Pell v. Lovett

19 Wend. 546

Opinion

By the Court,

Bronson, J.

It has been often said that . . .. counts in covenant cannot be joined with counts in assumpsit; 1 Chit. Pl. 199; Tidd Pr. 10, 11; and if there be no adjudged case upon the precise point, it is because no one has ever before ventured on the experiment of declaring in this manner. That a misjoinder of counts is fatal on a writ of error as well as on demurrer, has often been decided in England, and was adjudged by this court in Cooper v. Bissell, 16 Johns. R. 146. Although the present statute of amendments, 2 R. S. 424, is in some respects broader than the former one, it has not cured this objection,

Judgment reversed.