Templeton v. Clogston
| Decision Date | 24 September 1887 |
| Citation | 10 A. 594,59 Vt. 628 |
| Parties | HORATIO TEMPLETON v. O. C. CLOGSTON |
| Court | Vermont Supreme Court |
TRESPASS and trover. Heard on demurrer to the declaration March Term, 1887, VEAZEY, J., presiding. Judgment sustaining the demurrer.
Reversed and remanded.
J. A Wing and S. C. Shurtleff, for the plaintiff.
The counts are sufficient. United States v. Ordway, 30 F. 30. There is not a misjoinder. 2 Chit. Pl. 369; Haskin v. Record, 32 Vt. 575; Hagar v. Brainard, 44 Vt. 294; Black v. Howard, 50 Vt. 27.
Pitkin & Huse, for the defendant, cited 1 Chit. Pl. 199, 206; R. L. s. 912; Keyes v. Prescott, 32 Vt. 86; Skinner v. Wilder, 38 Vt. 115; Hagar v. Brainard, 44 Vt. 294; Black v. Howard, 50 Vt. 27. The two counts do not embrace the same cause of action.
The declaration in this case was demurred to for misjoinder of counts. Demurrer sustained and judgment for defendant.
The declaration contains two counts, one in trespass, the other in trover. No question is made but this would have been a misjoinder at common law; and if allowable at all, it is under our statute, R. L., sec. 912, which provides that "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."
It is not necessary that the declaration should contain any special allegation that the several counts are for the same cause of action. Alger v. Curry, 38 Vt. 382. But in that case no question is made but the counts were for the same cause of action.
It is sufficient if the court are satisfied from the declaration itself that the several counts are for the same cause of action. Black v. Howard, 50 Vt. 27. In this last case, which was trespass q. c. f., with a count in case, the premises are described in the first count as the "home farm, so called," etc., of plaintiffs, and the trespass was the breaking in and tearing down of the "division fence" between the land of the plaintiffs and the defendant. The second count is substantially like the first, and in the third count, which is the count in case, the premises are again described as "the home farm of the plaintiffs;" and the breach of duty alleged is the neglect of the defendant to build and maintain "a division fence" a part of the way between his land and the land of the plaintiffs. Here was almost an identity of description; and the court, BARRETT, J., say they "are satisfied that the third count was meant to cover and embrace the cause of action meant to be covered and embraced by the first two counts."
But we cannot be similarly satisfied in regard to the two counts of the declaration in the case at bar. The property is described in the first count as "a large amount of...
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