Freeborn v. Denman

1. Error in fact and error in law cannot be joined in one assignment of errors. 2. If they are joined, the proper way to take advantage' of it is by-demurrer. 3. After demurrer, the assignment of errors may be amended.

This was a writ of error, brought to reverse a judgment which had been rendered by the Court of Common Pleas of the county of Middlesex against the plaintiff in error, who thereupon brought this writ, and the following errors were assigned: 1. That, by the record, it appeared that the referees in the said record mentioned reported to the Court of Common Pleas, that there was due to the said John Denman the sum of seventy-one dollars ; that the said court gave ’judgment upon that report for the said John Denman against the said Thomas Freeborn, and added thereto, by way of increase, the costs of suit, whereas, by law, the said John could not recover costs against the said Thomas in the said action, the said-judgment, without costs, being under one hundred dollars. 2. That action in the Common Pleas was brought by the said John Denman and’one Randolph Jaques, jointly, against the said Thomas Freeborn, and the said referees,’ to whom the said action was referred, reported to the said Court of Common Pleas, that there was due to the said John Den-man the sum of seventy-one dollars : which report does not appear to be upon the matters in difference in the cause. 3. That, by the record, it appears that the action in the Common Pleas was brought by the said John Denman and Randolph Jaqués,-jointly,- against the said Thomas Freeborn ; that the referees reported in favor of the said John Denman, and the Court of Common Pleas gave- judgment for the said John against the said Thomas, when in truth and in fact the said Randolph Jaques, before the referees made their report, died. To this assignment of errors, there was a demurrer and joinder in demurrer, and the cause of demurrer specified was, that' the plaintiff in error had, in his assignment of error, joined error in law and error in fact, which it was not lawful for him to do.