73 N.J.L. 279 | N.J. | 1906
The opinion of the court was delivered by
This was an action of replevin. After issue joined, the plaintiff applied for and. was granted leave to amend by inserting counts in trover. To the whole declaration as amended, the defendant demurred for misjoinder of causes of action. The plaintiff thereupon gave notice of a motion to strike out the demurrer as irregular and defective, and so framed as to prejudice, embarrass and delay a fair
The order was erroneous. There was a misjoinder of causes of action. The object of a suit in replevin is to recover the specific property; of a suit in trover, to recover damages for the conversion. The pleas and the subsequent proceedings are altogether different. Such an objection is available upon a demurrer to the whole declaration. Green v. Morris and Essex Railroad Co., 4 Zab. 486; American Linen Thread Co. v. Sheldon, 2 Vroom 420; Dale Manufacturing Co. v. Grant, 5 Id. 138; McDermott v. Morris Canal and Banking Co., 9 Id. 53; Wilkins v. Standard Oil Co., 42 Id. 399.
An attempt was made to cure this difficulty at the trial by abandoning the count in replevin. It was too late after a demurrer for misjoinder. 1 Chit. Pl. (14th Am. ed.) 206; Drummond v. Dorant, 4 T. R. 360.
The insuperable difficulty in the way of the plaintiff was that his action was in replevin. It would be incongruous to seek to recover in the same suit the specific property and also damages for the conversion, satisfaction of which would pass the title to the defendant. Singer Manufacturing Co. v. Skillman, 23 Vroom 263.
The seventeenth rule of this court expressly excepts the action of replevin from those actions ex delicto which are now styled actions of tort. In an action of replevin, counts in trover would be bad on demurrer. The New Jersey cases in point are cited in Wilkins v. Standard Oil Co., 42 Vroom 399.
The judgment must he reversed. Judgment should be entered for the defendant upon the demurrer unless this court allows the plaintiff to amend.