#### Cooper *against*Bissell.

If a *venire.*be executed and returned person^ “than wfthputÍTpS ofafacFsSeSand such^ersra upon tL record, it is an •error for which judgment will *be*reversed.

. Counts in trespass *viet*anrns, and trover, cannot be joined in the same declaration, the judgment on each being different.

A misjoinder of counts is a fatal defect, *on*demurrer, and arrest of judgment, or writ of error»

IN ERROR, to the Court of Common Pleas of the cofin- - . 7 *ty*Of (Jnsidci•

The defendant in -error brought an action in the Court below against the plaintiff in error. The declaration contained two counts; 1. A count in *trespass,*for breaking the pl3TM^’5 close, and taking and carrying away his horse; an¿ 2. A count in *trover,*for the conversion of the plain- ’ tiff’s horse. The defendant below pleaded *not guuty. A*. *147venire was awarded on the record, and the cause was continued for several terms, by *vice-comes non misil breve.*The record then stated, that at the term when the cause was tried, the coroner of the county of *Oneida*returned the precept to him directed and delivered for summoning a jury between the parties, and that the jurors, thus summoned, being sworn, found a verdict for the plaintiff below.

Judgment having been rendered according to the verdict, the defendant below brought a writ of error; and the errors alleged were, the misjoinder of counts, and that the *venire*had been returned by the coroner, without any award to that effect, upon the record.

*Talcot,*for the plaintiffin error.

He cited, 21 *Vin,*Abr„ 306, Trial, *(H. e.)*pi. 9, 10, 11. 2 *Burr.*1114. Lord *Raym.*273, 274. 2 *Saund.*117. *e. n.*2. 117. c. *(n.)*1 *Chitty PI.*198, 199. *5 Bos. Pull.*476. 2 *Wils.*322. 2 *Bos. fy Pull.*424. 1 *Chitty PI.*206.

*F. C. White*and *Sill,*contra.

They cited, 3 *Wils.*351. 1 *Johns. Rep.*504. 10 *Johns. Rep.*240. 11 *Johns. Rep.*2 *Chitty PI.*295. *n.(e.)*

*Per Curiam.*

Without a suggestion of special facts, and an express award of the *venire*to the coroner, or to elizors, the process can be legally executed and returned by the sheriff only. The statute of *jeofails*does not extend to such a case, and the judgment is, on this ground, erroneous. (1 *Sell. Pract.*392.)

The rule in regard to joining different counts in the same declaration is somewhat perplexed; but a review of all the adjudged cases warrants, at least, this conclusion, that where the counts require different judgments, they cannot be joined. *(Tidd. Pr.*11. in nolis. 1 *Chitty Plead.*199. *Courtney*v. *Collet,*Lord *Raym.*272. 2 *Saund.*117. e. n. 2.) The judgment in trespass *vi et armis,*and for all other torts committed with force and violence, is, beside damages, *quod defendens capiatur pro fine*; and in all actions of trespass on the case, for torts, which imply no force, the judgment is *quod sit in misericordia.*Trover is of the latter description, and, therefore, cannot be joined with trespass *vi*
      *148
      *et*armis. We regret that the law is so, but the authorities show,’that this may be taken advantage of on a writ of error, as well as on demurrer, or on arrest of judgment. *( Chitty on*Plead. 206.)

• Judgment reversed.