Mahan v. Sherman

Dewey, J.

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 * *64 that reason bad, and the demurrers were correctly sustained. Whether the pleas were faulty in other respects we have not inquired.

D. H. Colerick and J. G. Walpole, for the plaintiffs. W. H. Coombs and I. H. Kiersted, for the defendant.

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.

Per Curiam.

The ■ judgment is reversed with costs. Cause remanded, &c.