
    George H. Hulett vs. John B. Pixley.
    Under Gen. Sts. c. 129, § 2, cl. 5, a count in contract may be joined in the same declaration with a count in tort, when it is deemed doubtful to which class the cause of action belongs, although the action is entitled in the writ an action of contract.
    This action was described in the writ (which contained no declaration) as an action of contract. The declaration after-wards filed contained counts in contract, to which, “ deeming it doubtful whether this is a cause of action in contract according to chapter 129 of the General Statutes, the plaintiff adds a count in tort, averring that each count is for the same cause of action.” The defendant demurred to the declaration, because the plaintiff had joined a count in tort with counts in contract, contrary to the provisions of that chapter. In the superior court, Rockwell, J., overruled the demurrer; and to this ruling, after trial and verdict for the plaintiff upon issues of fact raised by the answer, the defendant alleged exceptions.
    
      I. Sumner, for the defendant.
    By the Gen. Sts. c. 129, § 12, cl. 1, it is a ground of demurrer, that counts in contract and in tort are improperly joined in the declaration. By § 2, el. 5, when it is deemed doubtful to which class a particular clause of action belongs, “ a count of contract may be joined with a count in tort,” by which the count in tort is made the leading count and determines to which class the particular action belongs ; but a count in tort cannot be inserted in an action of contract. The difference is material, because more stringent proof is required to arrest the defendant upon the writ in an action of tort. And it should appear by the verdict whether the cause of action is in tort or contract, in reference to the question of arrest on execution. Gen. Sts. c. 124, §§ 1, 2, 5. Wood v. Melius, 8 Allen, 434. Hildreth v. Brigham, 12 Allen, 71.
    
      A. J. Fargo, for the plaintiff,
    cited Sullivan v. Fitzgerald, 12 Allen, 482; Carlton v. Pierce, 1 Allen, 26 ; Cunningham v. Hall, 7 Gray, 559; Barlow v. Leavitt, 12 Cush. 483.
   Gray, J.

The demurrer was rightly overruled. The provision of the practice act, authorizing a count in contract to be joined with a count in tort, when it is deemed doubtful to which class the cause of action belongs, does not prescribe how the action shall in such case be entitled; and was enacted in order to enable a plaintiff, by declaring in the alternative, to avoid the danger of a variance between the allegation and proof in a doubtful matter of form. It may be that the name given to the i action in the writ would affect the form of affidavit necessary to warrant an arrest on mesne process ; and that the requisites of an arrest on execution might depend upon the count or counts upon which the verdict is rendered. But neither of those points is presented in this case ; for no arrest was made upon this writ, nor, indeed, could have been, since it contained no declaration'; Gen. Sts. c. 129, §§ 7, 8 ; and no right of arrest on execution can arise until after final judgment. Exceptions overruled.  