Adams v. Hardin

Breese, J. The first count in the declaration, in this case, is in debt on a promissory note. The common counts are in assumpsit. To the plea of part payment plaintiff demurred, and the demurrer was sustained by the court. The error assigned is, that the court sustained the demurrer to the plea, when it should have been sustained to the declaration. We think the error is well assigned.- The rule is universal, and without exception, that debt and assumpsit cannot be joined in the same declaration. 1 Gh. PL 231. There being an improper joinder of counts, the demurrer to the plea should have been made to reach that objection by carrying it back to the narr., on the principle that judgment should be given against the party committing the first fault in pleading. It is not like the case in 4th Gilman, 40, where, there being two good counts in the declaration, and no improper joinder, the demurrer in that case was properly confined to the plea. The judgment is reversed and the cause remanded. Judgment reversed.