Oglesby v. Stodghill
23 Ga. 590
Ga.
1857
Check Treatment

By the Court. —

McDonald, J.

delivering the opinion.

The first assignment of error is, on the decision of the Court allowing plaintiff’s counsel to amend his declaration. A new count was added and it was objected, that it contained a new and distinct cause of action and it was not germain to the matter of the original declaration and incongruous therewith. No objection was made to the new count as to its sufficiency. The first and original count is trespass for entering plaintiff’s land and taking and carrying away plaintiff’s wheat, cotton, corn and fodder. The count introduced by way of amendment, is a kind of non-descript, for taking and carrying away the proceeds and profits of the same land for the same time. The parties are the same. It was insisted, in the argument of the cause, that the amendment was a count in covenant for a breach of the agreement given in evidence, and that it could not be joined with the count in trespass. The defendant in the agreement referred to, *594contracted to do but one thing, and that was, to make the plaintiff a deed to the land, upon the plaintiff’s “ delivering back” to him the negro and paying him four hundred dollars. The plaintiff averred the performance of the condition precedent which entitled him to a conveyance of the land, but he averred no breach of the agreement The averment is that he failed and 'refused to deliver the tract of land. The land was imder rent for the year, and the averment of the non-delivery of the land, is perfectly consistent with the literal performance of the agreement to make a deed for the land, especially as no livery of seisin is necessary here to perfect the conveyance. Both counts, the old and the new, are for taking and carrying away the products of the same land, for the same time, and to the plaintiff’s damage. The defendant filed but one plea, and that was not guilty. He went to trial on both counts on that issue. It applied equally to both counts. He was not guilty of the taking and carrying away. There was no issue on the new count, as to the defendant’s right to enter, take and carry away the profits of the land; the issue was on the taking and carrying away the proceeds and profits of the land. In this State, the judgment on the two counts would be the same. In England, according to the common law, the judgment in trespass is quod capiatur, and in case quodsit inmisericordia. 1. Chitty’s Plead. 231. And the writ of capias ad satisfaciendum, lay in actions of trespass vi et armis only. Tidd’s Pr. 993. Our judgments here are all-alike, with the exception of judgments in ejectment and trover, and the defendant is liable to be arrested on a ca. so., whether the action be for trespass, case, or assumpsit. The rule in England in respect to the pleadings in actions, ex delicto, for injuries committed with force and those committed without force, is pretty much technical, and formal, and inapplicable here, or at least, as presenting a barrier to the joinder of counts, under our system, when the cause at action is manifestly the same, and the plea and judgment must *595be the same. We will not undertake to characterize the new count under consideration in this case, further than to say it is not a count in covenant, and we abstain from doing so with the more propriety as the defendant’s counsel have not objected to its legal sufficiency to authorize a recovery, and have also, so far recognized it as a count in form ex delicto, as to allow his plea of not guilty to the original count to stand as the plea to that.

It is insisted that under the decisions of this Court the amendment made by the addition of the count, cannot be allowed. The case of Curshaw vs. Moore, is referred to. It would seem that the reasoning of the Court in that case would forbid it, but the case itself did not call for all the remarks that fell from the Court. The action in that case, as in this, was trespass. The plaintiff’s counsel moved to amend by adding a count in trover, which motion was refused. It is clear that the verdict and judgment in trespass and trover, according to the law as administered here, are different, and that was a sufficient reason for refusing the amendment in that case. The remark of the Court in the case of Walker et al. vs. Cook 17. Ga. 129, that “ the amendment offered must be, of course, a legal amendment, such an one as is admissible in the case,” is cited, and we recognize it as law. For the reasons assigned, we hold that this declaration was amendable by the addition of a count. The objection here is, not that the count is not a sufficient one, but that it cannot be joined with the original counts; that if it had been made a part of the declaration at first, it would have been a misjoinder. In the case of Neal vs. Robertson, 18. Ga. 399, the proposition was to add a new count in favor of other parties, or to make other persons parties plaintiff, who, the case, as reported, does not show, might or ought to have been made parties at first. The case of Williams vs. Hollis, 19. Ga. 313, does not support the principle urged by defendant’s counsel. The proposition then was to change the entire structure of the declaration, and to file a new declaration, *596giving a new aspect to the case throughout, setting forth a new cause of action, and the new count proposed did not admit of the plea made to tho first, and could not be supported by the same proof.

[2.] The Court very properly refused to charge as requested. The plaintiff did not sue on the agreement to make a deed. There is no breach that the defendant did not make a deed. Hence, the demand of a deed is not a condition precedent to the plaintiff's right of recovery. There was no agreement to deliver land. Hence an averment that he had not delivered it, is no breach of the agreement. But there was no objection on that account. The gravamen is the taking and carrying away the proceeds and profits of the land, which belonged to the plaintiff whether the deed to the land had been executed to him or.not. Upon the facts stated in the added count, there can be no question, but the plaintiff was entitled to the proceeds and profits of the land for the year, that it is alleged the defendant took and carried them away. If this be so, the defendant committed a wrong when he took them and carried them away. Whether it was a wrong to an equitable or a legal right, we are not called upon to determine. Whether the one or the other the defendant was liable and liable to the same extent. The defendant has made no point that if the wrong was committed against an equitable right, the plaintiff has no remedy through an action at law. But he insists that the agreement of compromise was equivalent to a bond for titles. Conceding that, and considering another point in the case, that the agreement effected the rescission of a contract which had been previously entered into between the parties, by which contract, the land had been conveyed by the plaintiff to the defendant, the right of the plaintiff to the proceeds and profits of the land became complete as soon as the terms of the agreement to rescind were complied with on the part of the plaintiff; quite as much so, as the right of the purchaser of land who *597receives a bond for the title to be made when the purchase money is paid. The legal right to the proceeds and profits of the land is in the purchaser of the land who holds only the bond, while the legal title to the land is in the vender.

We think that all the grounds for a new trial based upon the matters herein already discussed were properly overruled, and that the verdict of the jury is not so decidedly against' the weight of evidence as to authorize the granting a new trial on that ground.

Judgment affirmed.