The Providence news. (Providence [R.I.]) 1891-1906, 1897-05-14
JUDGMENT ARRESTED.
Decision of Appellate Court In Case
of Bull VS. Mathews.
The Court Declares That There Was a
Fatal MiSjoinder.

The following opinion in the case OF
John Bull VS. Charles II. Mathews has
been handed down by the Appellate
Court:
Tillinghast, j. This is a motion in
arrest of Judgment on the ground Of
misjoinder of causes Of action. The action
e. 'rcspass on the case for troyer and cor
rsion, and the declaration contains a
, mt IN ,royer ana conversion and also
{ 10 ordinary counts in assumpsit AT the
trial of the case In the District Court q
decision was rendered in favor of the
plaintiff for sly. 10 and COSTS but there II
nothing in the record TO show whether
the Judgment was based on the count in
troyer and conversion or on those In
assunpsit. No plea was filed in the
ease, but as the defendant entered an
appearance the general issue Is deemed 90
be filed. General Laws II. /. Cap 237
sec. 3. But whether in this case, tho
general issue ms To the court is troyor,
which would be not guilty or as To the
counts in assumpsit, which would lie
non-assumpsit, is in, we have no means
Of determining. Within five days after
the rendition Of said decision the defend
ant filed his motion in arrest of judgment
in the District Court, whereupon the
case was certified TO this court.
1t is "A familiar rule of common-law
pleading that counts sounding in tort
cannot properly be joined with counts
sounding i'm contract, and also that such
misjoinder is fatal, not only on demurrer
bat also on motion in arrest of judgment
Ency Pl & Pr vol. 2, p. SOB and cases
cited; Haskell VS.. Brown, 44vt. $40. The
effect Of such misioindcr is clearly ex-
pressed in Chit Pl., . Am. ed 206 as
follows: The consequence of mis-
jolnder are more important than the
circumstances Of particular count being
defective; for in case OF misjoindor,
however perfect the counts may respec
lively be in themselves, the declaration
will be had on demurrer or in arrest of
Judgment or upon error See also
Gould's pl @, chap. 4, sec. 81, and cases
cited
The ordinary tests for determining
whether different causes of action may be
Joined Is TO enquire whether the same
plea may be pleaded and the same iudg-
ment given on all counts Of the declara-
ton; and unless this question can lie
answered in the affirmative the counts
cannot be Joined. See Drury vs.. Merrill
Index Il. T. see also court of probate
VS.. Sprague r. l. 205.
Applying this testsst the case at bar,
IL will at once be seen that there is "A fatal
miSjoinder III the pleader in this case
rad omitted TO strike out the money
lnts which are printed in the writ, per-
h rs we might disregard them; but as he
1as filled them out in the ordinary way
where the case Is assumpsit we feel bound
20 presume that he intended 10 rely
thereon, as we'll as on the count in trover.
IL is true that since the case was Ger.
titled TO the court the Ilaintif's counse,
has filed an affidavit setting forth that
by reason of mistake anG oversight he
neglected % strike out the money counts.
aud also that at the trial in the District
c lurt the evidence introduced was con
fined TO the count in trover, which was
the only count relied ON. But as
motion in arrest Of judgment arises only
those objections which are apparent upon
the rect rd State vs. Paul II. l. lS9;
Black on judgments. vol. |, sec 96-S;
and as the affidavit forms no part of the
record, T. not at liberty to consider IL.
Judgment arrested.