Sawyer v. Childs

• Decision Date: 23 March 1910
• Citation: 83 Vt. 329,75 A. 886
• Parties: SAWYER v. CHILDS et al.
• Court: Vermont Supreme Court

75 A. 886

83 Vt. 329

SAWYER

v. CHILDS et al.

Supreme Court of Vermont. Windsor.

March 23, 1910.

Exceptions from Windsor County Court; Fred M. Butler, Judge.

Action by F. J. Sawyer against W. O. Childs and others. A demurrer to the declaration was overruled, and defendants except Reversed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Fred H. Spauldlng and Charles Batchelder, for plaintiffs.

Herbert H. Blanchard and Herbert G. Tupper, for defendant.

WATSON, J. The declaration is in four counts: The first is trespass for breaking and entering the plaintiff's dwelling house and taking and carrying away certain goods and personal property, etc.; the second is trespass for breaking and entering the plaintiff's dwelling house and expelling him therefrom, etc., but without any allegation as to goods and personal property; the third is trespass for taking and carrying away the plaintiff's goods and personal property; and the fourth is trover. On demurrer it is contended that the declaration is bad because of misjoinder of counts.

At common law several counts for several distinct trespasses may be joined (Stevens on P1-267; 1 Chit. P1. 200), including counts for trespass quare clausum fregit and counts for trespass de bonis asportatis (Bishop v. Baker, 19 Pick. [Mass.] 517), but counts in trespass and counts in trover cannot be joined (Gould's P1. c. 4, § 87; Cooper v. Bissell, 16 Johns. [N. Y.] 146). Under the statute (P. S. 1503) counts in trespass may be joined with counts in trespass on the case, including trover, in one declaration, if for the same cause of action.

The fourth count contains an allegation in effect that it is for the same cause of action as the other three counts. That this allegation may be true as to the third count there can be no doubt. But, as to the first count, the question must be determined upon the authorities. In Hubbell v. Wheeler, 2 Aikens, 359, the action was trespass for breaking and entering the plaintiff's dwelling house and therein debauching his daughter, by which he lost her service. Plea not guilty, with notice of special matter justifying the breaking and entering by license of the plaintiff. And, such license being proved, the question was whether the plaintiff could recover for the injury of seduction as a substantive ground for an action of trespass. On examination of authorities, it was held that if the defendant had pleaded the license to enter the house, specially and in bar, the plaintiff might have newly assigned the debauching of the daughter, and recovered for that as a distinct substantive trespass; and that as the defendant, instead of pleading specially in bar, gave notice that he should justify the entry of the house by proof of a license under the general issue, the plaintiff was entitled to avail himself of the trespass in debauching the daughter, under the general issue, the same as he might have done by a new assignment, had the license been pleaded in form. In Grout v. Knapp, 40 Vt. 163, the action was trespass for breaking and entering the plaintiff's close, and the destruction of his gate and fence. The defendant pleaded a public right of way, and that, having occasion to use it at the several times when, etc., he entered the locus in quo for that purpose, which he alleged were the same trespasses of which the plaintiff complained in his declaration. To this plea a demurrer was interposed, and the question in this court was as to the sufficiency of the plea. It was urged by the plaintiff that, although the plea justified the breaking and entering, it did not the destruction of the gate and fence; he insisting that such destruction was not matter of aggravation, but of the gist 6f the action, and should have been answered by the plea. It was held not to be of the gist of the action, but matter of aggravation merely, and that the plea justifying the breaking and entering was a sufficient answer to the whole declaration. The court, through Judge Prout, however, said: "But the question is susceptible of another view. The declaration in this case will admit of the construction either that the matter unanswered by the plea was insisted and relied upon as aggravating the damages merely, or that it was relied upon by the plaintiff as a distinct injury, and that he intended to recover for it. If there is any reasonable...