
    Booth vs. The Farmers and Mechanics’ National Bank of Rochester.
    A complaint, in the first count, alleged that on, <fcc., the defendant, for value received assigned to the plaintiff a certain judgment; that subsequently on, <fce., the defendant discharged said judgment of record; that some of the defendants therein were owners of certain personal property, which, but for such discharge would have been liable to execution and sale; that such defendants are now insolvent; and that the plaintiff was injured by such discharge. The second count in the complaint was an ordinary count for money had and received.
    
      Held, on demurrer; 1. That if the pleader was right in supposing that the law implied a promise by the defendant not to satisfy the judgment after it was assigned to the plaintiff, he was bound to allege that the defendant undertook and promised not to satisfy it, in order to make it a count on contract.
    2. That for the want of such an -averment, there was a misjoinder of causes of action; the one being for a tort, and the other on contract.
    When case and assumpsit were, at common law, concurrent remedies, the form of action that the pleader selected was determined by the insertion in, or omission from, the declaration, of the allegation that the defendant undertook and promised. This right of selecting remedies, and whether the action is in tort or assumpsit, must, since the Code, be determined by the same criterion.
    APPEAL from an order made at Special Term overruling a demurrer to the complaint.
    The complaint, in the first count, alleged that on the 11th day of December, 1861, the defendant, for value received, assigned to the plaintiff a certain judgment. That the defendant, on the 11th day of April, 1865, discharged said judgment of record; and that some of the defendants in said judgment were the owners of certain personal property, which, but for the said discharge of such judgment, would have been liable to execution and sale. And that such defendants in said judgment are now insolvent; and that the plaintiff was injured by said discharge, &c.
    The second count in the complaint was an ordinary count for money had and received.
    The defendant demurred to the complaint, on the ground that two causes of action were improperly joined, viz., one for a tort, and one on-contract. ■
   By the Court, Muxlin, P. J.

Before the introduction of the system of pleading prescribed by the Code, the actions of assumpsit and on the case were concurrent remedies for many injuries resulting from nonfeasance, misfeasance and malfeasance to personal property. (1 Chit. Pl. 153.) When assumpsit was adopted, the pleader was bound to allege that the ‘defendant undertook and promised to do or not to do the particular act which was the cause of the injury sustained by the plaintiff, or that he undertook to do it in a skillful and proper manner, nevertheless the said defendant not regarding his said promise and undertaking, but contriving and -intending to injure the plaintiff, &c., did' or omitted to do the act, the doing or omission to do which, caused the injury. (1 Chit. Pl. 135, 136.) The count in case is substantially the same as that in assumpsit, except that the allegation that the defendant promised and undertook to do, or not do, the particular act complained of is omitted. (See 1 Chit. Pl. 320, &c.)

If the pleader is right in supposing that the law implied a promise by the bank not to satisfy the judgment after it was assigned to the plaintiff, he was bound to allege that the bank undertook and promised not to satisfy &c., in order to make it a count on contract. The case of Kortright v. The Buffalo Commercial Bank, (20 Wend. 94,) was in assumpsit, to recover for a breach of the promise the law implied against the bank with its stockholders, that it would permit a transfer of its stock on its books in case of sale thereof. This was a duty imposed by the charter of the bank ; and when a duty is imposed by law on a corporation, a promise to perform it is implied. A promise was doubtless alleged in the declaration, in that case, thus making it a count in assumpsit. The' codifiers, while professing to abolish the distinction between forms of actions, found it impossible, or impracticable, in many cases, to effect their object; and this .case illustrates the failure in at least one class of cases. When case and assumpsit were at common law concurrent remedies, the form of action that the pleader selected was determined, as I have shown, by the insertion in, or omission from, the declaration, of the allegation that the defendant undertook and promised. This right of selecting remedies, and whether the action is in tort or assumpsit, must be determined by the same criterion. If this is not so, then the right of election is taken away. If taken away, which of the two is left ? An action on contract cannot be j pined with one in tort. How are we to determine whether the action is one on contract, or in tort, unless the pleader by averment alleges the making of the contract, and demands damages for a breach in the one case, or, by the omission of such'an averment, makes it an action in tort ? I know of no more certain or convenient criterion by which to determine the class to which a cause of action-belongs than by the one suggested. If some such rule is not established, the question of misjoinder will arise in every case in which, at common law, assumpsit and case were concurrent remedies.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and M. D. Smith, Justices.]

The order of the Special Term is reversed, and an order granted sustaining the demurrer, with leave to the plaintiff to amend in twenty days, on payment of the costs of the demurrer and of the appeal.  