#### Absalom Adams, Plaintiff in Error, v. Martin D. Hardin, Defendant in Error.

ERROR TO SCOTT:

Counts in debt and assumpsit cannot be joined, and a demurrer to a plea, filed in such a case, should be carried back to the declaration. Judgment should be given against the party committing the first fault in pleading.

The defendant in error, as assignee of a promissory note, sued the plaintiff in error, impleaded with one James Turner, in the court below, and filed his declaration, containing a special count, in debt, on the note, and the common counts in assumpsit, the declaration concluding in debt.

To this declaration defendant below filed a special plea, alleging that, as to $50, part of the debt claimed in said declaration, and as to $90, part of the damages claimed therein, plaintiff actio non, because the plaintiff below, before said note was assigned to him, and after the accrual of the causes of action set out in the declaration, accepted from the defendant, on account of said note and said causes of action, certain articles of personal property, valued by them at $65, in satisfaction of $50, due on said note, and in full satisfaction of all other claims held by him against defendant below.

. To this plea defendant filed a general demurrer, which demurrer was by the court sustained to said plea, and judgment rendered for the plaintiff below, against the plaintiff in error, for his debt and damages.

Plaintiff in this court assigns for error:

1. That the court sustained said demurrer to the plea, when it ought to have sustained it to the declaration.

2. That the court erred in rendering judgment for' the plaintiff below, and in not rendering judgment for the defendant below, upon the record.

Knapp & Case, for Plaintiff in Error.

Berry & Haldeman, for Defendant in Error.

Breese, J.

The first count in the declaration, in this case, is in debt on a promissory note. The common counts are in assumpsit.

To the plea of part payment plaintiff demurred, and the demurrer was sustained by the court.

The error assigned is, that the court sustained the demurrer *274to the plea, when it should have been sustained to the declaration.

We think the error is well assigned.- The rule is universal, and without exception, that debt and assumpsit cannot be joined in the same declaration. 1 Gh. PL 231.

There being an improper joinder of counts, the demurrer to the plea should have been made to reach that objection by carrying it back to the narr., on the principle that judgment should be given against the party committing the first fault in pleading.

It is not like the case in 4th Gilman, 40, where, there being two good counts in the declaration, and no improper joinder, the demurrer in that case was properly confined to the plea.

The judgment is reversed and the cause remanded.

Judgment reversed.