Barr v. White

BáRTOl, J., delivered the opinion of this'Court. This action was instituted by the appellants. The declaration contains four count's. The first alleges, “that the defendant converted to his own use, and wrongfully deprived the said Caroline of the use and possession of her goods; that is to say,” &c.

The second, “That the defendant wrongfully and unlawfully broke into and entered upon the premises of the said plaintiffs, and seized and carried away the goods and chattels of the said Caroline,” &c., “and other wrongs thus and there did, to the great damage of the said Caroline.” The third alleges, “that the defendant, as constable, under and by virtue of certain writs of fieri facias, to him directed, and issued upon judgments against Lewis K. Barr, for debts contracted by him, did wrongfully and unlawfully seize and carry away the goods and chattels of the said Caroline, belonging to and acquired by her, by virtue of the provisions of the Act of Assembly passed January 24th 1853, chapter 245,” &c. The fourth alleges, “that the defendant wrongfully and unlawfully seized and carried away the goods and chattels of the said Caroline, belonging to her in her own right, and to her sole and separate use,” &c. To this declaration the defendant demurred, and for causes, assigned a misjoinder of actions and of parties. The demurrer was sustained by the Circuit Court, and judgment rendered for the defendant. ²⁶⁵ ■ The Act of 1856, ch. 112, sec. 33, provides: “That causes of action of whatsoever kind, provided they be by and against the same parties, and in the same rights, may be joined in the same suit, but this shall not extend to replevin or ejectment.” Under the comprehensive provisions of this Act, no objection can be made to the deflation on account of misjoinder of actions; the first count is in trover, and the other three in trespass, which, under the Act of 1856, may be well joined in the same action.

It is contended that there is a misjoinder of parties, in this: that the wife is improperly joined in the first three counts, and the husband in the fourth count. We do not discover that the rules of law with reference to the joinder of parties, were materially changed by the Act of 1856, so as to affect this case. The ancient rules of pleading, recognized and established by the Courts in England and in this State, are therefore to govern as to the decision of the questions here presented, except in so far as they are controlled in their application to a particular case, by the changes in the rights of property in the marital relation effected by our Acts of Assembly. With this general proposition in view, we proceed to examine the several counts in this declaration.

There is misjoinder of the wife in the first count, because it is not stated what interest she has in the property. In the absence of such statement, the chattels are the husband’s, jure mariti, and he must sue alone. The very case is put by Ghitty in his Pleadings, 1 vol., Td-lS, quoted in the appellee’s brief. See also, 1 H. & G., 139 , and 4 Md. Rep., 435 .

The second count is bad for the same reason.