tion is that he destroyed it animo revocandi, and that the declarations of the testator in his last illness are admissible in evidence to strengthen or repel the presumption.1 In framing the petition to establish a lost or destroyed. will, the plaintiff should allege that, on a day named, the testator duly made in writing and signed a will, which was duly attested by (two 2) witnesses in his presence, at his request. Then should follow a copy, substantially, of the alleged will. Second. That said will was deposited with —, and was supposed by the testator to be in existence at the testator's death, but has been lost or destroyed, either by accident or 1 Betts v. Jackson, 6 Wend. 173, Chancellor Walwoth says: "There can be no possible doubt as to the validity of a will or codicil duly executed, although it be destroyed in the lifetime of the testator, if so destroyed by fraud or mistake, and without his consent. And if it was not intended to be destroyed by him, and is actually in esse at the time of his death, the rights of the legatees or devisees under the will cannot be changed by any loss, destruction or suppression of the testamentary paper, provided the 'contents thereof can be sufficiently ascertained to preserve and enforce those rights in a court of justice. Even where the exact contents of a will cannot be ascertained, if it has been suppressed or destroyed by a person interested in opposition thereto, the court or jury in odium spoliators will be authorized to presume many things as against the party who has been guilty of the fraudulent act. Here the will was last seen in the possession of the testator, and it is proved that it could not be found immediately after his death. Is then the presumption a reasonable one that the testator, who had a perfect right to destroy the will, and who had no interest to keep it if he changed his mind as to the disposition of his property, has done the act, or is it more reasonable to suppose it has been done by some other person in fraud of the rights of the devisees and by perpetrat ing a crime which the law abhors?" And the court reached the conclusion, there being no evidence to repel the presump tion, that the law presumed that the tes tator had destroyed the will. The loss or destruction of a will before the death of the testator may be shown by parol evievidence. Tynan v. Paschal, 27 Tex. 286. The loss or destruction of a will may be proved by circumstantial evidence. Schultz v. Schultz, 35 N. Y. 653, and the declarations of the testator concerning it nearly to the time of his death, are competent evidence in regard to the existence of the will. Youndt v. Youndt, 3 Grant, 140. A substantial copy of the will alleged to be lost or destroyed is generally required to be set out in the pleading. Happys' Will, 4 Bibb. 553; Jackson v. Russell, 4 Wend. 543; Smith v. Steele, 2 Harr. & McH 112. Where, however, this cannot be done, parol proof of the contents is admissible. Graham v. O'Fallon, 3 Mo. 507 And proof which satisfies the conscience of the jury is sufficient to rebut the legal presumption of revocation Kitchens v. Kitchens, 39 Ga. 168; 6 Waits. Act. & Def. 385-386, and cases cited. 2 The number of witnesses must necessarily conform to the statute of the state were the will was executed. fraudulently, before his death, without his knowledge or consent, or fraudulently or by accident since his death. Third. Plaintiff has made a thorough search for said will in all places where there was reason to believe it might be left or deposited, but has been unable to find the same. The plaintiff therefore prays that the will above set forth be declared the true and lawful will of, testator, and for such other relief as in equity he may be entitled to receive. may CHAPTER VI. JOINDER OF CAUSES OF ACTION. Joinder under the common law and chancery practice. At common law a count in assumpsit cannot be joined with a count in trover for the reason that one action is upon contract and the other in tort. If, however, in the cause of action first named the plaintiff has declared in case, as in some instances, both case and assumpsit will lie then; he may join the count in trover, because both actions sound in tort. 1 So, although debt or assumpsit will lie upon promissory notes or other instruments without a seal for the payment of a definite sum of money, yet, a count in debt cannot be united with a count in assumpsit, for the reason that the form of the judgment is not the same in each case. 2 So counts in account, assumpsit, covenant or debt cannot be joined in the same declaration, although all arise upon contract, because, of the different forms of the pleading and judgment. In like manner, a count in trespass and one in case cannot be joined, because there is no formal affinity between them. 8 The pleader, however, may join counts on different promissory notes when the maker is the same and they are all payble to the plaintiff. In other words, different causes of action in assumpsit may be joined. 4 So breaches of the various covenants in a deed may be joined in the same action. 5 1 Chitty's Pl. (ed. of 1876) 199; Bliss Code Pl. § 124. 1 Chitty's Pl. (ed. of 1876) 200; Bliss Code Pl. § 124. 3 Bliss' Code Pl. § 124; 11 Am. & Eng. Ency. of Law, 993, and cases cited. (340) 4 Berry v. Ferguson, 58 Ala. 314; Hanger v. Dodge, 24 Ark. 205; Little v. Blunt, 13 Pick. (Mass.) 473; Wilson v. Tucker, 9 R. I. 137. 5 Brady v. Spruck, 27 Ill. 478; Bendernagle v. Cocks, 19 Wend. 207. And in debt the plaintiff may declare upon several obligations in the same declaration. 1 And, generally, actions of the same class may be joined. The result of all these cases seems to be that whenever the same plea may be pleaded and the same judgment given in all the counts of the declaration; or whenever the counts are of the same nature, and the same judgment is given on them, although the pleas be different, as in the case of debt upon bond and on assumpsit, already mentioned, they may well be joined. 2 In chancery, the practice is to join distinct claims of a similar nature, between the same parties, and involving similar principles and results. 8 The several codes Joinder of actions under the code. substantially agree as to the causes of action that may be joined. The original section of the Ohio code on the subject is as follows: The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either of the following classes: First. The same transaction or transactions connected with the same subject of action. Second. Contracts, express or implied. Third. Injuries, with or without force to person and property, or either. Fourth. Injuries to character. Fifth. Claims to recover the possession of personal property, with or without damages for the withholding thereof. Sixth. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same. 'Cabell v, Vaughan, 1 Saund. 288; 2 Coryton v. Lithebye, 2 Saund. (5th ed.) p. 117 L. 3 Story's Eq. Pl. 531 et seq.; Bliss Code Pl. § 124. Seventh. Claims against a trustee by virtue of a contract or by operation of law. The causes so united must belong to one of those classes;1 must affect all the parties to the action, and not require different places of trial, and each cause is to be separately stated and numbered. The words "cause of action," used in the code, evidently refer to what constitutes a cause of action either at common law or in equity. The forms of action are abolished, but there must still be such a statement of facts as shows a liability of the defendant in favor of the plaintiff. It is very important to keep in view what constitutes an entire cause of action. Thus, all debts due upon one indivisible contract constitute but one cause of action. If there are demands upon two or more separate and distinct contracts, each will constitute a distinct cause of action, which should be separately stated and numbered, as an action upon a bill of exchange and promissory note. Here are two causes of action. So with two or more promissory notes. All damages that accrue from a single wrongful act, as a rule, constitute but one cause of action. If a plaintiff has a claim arising out of a single transaction, whether of tort or contract, and brings an action for a part of the same, the judgment will be a bar to a recovery for the residue. 2 The codes of Kentucky and Arkansas omit the provision for joining legal and equitable causes and cases arising out of the same transaction or transactions, or connected with the subject of the action. The code of Oregon abolishes only the distinctions between actions at law. There are some variations in some of the other codes in regard to particular causes of action, but generally the Ohio code in this respect has been substantially followed. 3 L McCarty v. Fremont, 23 Cal. 197; 2 Smith v. Jones, 15 Johns. 229; syllabus, "Where a party hath several demands or existing causes of action growing out of the same contract, or resting in matter of account, which may be joined and sued in the same action, they must be joined," or the judgment will be a bar to a further recovery. 3 Bliss Code Pl. § 112; see also a valuable article in 11 Am. & Eng. Ency. of Law, 1001. |