Winnie v. Pond

Carpenter, J. Only one of the questions presented by the record in this case is now relied on by the defendant. He [393] claims that the first countin the declaration is in trespass quare clausum, and that the second is in case for a malicious prosecution. If lie takes a correct view of the -declaration there would seem to be force in this- claim. But the injury of which the plaintiffs complain is the same in both counts, to wit, breaking, entering and injuring their dwelling house, by ■ means of which they and their families were greatly annoyed and disturbed in the peaceful possession and occupation of the house. The first count is in trespass,"and in the ordinary form. The second is in case, and substantially alleges., the doing of the same acts, under color of legal proceedings; that the defendant without reasonable or probable cause wrongfully prayed out a search warrant against one French, who resided in the house, and by means thereof caused the house to be searched, thereby causing the injury complained of. If however there was any doubt as to the intention of the pleader, it would seem to be removed by the averment in the second count, that it was “ for the same cause of action as in said first count contained.” This averment is not repugnant to anything else contained in the declaration and must be regarded as decisive of-the question. Havens v. Hartford & New Haven R. R. Co., 26 Conn., 225. There is no error in the judgment complained of. In this opinion the other judges concurred.