Swem v. Sharretts ( 1878 )

Bartol, C. J.,

delivered the opinion of the Court.

A verdict was rendered in favor of the appellee, the plaintiff helow, and the appellant moved in arrest of judgment for the alleged reason that “ there is a misjoinder of causes of action in the narr.”

The only question for review on this appeal is the action of the “Superior Court” in overruling the motion.

The declaration contained - originally sev.en counts, the last of these was for the rent of a dwelling house ; leave was granted to amend, and an eighth count was added for the rent of certain rooms in the dwelling house.

The supposed misjoinder is alleged to arise from the first six counts being in indebitatus assumpsit, while it is said the seventh and eighth counts are in debt. If this he so the objection would he fatal. It was decided in The Canton N. B. Association vs. Weber, 34 Md., 669, that under the Code, a count in debt cannot be joined with counts in assumpsit, and if a declaration contains such misjoinder it is had in arrest of judgment.

This leads us to examine whether the objection in this case is well taken. The first six counts are in the form prescribed in the Code, Art. 75, sec. 22, counts lst to 7th, inclusive, called ‘ ‘ Common Counts. ’ ’ The appellee contends that these counts are in debt and not in assumpsit, because they do not allege a promise by the defendant, which it is said is essential to constitute a count in assumpsit. At the common law such an allegation was necessary to make a good count in assumpsit. Smith vs. Cox, 11 Mes. & W., 475 ; Metcalf vs. Robinson, 2 McLean, 365 ; Cruikshank vs. Brown, 5 Gilman, 77; Gould’s Pleading, ch. 3, sec. 19; 1 Chitty Pl., 301.

This Rule has been changed by the Code, which has dis- . pensed with the necessity of alleging a promise and provides, Art. 75, sec. 22, that “the statements of causes of actions, for the common counts, therein prescribed shall he sufficient.” In none of these is any promise by the defendant alleged, and yet they are counts in assumpsit; and so are the first six counts in the declaration in this case, which follow the' form prescribed by the Code.

(Decided 26th March, 1878.)

In our opinion the seventh and eighth counts are also in assumpsit, and not in debt. They allege the letting by the plaintiff to the defendant of certain tenements described, at twelve dollars per month, and the occupation thereof by the defendant for the period mentioned, and allege the amount due on account of said rental. If the declaration had averred a promise by the defendant to pay, there could be no doubt or question but that these would be good counts in assumpsit. But as we have said, the Code has dispensed with the necessity of alleging a promise.

It seems to be supposed by the appellant’s counsel, that these are counts in debt, because they are for the recovery of rent. But as said by Chitty, vol. 1, p. 106, since the Statute of George 2, ch. 19, “rent due on a demise not under seal, may be recovered by action of assumpsit as well as debt.”

Here the letting was by parol, and consequently an action of assumpsit may be maintained for the rent.

Being of opinion that there is no misjoinder of causes of action in the narr., the judgment will be affirmed.

Judgment affirmed.