Canton National Building Ass'n v. Weber

Grason, J., delivered the opinion of the Court. Upon the institution of this suit by the appellee against the appellant, a narr. was filed containing seven counts, the ⁶⁷⁰ first six of which were the common money counts, and the seventh was a count on a promissory note, bearing date the 24th day of October, 1868, for $1,000, and payable twelve months after date. Before the jury retired, the plaintiff obtained leave to. amend his narr., and made the amendment by adding an eighth count upon a writing obligatory, bearing date the same day and year, for the same amount, and having the same time to run, as the promissory note declared on in the seventh count. • Additipnal pleas were filed, issues were joined, and the verdict being against the defendant, it moved in arrest of judgment, and filed four reasons, the first and second, because counts in assumpsit and debt were improperly joined in the narr.; the third, because the affidavit, filed with the narr., alleges an indebtedness of $1,000, (exclusive of interest and coáts of protest,) and no date is stated in the affidavit from which interest is claimed to be due, and no statement is made of the amount of interest claimed, yet the verdict is for $1,085, a greater amount than that stated in the affidavit; and the fourth, because the cause of action filed with the narr., shows, by the endorsements upon it, that the title to the same was not in the plaintiff. The Supreme Bench overruled the motion in arrest, and from the judgment overruling the motion this appeal is taken.

Although the forms of pleading have been simplified by the Code, the forms of action have been preserved and kept distinct. The pleadings therefore, however simplified, must be still adapted to the particular form of action brought, and counts in debt can. no more be joined with counts in assumpsit now than they, could at common law. The Act of 1856, ch. 112, section 33, authorized causes of action of whatever kind, except replevin and ejectment, to be joined in the same suit, provided they were by and against the same parties, and in the same