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. The third count presents a different question, that is brought to obtain the protection of the wife’s property from the husband’s creditors, secured by the Act of 1853, ch. 245. We see no reason why the wife is not properly joined in the action; she' is certainly the meritorious [266] cause of .action, and that is the test of the common law rule. 1 Ch: PI., 30. Being within the reason of the rule, the case is within the rule. In speaking of the remedy in such cases as this, in Bridges & Woods vs. McKenna, this Court said: “The legal title being in him, (the husband,) that title must be asserted in Courts of law by him either alone or jointly with her, (the wife,) where by the pre-existing law, such joinder was necessary.” 14 Md. Rep., 269. In our opinion there is no misjoinder in the third count. The fourth count is in trespass, and alleges the property to belong to the wife to her sole and separate use. . To that count it is objected that the husband is improperly joined, and the wife must sue alone; and the language of this Court in Bridges & Woods vs. McKenna is cited in support of the objection. We said, “in such case the wife may sue at law as a feme sole,” but by no means intended that the husband might not join in the action, although not necessary for him to be joined according to our construction of the Act of 1853. The conclusion from what has been said, is: That in our opinion, the first and second counts of the declaration are bad, and the third and fourth counts are good. We have now to determine the effect of this ruling. The appellee maintains, that the'demurrer being to the whole declaration, if ■ there be any misjoinder of parties, was properly sustained, and the entire declaration adjudged bad, and in support of this position has cited 1 Ch. PI., 205, 206, and the cases there referred to. But the learned author is treating in that place, of the consequences of. a misjoinder of actions. The authority does not apply to this case, instituted under the Act of 1856, which allows causes of actions of different kinds to be joined in the same suit. The same author, on page 33 says, “and if she, (the wife,) improperly join in an action with her husband, who ought to sue alone, the defendant [267] may demur.” But it is not stated that if in such case there be one good count, a demurrer to the whole declaration would be sustained. It is very obvious that s,lich cannot be the effect in this case; for each count sets out a distinct and independent cause of action, different in kind from the others, and under the Act of 1856, c.h. 112, sec. 33, the Court was authorized to prevent the trial of the different causes of action together, and direct separate cases to be docketed, and separate trials to be had. In dealing with the demurrer, therefore, we must treat the several counts, in some measure, as if they were distinct suits, and though some of them be ruled insufficient upon demurrer, the whole declaration cannot be adjudged bad. The rules stated in Oh. PL, 665, are more applicable to such a case as this. (Decided November 16th 1864.) Judgment reversed and procedendo ordered.