22 Wend. 369 | Court for the Trial of Impeachments and Correction of Errors | 1839
After advisement, the following opinions were delivered :
The assignment for error, that no such verdict was given as stated in the record, no diminution being alleged, was not admitted by the joinder in error; it being an assignment against the record itself.
There can be no doubt that there was a misjoinder of counts; for covenant cannot be joined in the same declaration with assumpsit. The cases on the subject of the joinder of different causes of action are so numerous, and at times so conflicting, that it is difficult to find any general rule which is applicable to all of them. I think, however, I may safely say that if the causes of action are of the same nature, admit of the same pleas, and the same judgment would have beeen entered thereon at the common law, they may be joined; and there are some cases in which they may be joined although they do not admit of the same plea, as in the case of debt upon bond, and debt upon judgment or upon a mutuatus. There is also one anomalous case, in which it is held there may be a joinder of debt and detinue, although these two causes of action require different judgments. Bacon states the reason why these may be joined
There is a class of cases in which a misjoinder of different causes of action, and the assessment of general damages thereon, must necessarily produce an erroneous judg-t ment, so as to deprive the defendant of some substantial right; such are the cases of a joinder in a suit against a husband and a wife, of a count for a debt due from the wife while sole, with a count for a debt contracted during coverture, for which she could not be legally liable $ and the joinder of a count.against an executor or administrator for a debt due from the decedent, with .a count for a debt due from the defendant personally. But in a case where the judgment is right as to all the counts, or would have been so if the recovery had been in separate suits, I bad supposed, until I found otherwise upon examination, that the broad language of the first section of the statute 16 and 17 Charles II. ch. 8, to prevent arrests of judgments, «fee., which is incorporated into our revised statutes, as well as into the revision of 1813, would have protected the plaintiff after verdiet. 1 regret that I am obliged to say, however, that the law appears to have been settled otherwise, not only in our own courts, but also the courts of England, both before and since the revolution. Had I found only the single case of Cooper v. Bissell, 16 Johns. R. 146, I should not have hesitated to have said of it, as Lord Ellenborough said of the case of Bage v. Brownell, 3 Lev. 99, “ that case has had its day, and it is time it should cease.” See Kightly v. Birch, 3 Maule & Sel. 533.
The case of Mathews v. Hopping, the carrier of Tiverton, decided in 1665, cited by the counsel in Denison v. Ralphson, 1 Ventris, 365, as a case sustaining the principle
The judgment obtained in the New-York common pleas upon verdict was reversed by the supreme court, on the rigid technical rule that counts in covenant cannot be joined with counts in assumpsit, and that such a misjoinder of counts may be taken advantage of on a writ of error, as well as on demurrer. The English books of pleading and practice are strong to this point; so, too, are many formerly adjudged English cases. It was also so decided, though quite reluctantly, and with expressions of regret, by our own supreme court before the revision of the statutes. 16 Johns. R. 146. In this appellate court, it has never been adjudicated in any way, or even formally recognized ; and accordingly, especially since the revision of our statute law, may be considered as here an open question.
1 am decidedly of opinion that the case of misjoinder of counts, whereby (to use the language of our statute) “ neither party has been prejudiced, and no result has been produced against the right and justice of the matter of the suit,” is within the provisions of our lately revised law “for amending pleadings and proceedings.” It is there enacted, that “ when a verdict shall have been rendered in any cause,
Let us look at the subject in another light. Mispleading, according to its etymology and natural meaning, means pleading amiss, or pleading wrongly. This is the well known familiar use and derivation of the word. But in so technical a point, and arguing against high technical authorities, I will not rest my interpretation upon the known use and etymology of untechnical words. I go to authority, and take the definition of one of the oldest and best expounders of legal phraseology: íC Mis. (CoweFs Interpreter.) This syllable, added to another word, signifies some fault
The statute of William IV., under which the judges have remodelled the pleadings and practice, authorizes the judges “ to make such alterations in the mode of pleading, and in the mode of entering and transcribing pleadings,” as may be necessary for the objects of the act. Under this authority, the whole body of English judges have formed their “ new rules of pleading.” The 5th of these rules is wholly confined to regulating in detail what counts in pleading may be allowed to stand together: and what not, in other words, what counts may be joined, and when a plaintiff shall be confined to a single plea. See Bosanquet’s ed. of The New Buies. Such is the unanimous understanding of the word pleading among the present English judges, shewing that a contravention of their fifth rule, by mis-joining c.ounts, would be considering a mis-pleading. In this sense the action of the judges under the statute, is understood by Mr. Chitty who says: “Under the authority of the act of William IV., which enabled the judges to promulgate rules affecting pleadings, several very important rules relating to declarations and pleadings have been made.” 3 Chitty's Prac. 454. Why should we be behind the judges of England in discarding cumbrous, technical difficulties and ab
I would not venture to disturb decisions of equal authori-' ty with those which support the supreme court decision, where they go to establish any rule of property, or to regulate personal rights, although I should judge them to be founded upon arbitrary or artificial reasons. Such decisions enter largely into the concerns of men. They become inter-, woven with the whole body of the law, and are silently recognized in the mangement of affairs, by citizens of all classes, as well as by lawyers and courts. Not so with a pure formal question of pleading. The overruling prior decisions on such a point, when the substantial ends of justice are thereby promoted, can influence no other question save those of legal form.
This is a new question in the highest tribunal of this state. It now arises under a statute not new in its objects, but re-enacted here recently with enlarged provisions and in “ language,” as the revisers said, intended to rescue those provisions from the verbiage in which they were enveloped ;
The supreme court appear not to have noticed.the other ground on which the reversal of the original judgment below, was maintained before us ; I presume that it was considered wholly untenable. The books shew that it is so. The position is- that the plaintiff in error in the supreme court having specially assigned as error, that the issues never were tried as set forth in the record, and the defendant having by his joinder in error confessed the fact, the record and proceedings of the common pleas must therefore be allowed to be erroneous, although in fact the issues were joined and the verdict found. But the authorities read thus:—
Substantial justice between the parties appears to have been done in the court where the cause was tried. The two very artificial reasons for reversal are of a character never entitled to peculiar favor; and seem to me quite insufficient—the one last considered because it is against all ancient and modern authority; the other as against the equity and policy of our revised statutes. I shall accordingly vote for reversing the judgment of the supreme court.
On the question being put, shall this judgment he reversed? the members oT the court divided as follows:
In the affirmative: The President of the Senate, and Senators Beardsley, Dickinson, Furman, Hawkins, Hull, Hunt, Huntington, Johnson, H. A. Livingston, Maynard, Moseley, Nicholas, Peck, Skinner, Sterling, Verplancic —17.
In the negative : The Chancellor, and Senators Paige, Sraker, Wager—4.
Whereupon the judgment of the supreme court was reversed, and the judgment of the common pleas affirmed.