Hallock v. Powell
New York Supreme Court
This was an action on the warranty(a) of the sale of a horse. The declaration contained two counts : one on the warranty, the other in assumpsit.(b) To these the defendants pleaded not guilty, and non assumpserunt At the trial the plaintiff took a verdict on the count in assumpsit; but as to the first, entered a nolle prosequi, which was inserted on the postea, and also on the record.
Read the full summary
This was an action on the warranty(a) of the sale of a horse. The declaration contained two counts : one on the warranty, the other in assumpsit.(b) To these the defendants pleaded not guilty, and non assumpserunt At the trial the plaintiff took a verdict on the count in assumpsit; but as to the first, entered a nolle prosequi, which was inserted on the postea, and also on the record. The defendants applied, on a case submitted, to arrest the judgment, because two incompatible counts were joined in the declaration,
1Opinion of the CourtLivingston, J.
The motion cannot be granted. Great strictness was formerly observed in preventing two distinct causes of action being joined in the same declaration. Many of the old cases, however, have been overruled, and are not now regarded as law. But notwithstanding some relaxation in this respect, courts seem averse to permitting actions for torts to be blended with those *on contracts— either because they required different pleas, or because the judgments are not the same. These are the reasons generally assigned. It may seem arrogant, after they have been so often repeated, to say there is not much…
2Cited by6 opinions
- Dean v. MasonSupreme Court of Connecticut · 1822
- Hutt v. HickeySupreme Court of New Hampshire · 1892
- Executors of Evertson v. MilesNew York Supreme Court · 1810
- Howe v. CookNew York Supreme Court · 1839
- Fowler v. AbramsNew York Court of Common Pleas · 1854
1 more not listed; retrieve them via the Exa API.