JOINDER OF ACTIONS
(bouvier) | JOINDER OF ACTIONS, practice. The putting two or more causes of action in
the same declaration.
2. It is a general rule, that in real actions there can never be but
one count. 8 Co. 86, 87; Bac. Ab. Action, C; Com. Dig. Action, G. A count in
a real, and a count in a mixed action, cannot be joined in the same
declaration; nor a count in a mixed action, and a count in a personal
action; nor a count in a mixed action with a count in another, as ejectment
and trespass.
3. In mixed actions, there may be two counts in the same declaration;
for example, waste lies upon several leases, and ejectment upon several
demises and ousters. 8 Co. 87 b Poph. 24; Cro. Eliz. 290; Ow. 11. Strictly,
however, ejectment at common law, is a personal action, and a count in
trespass for an assault and battery, may be joined with it; for both sound
in trespass, and the same judgment is applicable to both.
4. In personal actions, the use of several counts in the same
declaration is quite common. Sometimes they are applied to distinct causes
of actions, as upon several promissory notes; but it more frequently happens
that the various counts introduced, do not really relate to different
claims, but are adopted merely as so many different forms of propounding the
same demand. The joinder in action depends on the form of action, rather
than on the subject-matter of it; in an action against a carrier, for
example, if the plaintiff declare in assumpsit, he cannot join a count in
trover, as he may if he declare against him in case. 1 T. R. 277 but see 2
Caines' R. 216; 3 East, R. 70. The rule as to joinder is, that when the same
plea may be pleaded, and the same judgment given on all the counts of the
declaration, or when the counts are all of the same nature, and the same
judgment is to be given upon them all, though the pleas be different, as in
the case of debt upon bond and simple contract, they may be joined. 2 Saund.
117, c. When the same form of action may be adopted, th may join as many
causes of action as he may choose, though he acquired the rights affected by
different titles; but the rights of the plaintiffs, and the liabilities of
the defendant, must be in his own character, or in his representative
capacity, exclusively. A, plaintiff cannot sue, therefore, for a cause of,
action in his own right, and another cause in his character as executor, and
join them; nor can he sue the defendant for a debt due by himself, and
another due, by him as executor.
5. In criminal case s, different offences may be joined in the same
indictment, if of the same nature, but an indictment may be quashed, at the
discretion of the court, when the counts are joined in such a manner as will
confound the evidence. 1 Chit. Cr. Law, 253-255. In Pennsylvania, it has
been decided that when a defendant was indicted at one session of the court
for a conspiracy to cheat a third person, and at another session of the same
court he was indicted for another conspiracy to cheat another person, the
two bills might be tried by the same jury against the will of the defendant,
provided he was not thereby deprived of any material right, as the right to
challenge; whether he should be so tried or not seems to be a matter of
discretion with the court. 5 S. & R. 59 12 S. R. 69. Vide Separate Trial.
Vide, generally, 2 Saund. 117, b. to 117, c.; Com. Dig. Action, G; 2 Vin.
Ab. 38; Bac. Ab. Actions in General, C; 13 John. R. 462; 10 John. R. 240; 11
John. R. 479; 1 John. R. 503; 3 Binn. 555; 1 Chit Pl. 196 to 205; Arch. Civ.
Pl. 172 to 176; Steph. Pl. Index, h.t. Dane's Ab. h.t.
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