8 Blackf. 63 | Ind. | 1846
Sherman sued Mahan, Comparet, and Thompson in debt. The declaration contains two counts. The first count alleges that the defendants made their promissory note, and thereby promised, &c., whereby an action had accrued, &c. The second count is in the usual form in debt for money had and received. The defendants pleaded jointly non assumpsit; and Mahan and Comparet each pleaded a special plea, to which a demurrer was sustained. Trial on the plea of non assumpsit; verdict and judgment for the plaintiff.
The special pleas professed to answer the whole declaration, but really answered only the first count; they were for *
But the plaintiffs in error contend that the judgment should have been in their favour on the demurrers, on account, as they allege, -of a fatal defect in the declaration. The alleged defect is a misjoinder of actions. It is insisted that the use of the word promise instead of agreement in the first count makes that a count in assumpsit, which cannot be joined with a count in debt. This objection cannot prevail. The law indeed seems to be settled, that a declaration commencing in the usual form in debt, and containing the common counts in some of which it is alleged that the defendants promised, &c., the other counts being accurately framed in debt, is bad for a misjoinder of assumpsit and debt. Brill v. Neele, 3 B. & Ald. 208. — See, also, 1 Chitt. Pr. 415, n. a, and the authorities there cited. But a declaration in debt on a promissory note, which alleges, in describing the contract, that the defendant promised, &c., is good, and may be joined with other counts in debt. Bishop v. Young, 2 B. & P. 78. Such an allegation is nothing more than the statement of the contract or liability which is the foundation of the action of debt. Should a declaration proceed, however, and allege that, by means' of the premises, the defendant became liable to pay, and in consideration thereof promised to pay, &c., the action would assume the form of assumpsit. A reference to books of forms of approved authority will show, that the use of the wTord promise in setting out a promissory note in an action of debt is usual. 2 Chitt. PL 388. — 1 Chitt. Pr. 434.
There is, however, a fatal error in the proceedings of this cause. The action went to trial on the plea of non assumpsit. That plea to an action of debt is a nullity. Perry v. Fisher, 6 East, 549. There was therefore a trial without an issue, which is erroneous. Shiel v. Ferriler, 7 Blackf. 574.— Dunn et al. v. Hall, at this term.
The ■ judgment is reversed with costs. Cause remanded, &c.
