintiff, moved the Court to instruct the jury, that the covenants were independent, and that it was not necessary for said plaintiff, to prove that he had served said defendant as overseer, as set forth in said covenant.To this charge, defendant objected, but the charge was given by the Court, as asked, to which defendant, by his counsel, excepted, ” &c.

The questions of law arising upon the bill of exceptions, are here assigned as error. Our understanding of this cause, does not impose upon us, the duty of examining the technical and (in many instances,) the scarcely discernible distinctions between dependent and independent covenants. Where there are several counts in a declaration, any one of which, authorises a general charge, asked of a Judge to the jury,- if given, it will be applied to that count; if upon no other principle, upon that which intends every thing in favor of judgments, which the pleadings or the law warrant.

Had the plaintiff m error have desired it, he could have required the Judge to confine his charge to some one particular count, and if not legitimate under that, it might be error. But if not thus re’ stricted, it will apply ip the entire declaration, and will be legalised by showing one count under which it was proper. That the charge objected to, was authorised by the third count, we think clear, as that count assumed, that the covenants in the agreement sued on, were mutual and independent, and the opinion of the Judge, as expressed to the jury, went no farther.

This view of the case being decisive of it — the judgment is affirmed. HOPKINS, C. J. not sitting.