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, leaves the question unsettled; because, when it is ascertained that the causes of action are of the same nature, we must still inquire whether they may be joined; for the solution of which difficulty his rule furnishes no certain guide. The question is purely technical, and has been so regarded by eminent judges, who have expressed regret that such distinctions existed, though they yielded to the force of authority. Grant vs. Astel, 2 Doug., 730. Cooper vs. Bissell, 16 Johns., 146. Lovett vs. Pell, 22 Wend., 372. And Lord Ellenborough, in Kightly vs. Birch, 2 M. & S., 533, speaking of Bage vs. Bromuel, 3 Lev., 99, in which a similar rule had been enforced, said, “that case had had its day, and it was time it should cease.” The reason assigned why counts in trover and trespass cannot be joined, at common law, is, that the judgments are not the same. This is explained in Gould's Plead., ch. 4, secs. 38, 39. Every defendant on conviction, in a civil action, of a forcible wrong alleged to have been committed vi et armis, &.C., was obliged to pay a fine to the king, for the breach of [319] the peace implied in the act; and was subjected to the judgment of capiatur pro fine, under which he was liable to be arrested, and imprisoned until the fine was paid; whereas in trover the judgment is quod sit in misericordia. And this accounts for the suggestion of Mr. Chitty, (page 201,) that “these injuries, (meaning those that are consequential and the subjects of actions on the case,)' when joined with a count in trespass, should be stated to have been committed vi et armis.” Because otherwise, that the crown might not be defrauded of the fine, the defect would not be cured after verdict. In Maryland, however, we have no such proceeding to punish the implied breach of the peace, and for this reason, probably, that form of entering judgment in trespass has fallen into disuse. In Harris’ Entries, from which our records have been made up for more than half a century, we find no such precedent, but, on the contrary, that for judgment in trespass on verdict,-concludes like judgments in case, quod sit in misericordia, 6fc.,vol. 2, 149, 2 Ev. Har., 351, 352. The forms are the same. In the case before us the pleas to the two counts are the same, and the judgments being the same, according to our practice, the rule laid down by Justice Buller and Chitty applies. There is no necessity, on such a question, for adhering to a rule after the reason for its application has failed; especially in a case within the equity of the act of 1809, ch. 153, sec. 2, if not within its letter; a point, however, which we need not decide, though relied on by the appellee’s counsel. We do not express any opinion on the subject of variance between the writ and the count in trespass, from which inquiry, on this motion, we are precluded by the act of 1809, ch. 153; nor do we intimate what would be the effect of that objection if taken at an earlier stage of a cause. Judgment affirmed.