Black v. Howard

The opinion of the court was delivered by Barrett, J. The plea is to the whole declaration, and professes to answer the whole. Though in itself defective, if the declaration as a whole is defective, so as to be the subject of general demurrer, then the demurrer to the plea would be fatal to the declaration. ■ It is conceded that the first and second counts of the declaration are good in law ; but it is claimed that the third count is not good for substance. Assuming it to be as claimed, the mere defectiveness of that count would not cause the joinder of it with the other counts to render the declaration, as a whole, subject to general demurrer, not even at [30] common law. Sucb joinder could have such effect only in case that third count was for a cause of action that could not be joined with the other counts. The demurrable defect would be misjoinder of causes of action, not joining with good counts a defective count for the same, or a joinable cause of action. In order to reach the defect, the demurrer must be directed to such defective count. It hence follows, that the question upon which this case is to be decided, is, whether there is a fatal misjoinder of counts. That would be so at common law, whether the counts be or be not for the same cause of action in fact. But, by our statute, that rule of the common law is modified, and such joinder as in this case is permitted, provided the counts be for the same cause of action. We are satisfied that the third count was meant to cover and embrace the cause of action meant to be covered and embraced by the first two counts. This being so, the only course for the defendant, in order to raise and save question as to the legal quality of the general verdict upon all the counts, as the ground of a judgment, was to have moved in arrest of judgment. But this neither he nor his counsel bethought themselves to do. Or if they did, they probably appreciated our statute of 1865 in that behalf, and so cast the result on what might be made out of the sham plea and the demurrer to it. Judgment for plaintiff affirmed.