Swem v. Sharretts

Bartol, C. J., delivered the opinion of the Court. A verdict was rendered in favor of the appellee, the plaintiff helow, and the appellant moved in arrest of judgment for the alleged reason that “ there is a misjoinder of causes of action in the narr.” The only question for review on this appeal is the action of the “Superior Court” in overruling the motion. The declaration contained - originally sev.en counts, the last of these was for the rent of a dwelling house ; leave was granted to amend, and an eighth count was added for the rent of certain rooms in the dwelling house. The supposed misjoinder is alleged to arise from the first six counts being in indebitatus assumpsit, while it is said the seventh and eighth counts are in debt.

If this he so the objection would he fatal. It was decided in The Canton N. B. Association vs. Weber, 34 Md., 669 , that under the Code, a count in debt cannot be joined with counts in assumpsit, and if a declaration contains such misjoinder it is had in arrest of judgment. This leads us to examine whether the objection in this case is well taken. The first six counts are in the form prescribed in the Code, Art. 75, sec. 22, counts lst to 7th, inclusive, called ‘ ‘ Common Counts. ’ ’ The appellee contends that these counts are in debt and not in assumpsit, because they do not allege a promise by the defendant, which it is said is essential to constitute a count in assumpsit.

At the common law such an allegation was necessary to make a good count in assumpsit. Smith vs. Cox, 11 Mes. & W., 475 ; Metcalf vs. Robinson, 2 McLean, 365 ; Cruikshank vs. Brown, 5 Gilman, 77 ;