PROFITS. license of the defendant in ejectment, for no man can license another to ACTION do an illegal act (1). The defendant, however, in such case, will only be FOR MESNE liable for the mesne profits for the time during which he actually retained possession (m). The action being in trespass could not be maintained by or against personal representatives for the profits accruing during the life-time of the testator or intestate, and received by him (n). But we have seen that the 3 & 4 W. 4, c. 42, sect. 2, altered the law in this respect (o). ration, *The Declaration should state the time when the defendant ejected the [ *196] plaintiff, and the length of time he was kept out of possession: and a dec- The declalaration which does not contain these averments is bad on special demurrer; pleas, &c. but the defect is aided after judgment by the statute 4 Ann. c. 16 (p). The land or other premises from which the profits arose should also be described in the declaration. It is usual to adopt the description of the premises which was given in the declaration in ejectment. It is then averred that the defendant received the mesne profits, showing their value, during the time the plaintiff was kept out of possession. If any particular waste or injury to the premises was committed by the defendant, the same should be stated specially; and as a part of the damages the costs of the action of ejectment may be claimed. And the 3 & 4 W. 4, c. 42, sect. 21, seems to enable the defendant, by leave of the Court or a judge, to pay a sum to cover damages into Court, though this was not before admissible. The plea of not guilty is the same as usual in trespass. The general rule is, that a party against whom the recovery in ejectment was had, cannot, in the action for mesne profits, dispute the right of the lessor of the plaintiff to recover mesne profits after the day of demise laid in the declaration (q). The defendant may protect himself by the statute of limitations from the mesne profits accruing more than six years before the action is brought (r). Bankruptcy is no bar to this action, because the damages are uncertain, and could not be proved under a fiat in bankruptcy (s). Nor does the discharge of the defendant under an insolvent act protect him from this action (t). ges recov In estimating the damages the jury are not confined to the mere rent The damaor annual value of the premises, but may give such extra damages as they erable (1). may think the circumstances of the case demand (u); and the costs of the action of ejectment are recoverable as part of the damages, not only where judgment by default was obtained in the action of ejectment, but also where the defendant appeared and pleaded in that action; nor is it material in these cases that such costs have not been taxed (2). And the plaintiff may also recover as damages the costs incurred by him in a (1) Trespass for mesne profits, does not lie against the lessee of a disseisor. Fletcher v. M'Farlane, 12 Mass. 43; Emerson v. Thompson, 2 Pick. 473, 485, 486. (2) See Emerson v. Thompson, 2 Pick. 478; Denn v. Chubb, Coxe, 466; Starr v. Pease, 8 Conn. 541; Little v. Meachums, 1 Tyler, 488; Huston v. Wickersham, 2 Watts & Serg. 308; Coach v. Gerry, 8 Harring. 423. 196 CONSEQUENCES OF A MISTAKE IN THE FORM OF ACTION. VI. ACTION Court of error, in reversing the judgment in ejectment erroneously obtainFOR MESNE ed by the defendant, although directly such costs may not be recoverable PROFITS. (y). If the plaintiff recover less than 40s. and the judge do not certify that the title came in question, the plaintiff is entitled to no more costs than damages; and this whether the action be in the name of the lessor of the plaintiff, or in that of his nominal lessee (z). [*197 ] CONSEQUENCES OF A MISTAKE IN THE FORM OF ACTION. MISTAKE IN CONSE- We have seen that the Courts consider it of great importance that the QUENCES OF boundaries between the different actions should be preserved (a); and FORM OF the consequences of a mistake in the application of the remedy are very AOTION. material. When the objection to the form of the action is substantial, and appears upon the face of the declaration, without regard to extrinsic facts, it may be taken advantage of by demurrer, or by motion in arrest of judgment, or by writ of error (b). But if the objection is not now apparent on the face of the declaration, but may only be established by the proof of extrinsic facts, then the only mode of objection may be on the trial as a variance and failure in proving an injury as described in the declaration, and consequently ground of nonsuit. Thus where the plaintiff in an action in other respects on the case stated that the defendant wilfully drove his coach and horses against the plaintiff's carriage, the Court arrested the judgment, on the ground that it necessarily appeared from such allegation that the action should have been trespass, and not case (c). When the defendant demurs he is entitled to costs, but not so upon a motion in arrest of judgment (1), or writ of error (2), because he ought to have objected at an earlier stage and by demurrer; and consequently where delay is not desired by the defendant, it is preferable to demur, in order to obtain costs. The cases are contradictory upon the question, whether a substantial objection to the form of action is a ground of nonsuit (d) (3). In a case where it appeared upon the face of the declaration, that the action should have been brought against the sheriff, and not against the under-sheriff; after verdict, upon a rule to show cause why a non uit should not be entered, Lord Mansfield observed, that (y) 7 B. & C. 404. (z) 2 Cromp. Prac. 225; Tidd. 9th edit. 964. (a) Ante, 96, 97, n. (t). The Courts will not decide upon a question in a wrong form of action, even though the parties agree to waive the objection, id. (b) 1 B. & P. 476; 6 T. R. 125; Cowp. 407, 5 Moore, 532. Formerly it was the ground of a plea in abatement, post, title Pleas in Abatement." (c) 6 T. R. 125; 8 T. R. 188; 1 East, 109. (d) Cowp. 407, 414; 1 Camp. 256. (1) Vide Pangburn v. Ramsay, 11 Johns. 141. (2) In the State of New York, a late statute has given costs on the reversal of a judgment. Sess. 36. c. 96. s. 13; 1 R. L. 346; 2 Rev. Stat. 618. s. 31. (3) The plaintiff cannot be nonsuited on account of a defect in his declaration. Van Vechten v. Graves, 4 Johns. 403. Nor can he be nonsuited without his consent, after he has given evidence in support of his cause. Irving v. Taggart, 1 Serg. & Rawle, 360. And on a motion for a new trial, the defendant cannot object to the form of the action. Smith v. Elder, 8 Johns. if the Court should order a nonsuit to be entered, the plaintiff must pay the defendant his own costs, but if the judgment was arrested, each party must pay his own costs; but that as it appeared upon the declaration in that case, that the defendant might have demurred, and thereby have prevented the costs of the subsequent proceedings, the Court would arrest the judgment, and not permit a nonsuit to be entered (e); but in a more recent case it was held otherwise (ƒ) CONSE QUENCES OF ACTION. "When the objection to the form of action does not appear on the face [198] of the pleadings, it can only be taken as a ground of nonsuit, in which case the defendant will be entitled to his costs (g). Thus where the action was in assumpsit for money had and received, and it appeared on the trial that the plaintiff should have declared in another form of action, yet as the objection was not apparent on the face of the declaration, and consequently the defendant could not demur, or avail himself of it otherwise than on the trial, it was decided that the plaintiff was properly nonsuited (h). Where the plaintiff has mistaken the proper form of action, and declared in assumpsit instead of debt, he may even in a penal action have leave to amend, though not so as to charge the defendant's bail (i). But it seems discretionary in the Court to permit an amendment in a penal action (k) (1). If by either of these means the plaintiff fail in his action, and judgment be given against him for that reason, and not upon the merits, he is at liberty to commence a fresh action (2); and the defendant cannot plead in bar the proceedings in the first ineffectual suit (1). Thus, if the plaintiff by mistake bring trespass instead of trover, and judgment be given against him on that account, the defendant cannot plead it in bar to an action of trover brought afterwards against him (m); and if the plaintiff mistake his cause of action, and the defendant demur, the plaintiff is certainly not precluded from commencing a fresh action, and may reply to a plea in bar of the judgment on demurrer, that the same was not obtained on the merits (n) (3). But if the defendant plead, and the plaintiff take the issue, and a verdict be found for the defendant upon the merits, the plaintiff will be estopped from bringing a fresh action; provided the defendant plead the former verdict specially as an estoppel; for if he omit to do so it is, under the general issue, merely matter of argument and inference, in his favor (o)(4). If the plaintiff demur to the plea in bar upon the merits, and such plea be suffi (e) Cowp. 407. (k) 3 Dowl. 636, 637. (1) 2 Saund 47 p. 3. Wils. 309. (m) Id. Ibid. (n) 1 Mod. 207; Vin. Abr. Judgment, Q. 4; Bl. Rep. 831. (0) 2 B. & Ald. 662; Mc'Clel. & Y. 509. (1) See Martin v. M'Knight, 1 Overton, 330; Walton v. Kirby, 2 Hayw. 174; Dulany v. Norwood, 4 Har. & M'Hen. 496; Low v. Little, 17 Johns. 346; Barber v. M'Henry, 6 Wend. 516; Davis v. Saunders, 7 Mass. 62. (2) Vide Benton v. Duffy, Cam. & Norw. 98; Com. Dig. Action, L. 4; Phillips' Ev. 235. Close . Stuart, 4 Wend. 95. (8) A decision of the court in favor of the defendant, upon an agreed statement of facts, and a nonsuit of the plaintiff entered, and judgment thereon for the defendant for his costs, pursuant to such agreement, constitute no bar to a subsequent action for the same cause. Knox v. Waldborough, 5 Greenl. 185; 10 Pet. U. S. C. 298; Wilbur v. Gilmore, 21 Pick. 253. See Hampton v. Broom, Miles, 241. (4) Howard v. Mitchell, 14 Mass. 241; Wood v. Jackson, 8 Wend. 1; Church v. Leavenworth, 4 Day, 274; Towns v. Nims, 6 N. Hamp. 259; Wright v. Butler, 6 Wend. 288; Shafer v. Stonebraker, 4 Gill & Johns. 359. cient, in that case also no second action can be commenced (p); but if the plea were not sufficient, and the judgment against the plaintiff was on the defect in his declaration, the former judgment against him will be no bar (q). [ *199 ] OF JOINDER OF ACTIONS. 1st. Join der of difforms of ferent action. *OF JOINDER OF ACTIONS (v). Where the plaintiff has two causes of action, which may be joined in one action, he ought to bring one action only (1), and if he commence two actions, he may be compelled to consolidate them, and to pay the costs of the application (r) (2). It is, therefore, material to ascertain when several demands may be included in the same action. This may be considered with reference to first, the joinder of different forms of actions; secondly, of different rights of action; and, thirdly, the consequences of misjoinder. The joinder in action often depends on the form (3) of the action, rather than on the subject-matter or cause of action: thus in an action against a carrier for the loss of goods, if the plaintiff declare in assumpsit he cannot join a count in trover, as he may if he declare against him in case; for the joinder depends on the form of the action (s) (4). If (p) 1 Mod. 207; Vin. Abr. Judgment, Q. 4. (g) 1 Mod. 207; Vin. Abr. Judgment, Q. 4, pl. 3. (v) The joinder of several persons in a suit has already been considered. As to joinder of actions in general, see 2 Saund. 117 a, note; Tidd, 9th ed. 10 to 14; Com. Dig. Action, G.; Bac. Ab. Actions in General, C.; 2 Vin. Ab. 38, Actions, Joinder, U. c.; Gilb. C. P. 5, &c. (r) 2 T. R. 639; Tidd, 9th edit. 619. Aliter if, at the time of bringing the first action, the other cause of action had not become perfect and complete, id.; 1 Chit. Rep. 709 a; 9 Price, 303. (8) Per Buller, J. 1 T. R. 277. And see the judgment of Lord Ellenborough, C. J., in 3 East, 70; and ante, 134. (1) A plaintiff cannot split up an entire cause of action, so as to maintain two suits upon it without the defendant's consent; if he attempt to do so, a recovery in the first suit though for less than his whole demand, is a bar to the second. Ingraham v. Hull, 11 Serg. & R. 78; Crips v. Tolrande, 4 M'Cord, 20; Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Avery v. Fitch, 4 Conn. 362; Vance v. Lancaster, 3 Hayw. 130; Corwin v. Corwin, 15 Wend. 557; Strike's case, 1 Bland. 95; James v. Lawrence, 7 Har. & Johns. 73; Stevens v. Lockwood, 13 Wend. 644; Guernsey v. Carver, 6 Wend. 492; Badger v. Titcomb, 15 Pick. 409; Hite v. Long, 6 Rand. 457; Ex parte Gale, R. M. Charlt, 214; Merrick v. Dawson, 2 Harring. 50; Planters & Mechanics Bank v. Chipley, Georgia Decis. 50. (2) Vide Thompson v. Shepherd, 9 Johns. 262. See on the subject of consolidating actions. M'Rhea v. Boast, 3 Rand. 481; Scott v. Brown, 1 Nott & M. 417; People v. M'Donald, 1 Cowen, 189; Brewster v. Stewart, 3 Wend. 441; U. States Bank v. Strong, 9 Wend. 451; Planter's, &c. Bank v. Cohen, 2 Nott & M. 440; Panot v. Green, 1 M'Cord, 531; Scott v. Cohen, 1 N. & M. 413; Camman v. New York Ins. Co., 1 Caines, 114; Mickle v. Brewer, 8 Halst. 85; Den v. Kemble, 4 Halst. 335; Worley v. Glentworth, 5 Halst. 241; Brown v. Scott, 1 Dall. 145; Rumsey v. Wynkoop, 1 Yeates, 5; Prior v. Kelly, 4 Yeates, 128; Groff v. Mussee, 3 Serg. & R. 262; Reid v. Dodson, 1 Overt. 396; Powell v. Gray, 1 Alabama, 77; Wilkinson v. Johnson, 4 Hill, 46; Phillips v. Delane, 2 Brevard, 429; Sykes v. The Planters' House, &c., 7 Missouri, 477. The consolidation rule in New York is the same as the English Rule. Clason v. Church, Coleman, 62; Waterbury v. Delafield, 1 Caines, 513; Earl v. Lefferts, Coleman, 98; Jackson v. Scauber, 4 Cowen, 78; Higginson v. Gray, 8 Mass. 385. Actions will be consolidated in New York, although one suit was commenced before the cause of action accrued in the other. Dunning v. Bank of Auburn, 19 Wendell, 23. See Anderson v. Towgood, 1 Adol. & El. U. S. 245. (3) But see Hallock v. Powell, 2 Caines, 216. (4) Causes of action founded on tort and on contract cannot be joined in the same declaration. Church v. Mumford, 11 Johns. 480; Clinton v. Hopkins, 2 Root, 225; Ryle v. Howlet, 8 Bibb. 347; Stoyel v. Westcott, 2 Day 418; Wickliffe v. Saunders, 6 Monroe, 298; Same v. Da OF ACTIONS. a cause of action which ought to be laid in assumpsit, be improperly laid oF JOINDER in case, and joined with a count in trover, no objection can be taken with effect on the ground of misjoinder, but only the particular defective count should be demurred to (t). But if the count objected to be for a nonfeasance and breach of a contract, and is substantially in assumpsit, though it omit the words, "undertook and faithfully promised," yet it will be considered as framed in assumpsit, and if it be joined with other counts merely for torts, the misjoinder will invalidate the whole declaration (u). In a declaration on the case, one count stated that the plaintiff, at the request of the defendant, had caused to be delivered to him. certain swine to be taken care of for reward, and in consideration thereof defendant agreed with plaintiff to take care of the swine, and re-deliver the same on request; and the Court held, on motion in arrest of judgment, that this was a count in assumpsit, and could not be joined with counts in case (x). The result of the authorities is stated to be, that "when the same plea may be pleaded, and the same judgment given on all the counts of the declaration; or whenever the counts are of the same nature, and the same judgment is to be given on them all, though the pleas be different, as in the case of debt upon bond and on simple contract, they may be joined" (y) (1). Perhaps the latter, that is, the nature of the cause of action, is the best test or criterion by which to decide as to the joinder of counts (z). By this rule we may decide in general what forms of action may be joined in the same declaration. In actions in form ex contractu, the plaintiff may join as many different counts as he has causes of action of the same nature in assumpsit; so also in covenant, debt, account, annuity, or scire facias (a). So debt on bond. or other specialty, may be joined in the same action with debt on judgment, or on simple contract, or for an amerciament (2); and debt and detinue may be joined together, though in all these cases the pleas are different, and in detinue the judgment also varies from the form of the judgment in debt (b); which joinder has probably been allowed, because the practice is sanctioned by the entries in the Registrum Brevium (c). So several (b) Bro. Ab, Joinder in Action, 97; Gilb. 66 vis, 2 J. J. Marsh. 70; Carstarphen v. Graves, 1 A. K. Marsh. 435; Sayers v. Scudder, 1 Penn, 53; Van Pelt v. Van Pelt, 2 Penn. 619; Toris v. Long, 1 Taylor, 20; Traudle v. Arnold, 7 J. J. Marsh, 407. Trespass or trover cannot be joined with assumpsit. Polhumus v. Annin, Coxe, 176; Little . Gibbs, 1 South, 11; Howe v. Cook, 21 Wendell, 29. (1) Whipple v. Fuller, 11 Conn, 582. (2) So, debt on simple contract and on judgment may be joined. The Union Cotton Manufactory v. Lobdell, 18 Johns. 462. Or on specialty, Mardis v. Terrell, Walker, 327; Tillotson v. Stiff, 1 Blackf. 77; Flood v. Yandes, ib. 102; Smith v. Lowell, 8 Pick. 178; Vandeusen v. Blum, 18 Pick. 229, 231; Farnham v. Hay, 3 Blackf. 167; Eib. v. Pindall, 5 Leigh, 109; Patterson v. Chalmers, 7 B. Monroe, 595. Counts in debt and assumpsit cannot be joined. Flood v. Yandes, 1 Blackf. 102. Counts in detinue ex contractu, and in debt may be joined. Racker v. Hamilton, 3 Dana, 36. Calvert v. Marlow, 18 Alabama, 67, 200] |