
    Stewart against M'Bride.
    In Error.
    If1 there be two counts in a declaration* and one of them state a fcause of action Vdiieii had not accrued when the suit was «commenced, &nd a general Verdict be found for the plaintiff, the judgment muist be reversed*
    
      MPRlDE on the 29th November, 1809, brought an action on a promissory note against Stewart, in the District Court of the city and county of Philadelphia. At the trial, after the jury were called, but before they were sworn, the defendant’s counsel moved to add a plea of recovery in a suit subsequently brought by the same plaintiff against the same defendant, for the same cause of action; which the court refused to permit, A general verdict was given for the plaintiff.
    The errors now assigned were,
    
      First, That the court refused permission to plead a former recovery for the same cause of action.
    
      Second, That the declaration contained two counts ; one of Which, was for a cause of action which had not accrued, when the suit was commenced.
    
      Philips, for the plaintiff in error,
    cited Act of March 21st, 1806, sec. 6. 4 Sm. L. 329. Gordon v. Kennedy,
      
       Hambleton v. Veere.
      
    
    
      S. Levy, contra,
    as to the first error assigned, referred to Waggoner v. Line;
      
       and, as to the second, observed, that although there were two counts in the declaration, there was but one cause of action; and that in copying the date of the hote in the Second count, the clerk had made a mistake,
    
      
       2 Binn. 293.
    
    
      
       2 Saund. 169.
    
    
      
       3 Binn. 582.
    
   Tilgiímán C. j,

delivered the opinion of the. Court. The declaration contains two counts ; one on a promissory note dated February 16th, 1807"; the other on a note dated February 16th, 1809, each payable one year after date. The action was brought on the 29th November, 1809 ; so that the hote mentioned in the second count, was not due when this Suit Was commenced, The verdict was general; therefore the plaintiff has recovered on a cause of action which had not accrued when the suit was commenced. We have decided in other cases, that such an action cannot be supported. Indeed it is contrary to the plain principles of justice. The judgment must therefore be reversed, and a venire de novo awarded.

Judgment reversed.  