2 Md. 313 | Md. | 1852
delivered the opinion of this court.
The appellee sued the appellant in an action on the case. The declaration contained a count in trover, and one de bonis asportatis; both relating to the same property. On the pleas of non cul. and issue, the jury found for the plaintiff. The defendant moved in arrest of judgment. This appeal is taken from the judgment of the court below overruling that motion. The only question before us is, whether there is such a misjoinder of counts as is fatal on this motion.
The cases are numerous, both in this country and in England, and so conflicting that it is impossible to reconcile or deduce any certain rule from them. In Chifty’s Pleading, vol. 1, PI. 200, (Joinder of Actions,) it is said, “In actions in form ex delicto, several distinct trespasses may be joined in the same declaration in trespass. And several causes of action in case may be joined with trover; thus, cose against a common carrier for losing goods; or a count for immodeiately riding a horse; or for disturbing plaintiff in his right of common; or for hindering him from landing goods upon a yard of defendant, contrary to agreement; or for not returning to plaintiff a dog delivered to tire defendant, to be fried and returned in a reasonable time, but keeping and detaining him from the plaintiff; may be joined in one action with a count in trover. And in a declaration in trespass, the plaintiff may unite a count for the battery or seduction of his servant, per quod servitium amisit, with a count for battery of the plaintiff himself, or qua-re clausum fregit, or trespass or rescue; and all these counts might be included in one declaration, though the loss of serví-' ces, and the consequence of the rescue, might be made the subjects of an action on the case.” For this, apparently in
The reason assigned why counts in trover and trespass cannot be joined, at common law, is, that the judgments are not the same. This is explained in Gould's Plead., ch. 4, secs. 38, 39. Every defendant on conviction, in a civil action, of a forcible wrong alleged to have been committed vi et armis, &.C., was obliged to pay a fine to the king, for the breach of
In Maryland, however, we have no such proceeding to punish the implied breach of the peace, and for this reason, probably, that form of entering judgment in trespass has fallen into disuse. In Harris’ Entries, from which our records have been made up for more than half a century, we find no such precedent, but, on the contrary, that for judgment in trespass on verdict,-concludes like judgments in case, quod sit in misericordia, 6fc.,vol. 2, 149, 2 Ev. Har., 351, 352. The forms are the same.
In the case before us the pleas to the two counts are the same, and the judgments being the same, according to our practice, the rule laid down by Justice Buller and Chitty applies. There is no necessity, on such a question, for adhering to a rule after the reason for its application has failed; especially in a case within the equity of the act of 1809, ch. 153, sec. 2, if not within its letter; a point, however, which we need not decide, though relied on by the appellee’s counsel.
We do not express any opinion on the subject of variance between the writ and the count in trespass, from which inquiry, on this motion, we are precluded by the act of 1809, ch. 153; nor do we intimate what would be the effect of that objection if taken at an earlier stage of a cause.
Judgment affirmed.