Cooper v. Bissell

16 Johns. 146

• Court: New York Supreme Court
• Decided: May 15, 1819
• Status: Published

Opinion

Per Curiam.

Without a suggestion of special facts, and an express award of the venire to the coroner, or to elizors, the process can be legally executed and returned by the sheriff only. The statute of jeofails does not extend to such a case, and the judgment is, on this ground, erroneous. (1 Sell. Pract. 392.)

The rule in regard to joining different counts in the same declaration is somewhat perplexed; but a review of all the adjudged cases warrants, at least, this conclusion, that where the counts require different judgments, they cannot be joined. (Tidd. Pr. 11. in nolis. 1 Chitty Plead. 199. Courtney v. Collet, Lord Raym. 272. 2 Saund. 117. e. n. 2.) The judgment in trespass vi et armis, and for all other torts committed with force and violence, is, beside damages, quod defendens capiatur pro fine ; and in all actions of trespass on the case, for torts, which imply no force, the judgment is quod sit in misericordia. Trover is of the latter description, and, therefore, cannot be joined with trespass vi et armis. We regret that the law is so, but the authorities show,’that this may be taken advantage of on a writ of error, as well as on demurrer, or on arrest of judgment. ( Chitty on Plead. 206.)

• Judgment reversed.