Lovett v. Pell.

And

to be, that a writ was found in the register in which they were both comprised. 1 Bac. Abr. 58, 7th Lond. ed. To this register of original writs, the different fines payable to the crown upon suing out the original and the different process founded thereon originally, might probably be traced the separation of different causes of action, which might now apparently have been joined in one suit, without any difficulty. It is well known to the profession who have traced back the common law to its source, that after the aula regis was broken up, and the four great courts of chancery, king's bench, common pleas, and exchequer were established in its place, the jurisdiction of the three common law courts was parcelled out to them by the original writs issuing out of the court of chancery; which were framed by the clerks of that court to meet the different kinds of action then in use, and adapted to the different modes of proceedings in actions of tort and actions upon contract, &c. as no new suits could be commenced except in conformity to the writs or precedents entered in the register, until the statute of 13th Edward I, which authorized the court of chancery to meet new cases, it was perfectly natural that the various. actions of debt, covenant, account, detinue, trespass, &c. should have been kept separate and distinct, from assumpsit and other actions on the case, which were founded upon the new original writs that were subsequently devised. One thing at least is certain, that covenant and assumpsit have always been considered as actions distinct in their natures, and have never been joined in the same suit; and I believe I may also say, they have never been successfully joined with a count in any other form of action. The case of Hallock v. Powell, 2 Caines' R. 216, referred to upon the argument, certainly does not form an exception, as the reporter manifestly has made a mistake in stating the case. Although the defendant pleaded non assumpsit to one of the counts in that case, Mr. Justice Livingston says he might have pleaded not guilty to both counts, as the breach assigned was a deceit in delivering a deceased horse, after undertaking to deliver one that was sound; and Mr. Justice Van Ness stated that

Lovett v. Pell.

he had examined the counts in that case, and they were both in deceit. I presume the one count charged that the defendant promised that the horse was sound, knowing him to be unsound; and that the other charged that he warranted him sound, knowing the fact to be otherwise; grounding his action upon the fraud and deception, instead of the promise. As there was a clear misjoinder of counts in the present case, it remains to be seen whether it was a matter of form which was cured by a statute of jeofails.

There is a class of cases in which a misjoinder of different causes of action, and the assessment of general damages thereon, must necessarily produce an erroneous judgment, so as to deprive the defendant of some substantial right; such are the cases of a joinder in a suit against a husband and a wife, of a count for a debt due from the wife while sole, with a count for a debt contracted during coverture, for which she could not be legally liable; and the joinder of a count against an executor or administrator for a debt due from the decedent, with a count for a debt due from the defendant personally. But in a case where the judgment is right as to all the counts, or would have been so if the recovery had been in separate suits, I had supposed, until I found otherwise upon examination, that the broad language of the first section of the statute 16 and 17 Charles II. ch. 8, to prevent arrests of judgments, &c., which is incorporated into our revised statutes, as well as into the revision of 1813, would have protected the plaintiff after verdict. I regret that I am obliged to say, however, that the law appears to have been settled otherwise, not only in our own courts, but also the courts of England, both before and since the revolution. Had I found only the single case of Cooper v. Bissell, 16 Johns. R, 146, I should not have hesitated to have said of it, as Lord Ellenborough said of the case of Bage v. Brownell, 3 Lev. 99, "that case has had its day, and it is time it should cease." See Kightly v. Birch, 3 Maule & Sel. 533.

The case of Mathews v. Hopping, the carrier of Tiverton, decided in 1665, cited by the counsel in Denison v. Ralphson, 1 Ventris, 365, as a case sustaining the principle

Lovett v. Pell.

that a misjoinder of counts was cured by verdict, turns out to be directly the other way. By a reference to that case, as reported both by Siderfin and Keble, it will be seen that upon a motion in arrest after verdict, the court held that there was a misjoinder of counts in assumpsit and trover, and arrested the judgment, notwithstanding the verdict. See 1 Siderf. 244; 1 Keble, 852, 870. The case of Bage v. Brownell is the one overruled by Lord Ellenborough, as having had its day; and I only refer to it now for the purpose of showing with what pertinacity the courts held to the rule that a misjoinder of counts was an error of substance, even after the statute 16 and 17 Charles II. In that case counts for trover and assumpsit were joined in the same declaration; and although the jury had found a verdict for the plaintiff on the one count, and for the defendant on the other, thereby completely severing them, the court still considered themselves bound to arrest the judgment. In the similar case of Holms v. Taylor, 3 Keble, 302, 335, the judges differed in opinion as to the effect of a severance by the jury, though they all agreed that the judgment must have been arrested, if the verdict had been in favor of the plaintiff upon both counts. In the case of Dalston v. Janson, in 1695, 5 Mod. R. 91; 1 Salk. 10 S. C., the judgment was arrested after verdict, for a misjoinder. So in Bridgen v. Parkes, in 1801, 2 Bos. & Pul. 424, the court of common pleas in England held that a misjoinder of counts was bad on general demurrer; and they also said it might be alleged in arrest of judgment, or assigned for error. In 1827, in the case of Corbitt v. Packington, 3 Barn. & Cress. 268, the court of king's bench arrested the judgment after verdict, for a misjoinder of counts in case and assumpsit. And in the still more recent case of Comee v. Shaw, in 1838, 1 Hom. & Hurl. R. 65; 3 Mees. & Welsb. 350, S. C., the court of exchequer arrested the judgment after verdict for a misjoinder of counts. In this last case upon a subsequent application for a venire de novo, to enable the plaintiff to have the damages assessed severally, so that they might be remitted as to some of the counts, the court decided that the granting or refusing a venire de novo, was a matter of

Lovett v. Pell

duty, and not a matter of favor; and that it was not proper to grant it in such a case. 1 Hom. & Hurl. 215. In addition to these English cases, which appear to have continued in an unbroken current from the time of the passing of the statute 16 and 17 Charles H., to the present time, and to the decision in our own state twenty years since, the courts of our sister states of Pennsylvania and Kentucky have made similar decisions in the cases of Strobecker v. Grant, 16 Serg. & Rawle, 237, and of Carstarphin v. Graves, 1 A. K. Marsh. R. 435. And as I have not been able to find any provision in the revised statutes in reference to this subject broader than the provisions of the former statutes of jeofails, when taken together, I think we cannot reverse the judgment of the supreme court without changing the settled law of the land. I am therefore compelled to vote for an affirmance of that judgment.

It was

By Senator VERPLANCK. The judgment obtained in the New-York common pleas upon verdict was reversed by the supreme court, on the rigid technical rule that counts in covenant cannot be joined with counts in assumpsit, and that such a misjoinder of counts may be taken advantage of on a writ of error, as well as on demurrer. The English books of pleading and practice are strong to this point; so, too, are many formerly adjudged English cases. also so decided, though quite reluctantly, and with expressions of regret, by our own supreme court before the revision of the statutes. 16 Johns. R. 146. In this appellate court, it has never been adjudicated in any way, or even formally recognized; and accordingly, especially since the revision of our statute law, may be considered as here an open ques tion.

1 am decidedly of opinion that the case of misjoinder of counts, whereby (to use the language of our statute) “neither party has been prejudiced, and no result has been produced against the right and justice of the matter of the suit," is within the provisions of our lately revised law "for amending pleadings and proceedings." It is there enacted, that "when a verdict shall have been rendered in any cause,

Lovett v. Pell.

the judgment thereupon shall not be reversed, impaired or affected" for various technical defects there enumerated, one of which is mispleading. I think, that according to the sense and intention of our enlarged statute of amendments, mispleading includes within its sense a misjoinder of counts. The word is frequently employed in a narrower sense; but it may very well be used with various degrees of latitude, since the word pleading, on which it is formed, is used with still greater. Neither that word, nor its derivative, mispleading, are words of precise definition and unvarying meaning, but are understood with more or less latitude, according to the context, and the intent and object for which they are used. "Pleading" says Tomlins, "in a large sense, contains all the proceedings from the declaration until issue joined; but in its immediate sense is taken for the defendant's answer to the declaration." Toml. Law Dict. Pleading. Mispleading, in its immediate, and I suppose more usual sense, signifies essential errors or ommissions in the defendant's defence; but it is also expressly defined to comprehend "any mistakes or omissions, essential either to the action of defence, occurring either in the declaration or the subsequent pleadings." See 2 Tidd's Prac. 954. According to this larger and broad sense, the word must comprise, as one species of mistake essential to the action, such a misjoinder of counts as would be bad on demurrer; and it would fall strictly within the intention of our statute, that such a mistake should be cured after verdict, when no prejudice has been done by it to the substantial justice of the cause and the rights of the parties.

Let us look at the subject in another light. Mispleading, according to its etymology and natural meaning, means. pleading amiss, or pleading wrongly. This is the well known familiar use and derivation of the word. But in so technical a point, and arguing against high technical authorities, I will not rest my interpretation upon the known use and etymology of untechnical words. I go to authority, and take the definition of one of the oldest and best expounders of legal phraseology: "Mis. (Cowel's Interpreter.) This syllable, added to another word, signifies some fault.