
    Howe vs. Cook & Maxwell.
    Counts in assumpsit and traver cannot be joined in the same declaration. To justify" the joinder of counts, it is not enough that they all relate to the same subject matter, and that the evidence is the same to support them ; tbe counts to stand together must be in the same form of action.
    
    The manner in which tbe breach is alleged does not determine the form of action, as where, in a count on a promise implied on the hiring of a horse, it is alleged that the defendant, contriving and intending to injure the plaintiffs, carelessly, negligently and improperly drove, &c.; this verbiage of the count will not convert it into a count in case, if it be clearly founded upon a breach of promise as distinguished from a breach of duty incumbent upon a'bailee.
    Error from the Cayuga common pleas." Cook & Maxwell let a horse to hire to go on a journey, to Howe, who so improperly drove the horse that he died; whereupon an action was brought against Howe. The first and second counts of the declaration were in assumpsit, and the third in trover. The two first counts contained the usual phraseology in declarations of this kind, that the defendant, contriving to injure the plaintiffs, &c. so carelessly, negligently and improperly drove and used the horse that he died and was wholly lost to the plaintiffs, but were clearly founded upon the promise of the defendant. The defendant put in a general demurrer to the declaration. The common pleas rendered judgment in favor of the plaintiffs. The defendant sued out a writ of error.
    
      B. Davis Noxon, for plaintiff in error,
    insisted that the demurrer was well taken for the misjoinder of counts, and that the judgment of .the C. P. should therefore be reversed.
    
      I. Williams, for the defendants in error,
    contended that the counts in the declaration are substantially the same, and are all founded in tort. They allege a breach of duty, arising out of the use of property upon hire, amounting to a tortious negligence. The plea of not guilty would be a good plea to the whole declaration. The two first counts, though in form on contract, are in substance in case charg: ing the defendant with gross negligence. The counsel re-lied upon Church v. Mumford, 11 Johns. R. 479, and Hallock v. Powell, 2 Caines, 216.
   By the Court,

Bronson, J.

Inactions against bailees, attorneys and others for negligence or misconduct in the discharge of their duty, the plaintiff may in general declare either in case or assumpsit. The gravamen may be alleged as consisting either in a breach of duty arising put of an en> ployment for hire, or a breach of promise implied from the consideration of hire : and other counts may be joined belonging to that form of action which the plaintiff elects to pursue. Govett v. Radnidge, 3 East, 62, 70. Church v. Mumford, 11 Johns. R. 479. Mr. Chitty gives precedents for declaring in both forms, and advises the pleader to frame his principal count in such a manner that;a count in trover or one in indebitatus assumpsit may be joined, as the circumstances of the case may require.

Although the plaintiff has two modes of .framing his principal count, and the evidence to support the declaration may be the same in both cases, yet other counts can only be jointed when they belong to that form of action which the pleader adopts. In actions against a carrier, the plaintiff cannot declare in case for' a loss of the goods, and add a count in assumpsit for money paid, or the like; nor' can he declare in assumpsit on the implied undertaking to carry safely, and add á count in trover for the conversion of the property. And so of actions against other bailees. It is not enough that the counts may all relate to the same subject matter t the form of action must be the same in all. Brown v. Dixon, 1 T. R. 274. 1 Chit. PI. 196-7.

The two first counts in this declaration are plainly founded upon contract. They set forth a promise and the breach of it, as the cause of action. The pleader has followed, substantially the precedents for declaring in assumpsit against the hirer of a horse for riding it improperly, &c.; and where this form is adopted, the common indebitatus assumpsit counts may be joined. 2 Chit. PI. 145, 148. The addition of a count in trover was a fatal misjoinder.

The cases relied on by the defendants in error will not aid them. In Church v. Mumford, 11 Johns. 479, it was held that the counts, whether regarded as founded on tort or in assumpsit, were all substantially the same; and on that ground the demurrer for misjoinder was over-ruled. There is some difficulty in understanding the case of Hallock v. Powell, 2 Caines, 216 ; and it is not fully removed by the explanations which were attempted in Evertson v. Miles, 6 Johns- R. 138. It was an action on the warranty of a horse. The reporter states that the declaration contained two counts, one on the warranty, the other in assumpsit. There is nothing in this statement of the case to show a misjoinder. Both counts may have been in assumpsit; for although the ancient mode was to declare in case on a warranty, it had been long settled that assumpsit would also lie, Stuart v. Wilkins, Doug. 18. The reporter may have been mistaken in saying that either count was in assumpsit; for the judge who delivered the opinion of the court' said, that the gist of the action in both counts was a deceit or misfeasance, in delivering the plaintiff a distempered ho'rse, But whatever was the form of action, it is enough that the courUproceeded on the ground that both counts were substantially alike, It was admitted that torts and contracts could not be joined in the same declaration; and the like rule was laid down in Church v. Mumford.

The manner in which the breach is alleged does .not determine the form of the action. In assumpsit, it is not unusual after setting out the contract, to allege for breach that the defendant contriving and fraudulently intending to injure the plaintiff, did not regard his promise, but craftily and subtily deceived the plaintiff, (fee.; arid this form is often followed, not only in actions against bailees and others where case would also lie, but in cases where assumpsit is the only remedy. In declaring upon contracts, it is always-a sufficient breach to show that the defendant did not perform his engagement: and if the plaintiff goes further and alleges that the defendant fraudulently and deceitfully violated his promise, it neither changes the form of the action, nor varies the proo'f to be given on the trial, Lawes’ Plead, in Assump, 259. Evertson v. Miles, 6 Johns, R. 138.

Judgment reversed.  