Misjoinder of causes of action, or counts, consists in joining, in different counts in one declaration, several demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery; as, where a declaration joins a count in trespass with another in case, for distinct wrongs or a count in tort, with another in contract.
Misjoinder of parties, consists in joining as plaintiffs or defendants, persons, who have not a joint interest. When the misjoinder relates to the plaintiffs, the defendants may, at common law, plead the matter in abatement, whether the action be real or mixed; or it will be good cause of nonsuit at the trial. Where the objection appears upon the face of the declaration, the defendant may demur generally or move in arrest of judgment or bring a writ of error.
When in actions ex contractu against several, there is a misjoinder of the defendants, as if there be too many persons made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and, if the objection do not appear on the pleadings, the plaintiff may be nonsuited upon the trial, if he fail in proving a joint contract.
In actions ex delicto, the misjoinder cannot in general be objected to, because in actions for torts, one defendant may be found guilty and the others acquitted.
The omission of some one of the persons who ought to have been made a plaintiff or defendant along with others is called a non joinder.
In actions upon contracts, where the contract has been made with several, if their interest were joint they must all, if living, join in the action for its breach. In such case the non joinder must be pleaded in abatement.
This entry contains material from Bouvier's Legal Dictionary, a work published in the 1850's.
Md. Shahnewaz Zwaki Advocate The Supreme Court of Bangladesh (High Court Division).