Joinder of actions in same right. there is, at least, this exception to its application, namely: the action of trespass and case cannot be joined, although the same plea of not guilty may be pleaded, and the same judgment given.6 A count on warranty, on the sale of a horse, and a count in assumpsit, may be joined. So, case for slander, and malicious prosecution, may be joined. But causes of action of different natures, as tort and contract,8 debt and trespass, deceit and assumpsit,10 trespass and trover,11 cannot be joined. But several causes of action in case may be joined with trover,12 as trover, and case for words,13 or trover, and case for the abuse of a horse.14 3. Joinder of actions, as respects the right in which they are brought. It is well settled, that causes arising in different rights, cannot be joined in the same action.15 Thus, a count on a promise by husband and wife, cannot be joined with a count by the wife dum sola;16 nor can trespass by husband, for the battery of both,17 nor trespass for a personal injury to the wife, and a cause of action for which the husband alone might sue, as the loss of her company;18 nor can trespass for the goods of the wife taken before coverture, and the goods of the husband taken afterwards,19 be joined in the same action. So, a man cannot join an action in his own right, and as executor or administrator,19 nor can he have an action against another to charge him as executor or administrator, and also in his own right, the judgment in the one case being de bonis testatoris, and in the other, de bonis propriis.20 As to the joinder of counts by executor or administrator, plaintiff, the rule is, that they may be joined, provided the money, when recovered, will be assets in their hands.21 But an executor must declare in his own right, for money, which, having been paid since the death, he is entitled to recover back;22 so, on a bond given to him as such;23 and therefore cannot join such causes with others in his representative character. And, inasmuch as the describing the plaintiff to be executor, is no averment that the causes accrued to him as executor, a count on an account stated with plaintiff executor, not saying as executor, is misjoined with counts on promises to the testator.24 With respect to the joinder of counts against an executor defendant, he may be sued as such, on an account stated by him in that character, of money due from the testator.25 So, (6) 2 Burr. 1114; but see 16 Johns. 146. (7) 2 Caines, 216. (8) 11 Johns. 479. (9) 1 Salk. 10; 3 Salk. 204, (10) 1 Johns. 503. (11) 16 Johns. 146. (12) 1 T. R. 277; 3 Wils. 343. (13) 2 Dougl. 677. (14) Cro. Car. 20. (15) 3 T. R. 433. (16) 16 Johns. 221. (17) Com. Dig. Action G. 3. (18) 18 Johns. 443. (19) Com. Dig. Action G. 3. (20) 2 Lev. 228. (21) 1 Taunt. 322; 2 Marsh. 147; 1 Eng. C. L. Rep. 446; see post, Chap. 4, §I, 14. (22) 4 T. R. 561; 2 T. R. 476; 5 Ohio Rep. 536. (23) 3 B. & P. 7. See post, Chap. 4, §I, 14. (21) 5 East. 150; vide 5 Wendell 36; 7 Ohio Rep. (Part 1,) 268. (25) 1 H. Bl. 102; 6 Ohio Rep. 92. How misjoinder taken advantage of. he may be charged as such, for breaches of covenant, by one to whom the premises have been assigned since the death;25 and, with these causes, therefore, may be joined others accruing from the testator: but not a count on an account stated by him, of moneys due from himself as such,26 or for money had and received by him,27 or lent to him in that character.26 Nor can counts on promises from an intestate, and on a promise from the administrator, upon a consideration accruing after the intestate's death, be joined in the same action.29 This rule does not apply to causes of action against a defendant in his own right, and as surviving partner, which may be joined, and it is not even necessary, in declaring, to distinguish them, they being recoverable, as we have before seen, against the survivor individually.30 A demand, therefore, due to the plaintiff, as surviving partner of one firm, may be joined in the same action with a demand due to him, as the surviving partner of another firm,31 or due to himself in his own right.32 4. How misjoinder taken advantage of. By the common law, a misjoinder of counts is a defect in substance, and may be taken advantage of by general demurrer, motion in arrest of judgment, or writ of error. Whether, under the statutes of Ohio, a motion in arrest of judgment, or a writ of error, will not reach a misjoinder of counts, may, perhaps, admit of doubt.33 Whatever may be the decision under the statutes of Ohio, in regard to the allowance of a writ of error, or the arrest of the judgment, where the counts are inconsistent, it is clear that the misjoinder may be objected to by a general demurrer. The demurrer must be to the whole declaration; and the defendant cannot plead to one count, and demur to the other, because the latter is inconsistent with the one to which he has pleaded.34 The plaintiff cannot cure the defect by entering a nolle prosequi to a part of the declaration.35 But after ver (25) 10 East. 313. (26) 1 H. B. 108. (27) 4 T. R. 347. (29) 12 Johns. 349; 7 Cowen, 58. (30) 1 B. & Ald. 29. (31) 9 Pick. 533. (32) Colly., Part. 399. 436. (33) The statute provides, that "in suits where there are several counts in the declaration, some of which are bad or defective, and the residue good, and the jury shall return a general verdict for the plaintiff, it shall be lawful for the court to give judgment on such good counts, to which the evidence on the trial was applicable, and either before or after motion in arrest of judgment, to strike out such defective counts; and whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on acccount of such defective counts." Stat. 688, §142. Probably this pro vision of the statute is not applicable to misjoinder of counts; for, there is an evident distinction between a count being good and perfect, but inconsistent with other counts, and a count intrinsically bad and defective. See post p. 32, note 39. The act of March 12, 1844, (42 Stat. 72,) provides, that a judgment shall not be arrested, or writ of error allowed, "on account of any objection to the form of action in which the plaintiff may have declared, or on account of any technical objection to the declaration, or other part of the pleadings, in case the facts are substantially alledged, which the party was bound to prove on the trial, in order to entitle him to a recovery." Whether this provision of the statute is applicable to misjoinder of counts, must be left to the adjudication of the courts to determine. (34) 15 Wend. 184. (35) 1 H. Bla. 108, 4 T. R. 360; 19 Wend. 627. Splitting causes of action. dict, if the defect is not cured by the statute of March 12, 1844,36 and no evidence has been given on some of the counts, and the verdict has been taken generally, the court may give judgment on the count to which the evidence on the trial was applicable, and, either before or after motion in arrest of judgment, strike out the other count, and thereby remove the objections to the misjoinder.37 When, however, the evidence on the trial is applicable to two or more inconsistent counts, and there is a general verdict, it may be doubted whether the court can, even under our statute, in regard to bad or defective counts,38 render a judgment, and strike out the counts so as to remove the objection to the misjoinder.39 But it is immaterial whether they can do so or not, if the act of March 12, 1844, before referred to,40 cures the defect. SEC. II. SPLITTING OF ACTIONS. Where a party has one entire claim or demand, arising out of a single transaction, whether in the nature of contract or of tort, he cannot divide it into separate and distinct claims, and bring an action for each; and if he attempt so to do, a recovery in the first suit, though for less than his whole demand, is a bar to the second.41 Thus, when there is an entire contract for the sale of goods, the vendor cannot maintain an action for one part of the goods sold, and another action for another part.42 So, where there has been a trespass or conversion by one single indivisable act, in relation to several chattels, the plaintiff cannot split up his claim for damages by bringing separate actions of trespass or trover, for each particular article seized or converted.43 A running account for goods sold, and delivered, all due, is held in New York to be an entire demand, incapable of being split up for the purpose of bringing separate suits; and therefore, where a creditor split up an account into two parts, brought a suit for one part, and was defeated, and subsequently brought another suit for the residue of his account, on a plea of the former suit, it was held that the plea was a good bar, and the plaintiff not entitled to recover.44 (36) 42 Stat. 72, §2; See ante p. 31, note 33. (37) 18 Eng. C. L. Rep. 183, note; 19 Wend. 627; 1 Doug. 376; 1 B. & P. 230; Stat. 688, §142. (33) Stat. 688, §142; ante, p. 31, n. 33. (39) The case of Lusk v. Hastings, 19 Wend. 627, was this : The declaration contained counts in trespass and in case; and the evidence on the trial was applicable to both counts. There was a general verdict, a motion in arrest of judgment by defendant, and a motion by the plaintiff for leave to strike out one of the inconsistent counts, and apply the judgment to the other count. The motion for leave to strike out was denied, and NELSON, Ch. J., says: This case is not like one where the counts are consistent, although some be bad. In such case, if it appear that the evi dence was applicable to the good as well as to the bad counts, there can be no harm in sustaining the verdict, though general. The good count is enough to warrant it; but, in the case of inconsistent counts, we cannot but say that the verdict is compounded of damages under all the counts. Each class of counts is good, though inconsistent, and the jury may have taken into the estimate, evidence that might support distinct and different actions." (40) See ante, p. 31, note 33. (41) 4 McCord, 20; 15 Johns. 229; 16 Johns. 121, 136; 8 Wend. 492; 15 Wend. 557; 1 Wend. 487. (42) 15 Johns. 229; 16 Johns. 121. 136; 1 Wend. 487. (43) 15 Johns. 432; 6 Rand. 457. Splitting causes of action. But, in Massachusetts, a more reasonable rule is adopted, that a running accoun for goods sold and delivered, money loaned, or money had and received, at different times, will not constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing, from which such an agreement or understanding may be inferred.45 Where judgment was obtained against the second indorser of a note, and he paid a part of the judgment, and then sued, and recovered from the first indorser the amount paid, in an action for money paid, laid out and expended, and the second indorser afterwards paid the whole amount of the judgment against him, and again sued the first indorser for the money last paid, in an action for money paid, laid out and expended, it was held that the second action well lay.46 With respect to instalments of money due at successive days under the same contract, this difference is taken: that if the action be debt, it must be brought for the whole;47 but if it be covenant or assumpsit, the action may be for each successive instalment, as it falls due.48 And so, as to any other breaches of several distinct covenants or promises contained in the same contract, an action may be brought for each successive breach, before the subsequent breaches are committed. But when there are breaches of several and distinct covenants contained in the same instrument, and a suit is brought, claiming damages for some of the breaches, it seems, a subsequent action cannot be brought for breaches which had accrued at the time of bringing the first action.49 (49) 19 Wend. 207, and cases there cited. CowEN, J., says, in relation to the general rule, that causes of action cannot be slit: "The rule does not extend to several and distinct trespasses or other wrongs, nor to distinct contracts. It goes against several actions for the same wrong, and against several actions on the same contract. All damages accruing from a single wrong, though at different times, make but one cause of action; and all debts or demands already due by the same contract, make one entire cause of action." 5 CHAPTER IV. PARTIES TO ACTIONS, IN FORM EX CONTRACTU. SECTION I. II. PLAINTIFFS. 1. General rule as to Plaintiffs. 2. Assignee of choses in action. 3. On Deeds inter partes. 4. On Deeds poll. 5. On Bonds. 6. On simple contracts. 7. Number of plaintiff's, and when to join or sever. 8. Partners. 9. Tenants in common, parceners, &c. 10. When obligees, partners, &c., are dead. 11. Principal and Agent. 12. Against carriers. 13. Covenants relating to real estate and running with land. 14. Executors, administators, heirs, &c. 15. Husband and wife. 16. Parent and child-Infants. 17. Corporations. 18. When plaintiff and defendant are both legally interested. 19. How and when the defendant can object on account of an omission or mistake, or misjoinder of plaintiffs, in actions ex contractu. DEFENDANTS. 1. General rule as to defendants. 2. Joint, and joint and several contracts, and partners. 3. Principal and Agent. 4. Executors, administrators, heirs, &c. 5. Husband and wife. 6. Parent and child-Infants. 7. Where there has been an assignment of liability or change of credit. 8. Covenants running with land. 9. How and when the defendant can object on account of an omission or mistake, or misjoinder of defendants, in actions ex con tractu. |