Lovett v. Pell
Court for the Trial of Impeachments and Correction of Errors
Error from the supreme court. Lovett sued Pell in the New-York common pleas, and declared in covenant, upon a sealed instrument, whereby rthe defendant guarantied the payment of rent to accrue upon another instrument executed by a third person. The plaintiff averred that two quarter’s rent, amounting to $350, remained due and unpaid, which he claimed to recover. The declaration also contained the common money counts in assumpsit.
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Error from the supreme court. Lovett sued Pell in the New-York common pleas, and declared in covenant, upon a sealed instrument, whereby rthe defendant guarantied the payment of rent to accrue upon another instrument executed by a third person. The plaintiff averred that two quarter’s rent, amounting to $350, remained due and unpaid, which he claimed to recover. The declaration also contained the common money counts in assumpsit. The defendant pleaded non est factum to the first count, and nonassumpsit to the other counts. The jury found as to the first issue, that the instrument declared on…
1Opinion of the Court
After advisement, the following opinions were delivered :
By the Chancellor.
The assignment for error, that no such verdict was given as stated in the record, no diminution being alleged, was not admitted by the joinder in error; it being an assignment against the record itself.
There can be no doubt that there was a misjoinder of counts; for covenant cannot be joined in the same declaration with assumpsit. The cases on the subject of the joinder of different causes of action are so numerous, and at times so conflicting, that it is difficult to find any general rule which is applicable to all of…
2Cases cited3 opinions
- Strohecker v. GrantSupreme Court of Pennsylvania · 1827
- Chamberlin v. CuylerNew York Supreme Court · 1832
- Moody v. VreelandNew York Supreme Court · 1831
3Cited by16 opinions
- Farmers' Fire Insurance & Loan Co. v. EdwardsNew York Supreme Court · 1841
- Chicago & Alton Railroad v. MurphyIllinois Supreme Court · 1902
- Williams v. BrambleCourt of Appeals of Maryland · 1852
- Colton v. JonesThe Superior Court of New York City · 1868
- Fulton v. HeatonNew York Supreme Court · 1847
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