Mardis v. Terrell ( 1829 )

OPINION OF THE COURT — by the

How. HARRY CAGE.

Upon appeal from the circuit court of Adams county. The declara-sation is in debt, and there are two counts in this declaration, the caption and the first ccunt are in the usual forms of a declaration in debt, upon a ■bill single or writing under seal, the second is a count upon a promissory note, in which the note is fully and particularly described,‘and concludes with an averment that defendant has not paid said note, although often requested, &c. To the second count there is a demurrer, and the special cause set down, is “ that the second count is improperly joined with the first, the first being in debt and the second in assumpsit; to this demurrer then, is a joinder and issue, and upon this issue, the court overruled the demurrer, and gave judgment for the appellee, the plaintiff below.

In looking into the authorities upon this subject, and more particularly into the formsin debt upon promissory notes, in 3d Chitty’s pleading,and also into the forms which are laid down in Chitty on bills, it will be found, that the second count in this declaration, is fully sustained, both in point of form and substance; if therefore it is a good count in debt, it will not, nor can it be denyed, that a count in debt upon a promissory note, may .be joined with a count upon a sealed instrument.

S. M. Grayson for plaintiffIn error. ■ George Adams fordefendant in error.

It is therefore considered by this court, that thére is no error in the judgment and proceedings of the court below.

Let the judgment of the court below be affirmed.