Page:United States Reports, Volume 45.djvu/158

 144 ~ SUPREME COURT.

Garland v. Davis.

sets out no contract except one by way of inducement, made b Mr. Fraoklin, the predecessor ih office of the defendant, and 1t then proceeds to make the gist of its complaint a wrongful and injurious neglect and refusal by the defendant to furnish a copy of _ certain laws to the plaintiff, as had been-agreed by Franklin. We are required to take this view of the declaration, not only by the averments. in it, but by both the present and past positions of the counsel for the plaintiff, that it was intended to be founded on a misfeasance. The plea, however, instead of being *‘ not guilty,”’ as was proper in such case (Com. Dig. Pleader), is non. as- sumpsit, and the plaintiff below, not demurring thereto, nor moving for judgment notwithstanding such a plea, joined issue upon it, and the verdict of the jury conforms to the plea and issue, and merely finds, ‘ that the defenddnt did assume upon himself in manner and form,”’ &c., and assesses damages, ‘‘sustained by reason of the nonperformance of the promise and assumption aforesaid.” - to the general issue.should traverse the material averments in the declaration, and, where the action is one on the case for a tort, should deny the tort by pleading ‘‘not guilty,” it is laid down - in'most elementary treat ses that ‘ not guilty ’ is the proper general issue in such cases. See Com. Dig. Pleader. S
 * l;eside the general reasoning in the books, that pleas amounting

Beyond this, it has been actually adjudged in an action on the case, after full heating, that non assumpsit wes a bad plea. - Noble " v. Lancaster, Barnes, 125. S - That action was trover, but being still an action on the case, the

same principle' applied. ; . Nor is the difference merely formal or technical between ac- - tions founded in tort and in contract. 1 Chit. Plead, 418, 229.

Because, when in tort or ex delictu, a set-off is not admissible,

nor can infancy be pleaded as to one ex contractu, nor can a plea in abatement be sustained, that &l concerned in the wrong are nat joined, as it may be in counts oni contracts,-and a writ of inquiry - must issue to ascertgin the damages, which is often unnecessary in suits on contracts. A declaration is bad which unites a count in tort with one in contract. 2 Chit. 229, 230 ; 1 Chitty’s Rep. 625, note; 4 D. & E. 794 ; 8 D. & E. 33. | |

- Various other cases'analogous to this might be cited, which tend to show that the present plea is improper, but it is not - deemed necessary, in this stage of the inquiry, to enlarge on that point; and I proceed to the next and more difficult question, whether such a plea, though bad on demurrer, should not be con- sidered as good after verdict, and cured by the statute of jeofails. - As a general rule, all informality in a good plea is held to be cured by a verdict, and ought to be, in order not to delay, through a defect of mere form, what may seem to be just. 1 Levinz, 32;

6-Mod. 1 ; Com. Dig. Pleader, R. 18 ; 6 Johns. R. 1..

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