This suit was commenced by defendant in error before a justice of the peace to recover damage caused by the sale of liquor to her husband by Schafer. The justice gave judgment in her favor for $30. Schafer appealed, and the circuit court enlarged her recovery to $97.92. He then brought error. There being no bill of exceptions, the allegation of error is confined to the main record. The objection brought is that the declaration composed of a single count contains two causes of action which are not compatible; that is to say, tort and assumpsit. There was no demurrer, and it does not appear that objection in any form was taken or suggested in the court below.
As the declaration is quite inartificial, no doubt a demurrer would have been sustained. Were the alleged misjoinder admitted, it is not to be assumed that the error would not be made- unavailable by the fourth subdivision of Comp. L., § 6051. Lovett v. Pell, 22 Wend., 369. But we do not agree with counsel for plaintiff in error in the view that the alleged incongruity exists. We think on fair construction the declaration is to be regarded as sounding exclusively in tort. Whatever defect there is, is cured or made harmless now by Comp. L., ch. 190.
The judgment must be affirmed with costs.