Hotchkiss v. Butler

| Conn. | Jul 15, 1847

Stoers, J.

Conceding that the declaration in this case, which contains only one count, alleges an ouster of several distinct pieces of land, the question is, whether it is, on that account, bad for duplicity.

The plaintiffs in error insist, that the general rule of pleading, that each count in a declaration must contain only one cause of action, is applicable to our action of ejectment, and that, under that rule, this declaration is objectionable.

This principle undoubtedly applies to most actions ; but a defect of this description is always deemed to be one of mere form ; and there has evidently been, for a long time, a disposition in the courts to relax the rule. Indeed, exceptions to it, ⅛ several actions, have been made in modern times, as is obvious from the usual mode of declaring, now universally sanctioned, in trespass quare clausum f regit, with a diversis diebus et vicibus, and also in general indebitatus assumpsit; in each of which several distinct causes of action may be embraced in one count. 1 Saund. R. 24. n. 1. 1 Chitt. Plead. 258. 393, 4. (9th Am. ed.) Main v. First School District &c. of Preston, 18 Conn. R. 214.

We have not considered it necessary to enquire, whether) according to the usual application of the general rule to ordinary actions, this declaration would be obnoxious to the charge of duplicity ; because we are of opinion, that an objection, on that ground, to a count in an action of ejectment, ought not to be sustained.

The action of ejectment in this state was devised, at a very early period of its settlement, as a simple, direct, comprehensive, and, it may be added, rational remedy, to enable a person entitled to the possession of land, in all cases, to recover it from him who withholds it; and was designed to supersede and get rid of the complication, technicalities and fictions of the real actions and the action of ejectment, which were in use in England, with their consequent delay and expense; and it has been found to be admirably adapted to that purpose. We are, therefore, at liberty, and are disposed, to preserve it, as it has hitherto been, in all its original simplicity, and not to introduce, without necessity, innovations in the practice with regard to it. As far as we can ascertain, it has been the invariable practice, in this action, down to a very recent period, to unite several and distinct parcels of land in the same count; and no instance of several counts is to be found until within a very few years, when, undoubtedly from abundant caution merely, they have occasionally been introduced. No inconvenience has resulted from the ancient practice ; nor can any be foreseen, especially, when it is considered, that duplicity in all other actions is deemed to be merely a formal defect, to be taken advantage of only by a special demurrer; and that it does not, on the trial, interfere, in any degree, with thejus-tifce of the case. We think, that the multiplication of counts in this action, would be a novelty in practice, attended with no advantages, which, although there may be no legal objection to it, we are not called upon to encourage.

There is, therefore, no error in the judgment complained of.

In this opinion the other Judges concurred.

Judgment affirmed.