82 Va. 501 | Va. | 1886
^delivered the opinion of the court.
This was an action on the case brought by said R. G. Church, plaintiff, against said Mary J. McMullin and ¥m. A. Richmond jointly, and the only issue was on the joint plea of the defendants of “not guilty.” The declaration contained five counts. The defendant demurred to the whole declaration and to each count thereof. But the court sustained the demurrer as to the second count only, and overruled it as to the declaration as a whole, and to the first, third, fourth, and fifth counts; and this ruling, except as to said second count, is assigned as error.
As to the first and third counts, though in some respects inartificially drawn, and not as concise in statement as might be desired, it is sufficient to say, in the view taken of the démurrer in other respects, they would upon mere general demurrer be held substantially good. These are both counts-jointly against the plaintiff in error, Mary J. McMullin and ¥m. A. Richmond, the action itself being against them jointly; and the gravamen of each of these counts is that the said defendants, Mary J. McMullin and ¥m. A. Richmond, falsely and maliciously, without probable cause therefor, caused and procured the attachment, the proceedings on which are set out in each of them, to be sued and levied upon the property of the said plaintiff, R. G. Church, to his damage, &c.
The fourth and fifth are several counts against Mary J. McMullen and ¥m. A. Richmond, respectively, for the same offence, and not against them jointly. The first of these several counts (the 4th in the declaration), charges that the defendant, Mary J. McMullin, falsely, maliciously and without
Without pausing to enquire whether either of these several counts is sufficient in itself, we proceed to examine and pass upon the main question raised by the demurrer, which, as we have seen, was a demurrer to the whole declaration, and to each count thereof. The ground of demurrer is that these several - counts cannot be joined in the same declaration with the joint counts therein, the action being against two defendants jointly for the same cause of action. If this objection is well taken, it goes to and invalidates the whole declaration. The alleged cause of action here belongs to that class of torts which, in legal consideration, may be committed by several,
In discussing the subject of joinder of actions, the same author says: “When the plaintiff has two causes of action, which may be joined in one action, he ought to bring one action only; and if he commence two actions, he may be compelled to consolidate them, and to pay the costs of the application.” And he adds: “The joinder in action often depends on the form of the action, rather than on the subject matter or cause of action: thus, in an action against a carrier for the loss of
Having laid down the general rule as to the joinder of persons and of actions, the learned author next proceeds to lay down the rule with respect to “the joinder of several rights of action, or liabilities,” and says: “When the same form of action may he adopted for several distinct injuries, the plaintiff may, in general, proceed for all in one action, though the several rights affected were derived from different titles; but a person cannot, in the same action, join a demand in his own right, and a demand. as representative of another, or in autre droit; nor demands against a person on his own liability, and on his liability in his representative capacity.” And then coming directly to the rule applicable to the case in hand, the author says: “In actions by and against several persons, whether ex contractu or ex delicto, all the causes of action must be stated to be joint. Thus a plaintiff cannot, in a declaration against two defendants, state that one of them assaulted him, and in another part that the other assaulted him, or took his goods, for the'trespasses are of several natures, and against several persons, and they cannot plead to this declaration.” Ib. 225.
In the application of these principles to the case in hand, it must be kept in mind that there is no question here as to the
In view of the rule above laid down, they clearly cannot be so joined. The tort complained of, though it may have been participated in by both of the defendants, is treated by the law as the several act of each, and the plaintiff might have sued one only of them; but he elected to sue them both jointly, and having so elected, he was bound to declare against them jointly in each count in the declaration; for otherwise, as in the example given by Mr. Chitty, supra, it is obvious that the defendants could not, either together or separately, plead to the declaration.
We are, therefore, clearly of opinion that the circuit court erred in overruling the demurrer to the whole declaration, and to each count thereof.
Such being the conclusion arrived at as to the questions raised by the demurrer, it becomes unnecessary to pass upon other questions presented by the record. But upon the merits the result would necessarily be the same. We are, therefore, of opinion to reverse the judgment of the court below, and enter such judgment here as ought to have been entered by that court.
Judgment reversed.