59 Vt. 628 | Vt. | 1887
The opinion of the court was delivered by
The declaration in this case was demurred to for misjoinder of counts. Demurrer sustained and judgment for defendant.
The declaration contains two counts, one in trespass, the other in trover. No question is made but this would have
It is not necessary that the declaration should contain any special allegation that the several counts are for the same cause of action. Alger v. Curry, 38 Vt. 382. But in that case no question is made but the counts were for. the same cause of action.
It is sufficient if - the court are satisfied’ from the declaration itself that the several counts are for the same cause of action. Black v. Howard, 50 Vt. 27. In this last case, which was trespass q. c.f., with a count in case, the premises are described in the first count as the “ home farm, so called,” etc., of plaintiffs, and the trespass was the breaking in and tearing down of the £ ‘ division fence ” between the land of the plaintiffs and the defendant. The second count is substantially like the firsthand in the third count, which is the count in case, the premises are again described as ‘ ‘ the home farm of the plaintiffs and the breach of duty alleged is the neglect of the defendant to build and maintain ‘ ‘ a division fence ” a part of the way between his land and the land of the plaintiffs. Here was almost an identity of description; and the court, Barrett, J., say they ‘' are satisfied that the third count was meant to cover and embrace the cause of action meant to be covered and embraced by the first two counts.”
But we cannot be similarly satisfied in regard to the two counts of the declaration in the case at bar. The property is described in the first count as ‘ ‘ a large amount of valuable trees standing and growing on said lots, to wit: 3,000 spruce trees, 1,000 hemlock trees, and 1,000 other trees,” etc. ; in the second count as “ a large amount of spruce logs-and sawed spruce and hemlock lumber, to wit: 250,000 feet of spruce lumber and 10,000 feet of hemlock lumber,” etc. Here plainly is not only no trace of identity, but rather great dissimilarity
If there had been an averment that the property described in the second, was the. same property described in the first, count, it might have been necessary to consider whether a count for the conversion of the logs and lumber could be joined with trespass.for entering and cutting down the trees, under the statute ; but for the reasons above expressed we consider this declaration fatally defective without coming to that question.
On motion of the defendant, the judgment of the County Court is reversed joro forma, and cause remanded.