
    Lovett v. Pell, 22 Wend. 369.
    In S. Ct. 19 id. 546.
    
      Pleading ; Misjoinder of Counts.
    
    The plaintiff in error sued Pell in the New York Common Pleas, in covenant upon a sealed instrument, by which defendant guarantied the payment of rent to accrue from a third person. With this he joined the common money counts in assumpsit. Defendant pleaded non est factum to the first count, and non assumpsit to the others. The jury found both issues in favor of the plaintiff. Upon Avrit of error, the Supreme Court reversed the judgment of the Common Pleas, and now on writ of error brought to this court, the court held that,
   Error would not lie, since the Rev. Stat. by which it is provided that after verdict, a judgment shall not be reversed for mispleading, for a misjoinder of counts; but the mistake must be taken advantage of by demurrer. They also held, that the special assignment of errors in this case, “ that the issues joined were not tried, was bad, as it impeached the record; and that the joinder in error was not a confession of the fact assigned as error, but operated as a demurrer.  