Dehaven v. Tweed

9 Del. 234

• Court: Superior Court of Delaware
• Decided: July 5, 1871
• Status: Published

Opinion

The Court.

There was.no judgment asked for or taken at the first term on the copy and affidavit of the notes filed by the plaintiff, and as the demand for money lent, or for money had and received, is not properly chargeable in book accounts, and is not included in the special provision of the statute referred to, it could not, of course, be embraced with the promissory notes stated and set forth by copies in the affidavit filed of the cause of action. But at common law it could be joined as a distinct cause of action, but in a separate and distinct count in one and the same action with them, and the policy of the common law favors it to avoid multiplicity of action, and there is nothing in the statute to forbid or prevent its being done, as has been done in this case, in the declaration afterward filed in the suit.