The of the Court was delivered
Sergeant, J.The plaintiff in error relies for the reversal of
this judgment, mainly on the misjoinder of the counts; insisting that it appears by the record that the two additional counts were regularly filed in the Court below. Supposing this to be the case, the question arises whether there is a misjoinder' of different actions. The rule is now settled, that different counts may be joined in one action, either when the same plea may be pleaded and the same judgment given, on all the counts of the declaration, or when the counts are of the same nature, and the same judgment is to be given on them all. 1 Chitty’s Plead.. 197. In actions in form ex contractu,, the plaintiff may join as many-different counts ás he *has cause of action in assumpsit; so also in covenant, debt, account, annuity, or scire facias, In the present case, all the counts allege a promise and undertaking by the defendant; the plea to all was the same, and the judgment was the same. If the additional *347counts added to their allegation of a promise and undertaking by the defendant, matters founded on negligence and tort, and advantage could be taken thereof by the defendant, it could only be by sp’ecial demurrer for informality, as was held in White v. Risden, (Cro. Car. 20.) After verdict it is sufficient that they concur with the original declaration in stating a contract. There is, therefore in this case no misjoinder.
There is nothing in the other error relied on, of the admission of Mr. Stillé as a witness.
Judgment affirmed.
Cited by Counsel, 5 447 5 Watts & 509 7 Id. 145.
Overruled as to the competency of the witness, 6 Barr, 326; see also, .4 Watts, 254; 5 Watts & Sergeant, 510; 6 Id. 556 : 7 Id. 145 : 8 Id. 57 , 274: 1 Barr, 173, 365; 2 Id. 46, 427 ; 3 Id. 376 ; 7 Id. 326 : 10 Id. 430; 1 Harris, 110; 5 Id. 103 ; 7 Id. 177,193 ; 9 Id. 298, 476 ; 11 Id. 28; 2 Casey, 512; 11 Id. 457; 5 P. F. Smith, 331. The law on this subject has however been changed by act of 15th April, 1869. g 1, P. L. 30, Pur. Dig. Sup. 1566, gl.