Hulett v. Pixley

97 Mass. 29

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1867
• Status: Published

Opinion

Gray, J.

The demurrer was rightly overruled. The provision of the practice act, authorizing a count in contract to be joined with a count in tort, when it is deemed doubtful to which class the cause of action belongs, does not prescribe how the action shall in such case be entitled; and was enacted in order to enable a plaintiff, by declaring in the alternative, to avoid the danger of a variance between the allegation and proof in a doubtful matter of form. It may be that the name given to the i action in the writ would affect the form of affidavit necessary to warrant an arrest on mesne process ; and that the requisites of an arrest on execution might depend upon the count or counts upon which the verdict is rendered. But neither of those points is presented in this case ; for no arrest was made upon this writ, nor, indeed, could have been, since it contained no declaration'; Gen. Sts. c. 129, §§ 7, 8 ; and no right of arrest on execution can arise until after final judgment. Exceptions overruled.