joinder of actions

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.