Grubb v. Burford
Supreme Court of Virginia
Error to a judgment of the Circuit Court of Botetourt county, rendered October 28, 1899, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants. The declaration contained the common counts, and also a special count, on a contract under seal. There was a demurrer to the declaration and to each count thereof, which was overruled. The only plea filed was non-assumpsit, upon which issue was joined.
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Error to a judgment of the Circuit Court of Botetourt county, rendered October 28, 1899, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants. The declaration contained the common counts, and also a special count, on a contract under seal. There was a demurrer to the declaration and to each count thereof, which was overruled. The only plea filed was non-assumpsit, upon which issue was joined. The other facts sufficiently appear in the opinion of the court.
1Opinion of the CourtBuchanan, J.
The first assignment of error is to the action of the court in overruling the demurrer to the declaration and to each count thereof.
The ground of demurrer to the whole declaration is that there is a misjoinder of counts. All the counts are common counts in assumpsit, except the last, which is a special count upon, or for, the breach of an agreement under seal. There is no doubt that at common law those counts could hot be united in one declaration, and that such misjoinder would have been fatal on general demurrer. But by act of Assembly approved January 25, 1898, (Acts 189J-’8, page 103,) it…
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