Dominick v. Harmony Talking Machine Co.

Citations

• 27 Del. 293
• 4 Boyce 293
• 88 A. 468
• 1913 Del. LEXIS 46

Syllabus

<p>1. Pleading—Demurrer—Determination.</p> <p>On demurrer to a pro-narr. setting up an action in assumpsit in one count and an action in covenant in another count, it must be presumed that they are based upon separate causes of action, as an action in assumpsit and an action in covenant will not lie indifferently to the same cause of action.</p> <p>2. Justices of the Peace—Appeal—Review—Scope and Extent.</p> <p>Upon appeal from a justice of the peace to the Superior Court, only the same cause of action that was decided below will be retried; and though it may be stated in different ways in different counts of the pleadings in the Superior Court, a cause of action that was not tried below cannot be tried on appeal.</p> <p>3. Justices of the Peace—Appeal—Review—Trial of Cause Anew— , Pleading.</p> <p>On appeal from a justice of the peace to the Superior Court, the identity of the cause of action tried below with that alleged in the pleadings in the Superior Court should be disclosed thereby; and where only one cause of action was tried below, and the pro-narr. contains counts in both assumpsit and covenant, a demurrer thereto will be sustained, since it cannot be determined which cause of action was tried below.</p>