Williams v. Bramble

Tuck, J., delivered the opinion of this court. The appellee sued the appellant in an action on the case. The declaration contained a count in trover, and one de bonis asportatis; both relating to the same property. On the pleas of non cul. and issue, the jury found for the plaintiff.

The defendant moved in arrest of judgment. This appeal is taken from the judgment of the court below overruling that motion. The only question before us is, whether there is such a misjoinder of counts as is fatal on this motion. The cases are numerous, both in this country and in England, and so conflicting that it is impossible to reconcile or deduce any certain rule from them.

In Chifty’s Pleading, vol. 1, PI. 200, (Joinder of Actions,) it is said, “In actions in form ex delicto, several distinct trespasses may be joined in the same declaration in trespass. And several causes of action in case may be joined with trover; thus, cose against a common carrier for losing goods; or a count for immodeiately riding a horse; or for disturbing plaintiff in his right of common; or for hindering him from landing goods upon a yard of defendant, contrary to agreement; or for not returning to plaintiff a dog delivered to tire defendant, to be fried and returned in a reasonable time, but keeping and detaining him from the plaintiff; may be joined in one action with a count in trover. And in a declaration in trespass, the plaintiff may unite a count for the battery or seduction of his servant, per quod servitium amisit, with a count for battery of the plaintiff himself, or qua-re clausum fregit, or trespass or rescue; and all these counts might be included in one declaration, though the loss of serví-' ces, and the consequence of the rescue, might be made the subjects of an action on the case.” For this, apparently in ³¹⁸ consistent, union of grievances in the same suit, he states the following rule, as the result of the authorities, (page 200.) “When the same plea may be pleaded, and the same judgment given on all the counts; or whenever the counts are of the same nature, and the same judgment is to be given on them all, though the pleas be different, as in the case of debt on bond or on simple contract, they may be joined.” Mr. Justice Buller, in Brown vs. Dixon, 1 Term Rep., 273, says, “itis universally true that whenever the same plea may be pleaded, and the same judgment given on two counts, they may be joined in the same declaration.” This rule, however, is not free from objection, in the opinion of Mr. Tidd, (1 vol. 10.,) who states some cases in which it could not be applied; and suggests the nature of the cause of action as the most certain criterion. And hence, he concludes, that, with certain exceptions stated by himself, “it may safely be laid down, as a general rule, that whenever the causes of action are of the same nature, and may properly be the subject of counts in the same species of action, they maybe joined, otherwise they cannot.” This, we think,