5 Blackf. 97 | Ind. | 1839
Woods sued Swift in an action of assumpsit before a justice of the peace. The writ was for an amount not exceeding 100 dollars ; without any indorsement of the particular sum demanded.
The declaration contains three counts. There is a separate claim of 50 dollars in each count for the defendant’s breaches of contract, &c.
The general issue was pleaded, and two special pleas in bar. Verdict and judgment in favour of the plaintiff for 40 dollars. The defendant appealed.
In the Circuit Court, the defendant moved to dismiss the suit on two grounds : — first, because the precise sum demanded was not indorsed on the writ; and, secondly, because the amount claimed in the declaration exceeded 100 dollars. The motion was overruled. Verdict and judgment for the plaintiff.
It is not necessary to. examine the objection to the writ, for were the objection otherwise admissible, it comes too late. Such objections must be made before the defendant appears and pleads to the action. Wibright v. Wise, 4 Blackf. 137.
The objection to the suit, founded on the amount demanded in the declaration, should have been sustained. Each count in a declaration is always considered to be for a separate cause of action : were the counts not so considered, more than one would be inadmissible. The plaintiff in this action claims, by the three counts, 150 dollars, which sum is beyond the jurisdiction of a justice of the peace. And there is no general conclusion to the declaration limiting this claim.
The judgment is reversed, and the proceedings subsequent to the motion to dismiss the suit set aside, with costs. Cause remanded, &c. •
