Guinnip v. Carter

58 Ill. 296

• Court: Illinois Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

Mr. Justice Walker

delivered the opinion of the Court:

This was an action brought on the record of a judgment recovered in another State, for the sum of $1,171 and $4.95 costs. The summons was in debt, and so were the three first counts in the declaration. The fourth count was, however, in assumpsit. It was the common count for $500 due and owing for interest. It avers; “And being so indebted, the said Guinnip,. in consideration thereof, afterwards, &c., undertook and then and there faithfully promised the said plaintiffs ” to pay the same when thereunto afterward requested.

In the cases of Cruikshank v. Brown, 5 Gilm. 75, and MeGinnity v. Laguerenne, ib. 101, it was held, that in a common count the averment that the defendant, in consideration of the indebtedness, undertook and promised to pay, when thereunto after-wards requested, made it a count in assumpsit. It was there said that, “ had the pleader intended it for a count in debt he should have used the word ‘ agreed ’ instead of the word‘ promised/ ” In those cases the judgments were reversed, because there was a misjoinder of counts in debt and assumpsit.

In the case of Adams v. Hardin, 19 Ill. 273, it was held to be error to join counts in debt and assumpsit, and the judgment was reversed for that reason. This is a rule of general application, and has always been held to be error under the common law rules of pleading. The case at bar falls within and must be governed by the cases above cited. In this case there were in the declaration three counts in debt and one in assumpsit. This was a clear misjoinder of counts, and for that reason the judgment must be reversed and the cause remanded, with leave to amend.

Judgment reversed,.