#### Mahan and Others *v.*Sherman.

If a plea profess to answer the whole declaration, and answer only one of the counts, it is bad.

A count in debt on a promissory note, which alleges, in describing the contract, that the defendant *promised,*&c., is good, and may be joined with other counts in debt.

A plea of non assumpsit to an action of debt is a nullity.

A trial without an issue is erroneous.

ERROR to the *Allen*Circuit Court.

Dewey, *J.*

Sherman sued *Mahan, Comparet,*and *Thompson*in debt. The declaration contains two counts. The first count alleges that the defendants made their promissory note, and thereby *promised,*&c., whereby an action had accrued, &c. The second count is in the usual form in debt for money had and received. The defendants pleaded jointly non assumpsit; and *Mahan*and *Comparet*each pleaded a special plea, to which a demurrer was sustained. Trial on the plea of non assumpsit; verdict and judgment for the plaintiff.

The special pleas professed to answer the whole declaration, but really answered only the first count; they were for * *64that reason bad, and the demurrers were correctly sustained. Whether the pleas were faulty in other respects we have not inquired.

*D. H. Colerick*and *J. G. Walpole,*for the plaintiffs.

*W. H. Coombs*and *I. H. Kiersted,*for the defendant.

But the plaintiffs in error contend that the judgment should have been in their favour on the demurrers, on account, as they allege, -of a fatal defect in the declaration. The alleged defect is a misjoinder of actions. It is insisted that the use of the word *promise*instead of *agreement*in the first count makes that a count in assumpsit, which cannot be joined with a count in debt. This objection cannot prevail. The law indeed seems to be settled, that a declaration commencing in the usual form in debt, and containing the common counts in some of which it is alleged that the defendants *promised,*&c., the other counts being accurately framed in debt, is bad for a misjoinder of assumpsit and debt. *Brill*v. *Neele,*3 B. & Ald. 208. — See, also, 1 Chitt. Pr. 415, n. a, and the authorities there cited. But a declaration in debt on a promissory note, which alleges, in describing the contract, that the defendant *promised,*&c., is good, and may be joined with other counts in debt. *Bishop*v. *Young,*2 B. & P. 78. Such an allegation is nothing more than the statement of the contract or liability which is the foundation of the action of debt. Should a declaration proceed, however, and allege that, by means' of the premises, the defendant became liable to pay, and in consideration thereof *promised*to pay, &c., the action would assume the form of assumpsit. A reference to books of forms of approved authority will show, that the use of the wTord promise in setting out a promissory note in an action of debt is usual. 2 Chitt. PL 388. — 1 Chitt. Pr. 434.

There is, however, a fatal error in the proceedings of this cause. The action went to trial on the plea of non assumpsit. That plea to an action of debt is a nullity. *Perry*v. *Fisher,*6 East, 549. There was therefore a trial without an issue, which is erroneous. *Shiel*v. *Ferriler,*7 Blackf. 574.— *Dunn et al.*v. *Hall,*at this term.

*Per Curiam.*

The ■ judgment is reversed with costs. Cause remanded, &c.