#### John J. Cruikshank, plaintiff in error, v. John H. Brown et al., defendants in error.

Error to Jo Daviess.

A count in debt upon a contract, after setting forth the facts necessary to establish the defendants’ liability, further alleged a promise to pay in consideration of the premises: Held, that the count commencing and concluding in debt, was not to be regarded as a count in assumpsit merely because the word promised was used instead of agreed.

No advantage can be taken of a variance between the writ and declaration on a writ of error. It must he taken advantage if by pl'ea in abatement, or by a motion.

A declaration in debt contained a count for work done, goods soldi &c- which concluded thus: “undertook and then and there promised?’ &c. HeZtf, that it was simply an indebitatus assumpsit count, and therefore a misjoinder.

Debt, in the Jo Daviess Circuit Court, brought by the defendants in error against the plaintiff in error and George Cruikshank. At the March term, 1847, the Hon. Thomas C. Browne presiding, a default was entered, and a judgment rendered in favor of plaintiffs for $6262-48 debt, and $2626-65 damages, against John J. Cruikshank the only defendant served.

M. Y. Johnson, for the plaintiff in error.

It is assigned for error, that the action, as shown by the process, is debt, and the declaration is in assumpsit, each count averring a promise. See Chenot v. Lefevre, 3 Gilm. 637; 1 Chitty’s Pl. 394. The declaration should have averred that the defendants “agreed and bound thems,elves.” Metcalf v. Robinson, 2 McLean, 363.

In an action of assumpsit, a count in trover may be joined,, but debt and assumpsit cannot be joined. Flood v. Yandes, 1 Blackf. 102; 3 U. S. Dig. 630, § 131; Brill v. Neele, 3 Barn. & Ald. 208; 1 Chitty’s Pl. 231; Metcalf v. Robinson, before cited.

C. Gilman argued for the defendants in error, in this Court.

The declaration is substantially good. It is a declaration in debt, and not in assumpsit as the counsel for the plaintiff *76in error contends. The commencement and the conclusion are both regular. The averment of a promise merely, does not vitiate the count, but it is often used in declarations in debt. See Morehead’s Pr., title “Declarations in Debt” 723, et seq.; Bishop v. Young, 2 Bos. & Pul. 78; Flood v. Yandes, cited by plaintiff.

The distinction attempted to be drawn by the Court in Metcalf v. Robinson, 2 McLean, 363, between the words “promise” and “agree,” is entitled to but little weight. It is a distinction without a difference.

A variance between the writ and the declaration, should be taken advantage of by plea in abatement. Prince v. Lamb, Bre. 298; Rust v. Frothingham, Ib. 258; Duval v. Craig, 2 Wheat. 45; Chirac v. Reinicker, 11 do. 280.

■ The Opinion of the Court was delivered by

Trumbull, J.

The plaintiff in error was sued in an action of debt, and judgment rendered against him by default for $6262-48 debt, and $2626-65 in damages.

To reverse this judgment the plaintiff assigns a number of errors, which, however, resolve themselves into two: First, that “the writ sued out in said cause is in an action of debt, and the declaration in assumpsit;” second, that “it was error in the Court to render any judgment in favor of the plaintiffs below on the pleadings.”

The writ which was served only on one of the defendants below who is the plaintiff here, is admitted to be in debt.

The declaration contains six counts, the first of which is as follows, viz : “John H. Brown and James W. Brown, partners in trade, under the name of JohnH. Brown & Co., complain of George Cruikshank and John J. Cruikshank, formerly partners in trade under the name of George Cruikshank & Co., in a plea that they render the Said plaintiffs six thousand, two hundred and sixty two ^ dollars which they justly owe said plaintiffs. For that whereas the said defendants, on the first day of February, in the year of our Lord, one thousand eight hundred and forty, at Pittsburgh, made their due bill in writing, and delivered the same to the said plaintiffs, and thereby acknowledged themselves in-*77deb ted to the said plaintiffs, by the said name of their firm of John H. Brown & Co., three thousand dollars, value received, with interest from date, and the said defendants then and there in consideration of the premises, promised to pay the due bill to the said plaintiffs by the name of their firm, John H. Brown & Co., according to the tenor and effect thereof.”

This count, after setting forth such facts as render the defendant liable to pay, alleges also a promise to pay in consideration of the premises. The allegation of a promise to pay might be rejected as surplusage, and the count, which would then unquestionably be in debt, would still be good.

We do not however admit, that when a contract is specially declared upon, and the count possesses all the attributes of a count in debt, commencing and concluding as such, that it is tobe regarded as a count in assumpsit merely because the word promised is used in place of the word agreed. A count in debt containing the word promised was held good in the cases of Bishop v. Young, 2 Bos. & Pul. 78, and Flood v. Yandes, 1 Blackf. 502.

There is, then, no error on account of any variance between the writ and declaration, as to the form of the action, as the declaration manifestly was intended to be, and is, in part, at least, a declaration in debt. But if it were not, no advantage could be taken of the variance between the writ and declaration on a writ of error. Variances of that character are matters pleadable in abatement only. Duval v. Craig, 2 Wheaton, 45; Chirac v. Reinicker, 11 Wheaton, 280; Prince v. Lamb, Breese, 278; Rust v. Frothingham, Ibid. 258; or perhaps, according to modern practice, advantage might be taken of the variance by motion in the Circuit Court.

But while the first count in the declaration is clearly a count in debt, the last one, which is upon promises for work done, goods sold, money lent, &c.s all in one count, is as clearly in assumpsit. It is simply an indebitatus assumpsit count, and alleges that the defendants were indebted to the *78plaintiffs in the further sum of $20-000 for the work and labor of said plaintiffs by them performed about the business of defendants, and at their request, 'and also in a like sum of $20-000 for money lent, goods sold, &c., and then concludes as follows : “And being so indebted, the said defendants in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, undertook, and then and there promised the said plaintiffs to pay them the said several sums of money in this count mentioned, when the said defendants should be thereunto after-wards requested.”

This contains the words “undertook and promised to pay, and possesses every characteristic which distinguishes a count in assumpsit from one in debt. 1 Chitty’s PI. 394; Chenot v. Lefevre, 3 Gilm. 637.

That debt and assumpsit cannot be joined, is established by numerous authorities. 1 Chitty’s PI. 231; Brill v. Neele, 3 Barn. & Ald. 208; Metcalf v. Robinson, 2 M’Lean, 363.

There is, then, in this case a joinder of counts which the law will not allow, and though we can see no good reason for the rule in this case, nor why the last countin the declaration should not be equally good in debt, as in assumpsit, yet the law is otherwise settled, and we are compelled, however reluctantly, to follow it. The case of Brill v. Neele, is precisely analogous to the present, except that the objection in that case was raised by demurrer. The objection is, however, equally fatal on motion in arrest of judgment, after verdict, or on writ of error. Gould’s PI,, ch. 4, § 87 ; 1 Chitty’s PL, 236.

The judgment of the Circuit Court is reversed, and the cause remanded to afford the plaintiffs in that Court an opportunity to amend their pleadings.

Judgment reversed.