
    Cooper against Bissell.
    If a venire. be executed and returned person^ “than wfthputÍTpS ofafacFsSeSand such^ersra upon tL record, it is an •error for which judgment will be reversed.
    . Counts in trespass viet anrns, and trover, cannot be joined in the same declaration, the judgment on each being different.
    A misjoinder of counts is a fatal defect, on demurrer, and arrest of judgment, or writ of error»
    IN ERROR, to the Court of Common Pleas of the cofin- - . 7 ty Of (Jnsidci•
    The defendant in -error brought an action in the Court below against the plaintiff in error. The declaration contained two counts; 1. A count in trespass, for breaking the pl3™^’5 close, and taking and carrying away his horse; an¿ 2. A count in trover, for the conversion of the plain- ’ tiff’s horse. The defendant below pleaded not guuty. A . venire was awarded on the record, and the cause was continued for several terms, by vice-comes non misil breve. The record then stated, that at the term when the cause was tried, the coroner of the county of Oneida returned the precept to him directed and delivered for summoning a jury between the parties, and that the jurors, thus summoned, being sworn, found a verdict for the plaintiff below.
    Judgment having been rendered according to the verdict, the defendant below brought a writ of error; and the errors alleged were, the misjoinder of counts, and that the venire had been returned by the coroner, without any award to that effect, upon the record.
    
      Talcot, for the plaintiffin error.
    He cited, 21 Vin, Abr„ 306, Trial, (H. e.) pi. 9, 10, 11. 2 Burr. 1114. Lord Raym. 273, 274. 2 Saund. 117. e. n. 2. 117. c. (n.) 1 Chitty PI. 198, 199. 5 Bos. Pull. 476. 2 Wils. 322. 2 Bos. fy Pull. 424. 1 Chitty PI. 206.
    
      F. C. White and Sill, contra.
    They cited, 3 Wils. 351. 1 Johns. Rep. 504. 10 Johns. Rep. 240. 11 Johns. Rep. 2 Chitty PI. 295. n.(e.)
    
   Per Curiam.

Without a suggestion of special facts, and an express award of the venire to the coroner, or to elizors, the process can be legally executed and returned by the sheriff only. The statute of jeofails does not extend to such a case, and the judgment is, on this ground, erroneous. (1 Sell. Pract. 392.)

The rule in regard to joining different counts in the same declaration is somewhat perplexed; but a review of all the adjudged cases warrants, at least, this conclusion, that where the counts require different judgments, they cannot be joined. (Tidd. Pr. 11. in nolis. 1 Chitty Plead. 199. Courtney v. Collet, Lord Raym. 272. 2 Saund. 117. e. n. 2.) The judgment in trespass vi et armis, and for all other torts committed with force and violence, is, beside damages, quod defendens capiatur pro fine ; and in all actions of trespass on the case, for torts, which imply no force, the judgment is quod sit in misericordia. Trover is of the latter description, and, therefore, cannot be joined with trespass vi et armis. We regret that the law is so, but the authorities show,’that this may be taken advantage of on a writ of error, as well as on demurrer, or on arrest of judgment. ( Chitty on Plead. 206.)

• Judgment reversed.  