23 Conn. 134 | Conn. | 1854
The first question in this case is, whether the declaration sets out a good cause of action.
It states, that the defendants, having brought a petition to the superior court for the foreclosure of a mortgage of a certain piece of land, therein described, which had been exe
The remaining question is, whether it is bad for duplicity. The particulars in which it is stated, in the special demurrer, to be double, and which only we can consider on a demurrer for this cause, are, that it sets up, 1. That the defendants enforced the execution issued on their judgment in the ejectment suit mentioned in it; 2. That they sold the personal property of the plaintiff, on said execution; 3. That they violated their promises to the plaintiff; and 4. That they deceived and defrauded the plaintiff. That the declaration states a good cause of action, on the last mentioned ground, has been shewn. Whether any other is sufficiently set forth in the count, so that a judgment on it would be sustained on a writ of error, is very questionable. Perhaps, however, under the rules respecting duplicity, if the plaintiff has sought to recover for any other cause of action in that count, it would be no answer to that objection, that it is so imperfectly set forth, that, if it constituted a distinct count, it would be demurrable. But we have not considered it necessary to examine these questions, because we are of opinion, that if any other cause of action is so stated in this count, that it would not be exceptionable either in substance or form, if contained in a distinct count, there is none so intro
Nor is the introduction of facts in a count which would constitute a distinct cause of action, considered as duplicity, whev.e such facts are stated, not as a ground of recovery upon them, taken by themselves, but only as constituting part of the entire facts, or cause of action, on which the plaintiff relies for a recovery. . Accordingly, in Bac. Ab. K., 2, duplicity is laid down to be, “ Where distinct matters, not being part of one entire defence,” or, it might be added, ground of recovery, “ are attempted to be putin issue.” The defendant cannot distort, or vary the claim, which the plaintiff has chosen to make, whatever it is, in order to raise an objection to it. Nor does the statement of immaterial matter, in a declaration, make it double. Steph. Pl., 301. It is very common for the plaintiff, especially in actions ex delicto, in connection with the facts on which he claims to recover, to state matters, from which it appears that he has another cause of action against the defendant, either by way of amplifying, or
On an examination of the declaration in this case, we are satisfied that the claim of the plaintiff ought to be considered as founded on the fraud and deceit, practiced on him by the defendants, in regard to the time limited for the redemption of the premises mortgaged by the plaintiff, and that, the statement of the other matters, which are claimed by the defendants, as setting up other causes of action, was made, not with a view of introducing any new or. distinct ground of recovery, but only for the other purposes which we have mentioned. The conduct of the defendants, under their execution, in dispossessing the plaintiff of his land, and levying on his personal property, and the violation by the defendants, of their promises, are evidently not introduced as distinct and independent causes of action, but for the purpose of shewing the original fraudulent scheme of the defendants, the manner in which they carried it into effect, and the extent, and character of the injury inflicted on the plaintiff. The objection of duplicity is therefore unfounded, and there is no error in the judgment complained of.
In this opinion the other judges concurred, except Hinman, J., who was disqualified.
Judgment affirmed.