Moody v. Vreeland

7 Wend. 55

Opinion

By the Court,

Sutherland, J.

The assignment is undoubtedly bad. The general assignment is of an error in law, the other of an error in fact. And it is settled that you cannot assign error in fact and error in law together. They are distinct things, and require different trials. Bac. Ab. tit.-Error, vol. 2, p. 487, K. sec. 2. 1 Saunds. 101, q. 2 Ld. Raym. 882. 1 Strange, 439. 1 Sidf. 147. 1 Leon. 145. ■ 1 Arch, Pr. 246. 2 Dunl. 1145. ■ But the proper way to take advantage of such assignment is by demurring to the assignment, on the ground of duplicity. 2 Bac. Abr. 487, Error, K. 2. I Arch. Pr. 248, and cases cited above. Now duplicity can be reached only by a special demurrer. 1 Arch. 248. 1 Chitty’s PL 513. 1 Saund. 337, b. note 3. Bac. Abr. Pleas and Pleadings, K. Comyn’s Dig. Pleas and Pleadings, E. 2. 2 Johns. R. 433. 10 East, 73. The authorities all consider the assigning of error in law and error in fact in one assignment as a case of duplicity in pleading, and not a misjoinder of counts. A declaration will be held bad on general demur-, rer, or in arrest, or on error, in a case of misjoinder. 1 Chitty’s PL 207. 2 Bos. & Pul. 424. 4 T. R. 347. 1 H. Bl. 108. But not so for duplicity.

But it is said that the assignment of error in fact is bad on the face of it, as impeaching the record. Without considering whether it be or be not so, it is a sufficient answer to say that the demurrer is to both assignments; and the general assignment being unquestionably good, the principle applies, that where there is a general demurrer to a declaration, containing both good and bad counts, judgment will be given for the plaintiff. So, where several breaches are assigned in the declaration, some of which are well assigned, and others not, the plaintiff will have judgment upon general demurrer. 2 Saund. 380, note 14. 1 id. 286, note 9. 3 Caines’ R. 89. 11 Johns. R. 54. Í3 id. 264. 1 Will. 252.

If the assignment is bad, as impeaching the record, the defendant in error can avail himself of the objection under the general plea of in nullo est erratum . So, if an error in fact that is not assignable, is assigned, and in nullo est erratum be pleaded, it is no confession of it, as if it be assigned that the court was not sitting on the day when the judgment purported to have been given, because that is against the record; and in such case in nullo est erratum is' only a demurrer. Bac. Ab. Error, K. 2, and.cases there cited. But if an error in fact be well assigned,.in nullo est erratum .is a confession.of it..

The plaintiff in error, therefore must have judgment upon the demurrer, but leave is given to the defendant to plead to the assignment on payment of costs.