Majority
p. 546Pell vs. Lovett. utica, July, 1838.
Headnote
Counts in covenant and assumpsit cannot be joined in the same action.A misjoinder of counts is fatal on a writ of error, as well as on demurrer.
Error from the New-York C. P. Lovett sued Pell in the court below- The first count of the declaration was in covenant, to yvhich were added several counts in assumpsit. Plea to the first count, non est factum, and to the subsequent counts, non assumpsit. There was a verdict and judgment for the plaintiff on both issues, and Pell now brings error.
J. Law, for plaintiff in error-
P.jA. Cowdrey, for defendant in error.
p. 547
By the Court,
It has been often said that . . .. counts in covenant cannot be joined with counts in assumpsit; 1 Chit. Pl. 199; Tidd Pr. 10, 11; and if there be no adjudged case upon the precise point, it is because no one has ever before ventured on the experiment of declaring in this manner. That a misjoinder of counts is fatal on a writ of error as well as on demurrer, has often been decided in England, and was adjudged by this court in Cooper v. Bissell, 16 Johns. R. 146. Although the present statute of amendments, 2 R. S. 424, is in some respects broader than the former one, it has not cured this objection,
Judgment reversed.