5 Ga. 571 | Ga. | 1848
By the Court.
delivering the opinion.
In the State of New York, under their new code, the plaintiff ¡may now unite several causes of action in the same complaint, where they all arise out of—
1st. Contract, express or implied.
2d. Injuries, by force, to person or property.
3d. Injuiies, without force, to person or property.
4th. Injuries to character.
5th. Claims to recover real property, with or without damages for the withholding thereof.
6th. Claims to recover personal property, with or without damages for the withholding thereof.
7th. Claims against a trustee, by virtue of a contract, or by operation of law.
But even this reform, important as it is, stops short of accomplishing all that was practicable in this department of the law. Why restrict the action to causes which fall under one of these
In the late case of The Attorney General vs. The Corporation of Poole, 4 Mylne & Craig, 17, in speaking of the right of one defendant to demur for multifariousness on the ground of the joinder of another, Lord Cottenham, Lord Chancellor, says : “ If it were competent for him to do so in such a case, there anight in many instances be a denial of justice ; the case against <®ne defendant might be so entire as tobe incapable of being prosecuted in several suits; and yet, some other defendant might be a necessary party to some portion only, of the case stated.” p. 31. Such we conceive to be the case before us, that the draughtsman of this bill could not have possibly prosecuted the suit against Brantley, nor could a jury have ascertained his liability on the last firm, without first considering and investigating the affairs of .the first firm, of which Daniel was a partner.
The same eminent authority above quoted, in Campbell vs. Mackay, 1 Myl. & Cr. 603, says: “To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition, is, upon the authorities, utterly impossible. The cases upon the subject are extremely various, and the Courts, in deciding them, seem to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any general rule.”
The case of Lewis vs. Edmund, 6 Sim. 251, is much in point. "Without stating the facts, suffice it to say, the object of the bill was to settle two different estates, the assets of the one having been mingled with the other. The Vice Chancellor says: “The bill represents such circumstances as to show that the Court cannot administer relief without taking the account of both estates.”
Authorities might be multiplied from the English hooks, but these are sufficient to show that the rule, as administered in "Westminster Hall, would have held this bill not multifarious, and if multifarious, that Brantley could not take advantage of it, the co-defendant, Daniel, not objecting.
The rule in the American Courts is the same. 5 Paige, 160. Ib. 254. 9 Paige, 194, 434. 20 Pick. 368.
In Wells vs. Strange and others, decided by this Court at Americus, (5 Ga.Rep.) we laid down the same rule, which we now enforce, by reversing the judgment of the Court below.