author: Monell, J.

text:
    PHILO JOHNSON, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Defendants and Appellants.

      [Decided April 30, 1870.]
    Corporations possess and can exercise such powers only as are expressly conferred upon them by law.
    The power of a railroad corporation to demand fare of a passenger, is not an implied or incidental power, but is derived solely from the statute.
    Where such a corporation (created before the passage of the general incorporating act of 1850) was limited as to fare by its charter, such limitation is not by any fair construction of the forty-ninth section of such general act removed.
    Therefore, held, that the defendants, having demanded and received an amount of fare in excess of the amount limited by their charter, although not in excess of the amount authorized by the general act, had incurred the penalty provided in the act of 1857 for the prevention of extortion by railroad companies.

      Held further, that as many penalties as had been incurred previous to the commencement of the suit might be recovered in one action.
    Before Monell, McCunn, and Freedman, JJ.
    Appeal from a judgment upon the report of a referee.
    This action was brought under the “ act to prevent extortion by railroad companies,” passed in 1857, which provides that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so • received, by the party paying the same.”
    The complaint alleged a separate cause of action against the defendants for asking and receiving a greater rate of fare than is allowed by law on five hundred and twenty-six different times, ■and the referee found the fact to be so, and gave judgment in favor of the plaintiff for the aggregate of fifty dollars for each of such five hundred and twenty-six times, together with the excess paid amounting to $15.01.
    The whole judgment, exclusive of costs, was $26,315.01.
    The defendants appealed.

      Mr. Charles A. Rapallo for appellants.
    The acts of May 12,1846, and February 5, 1850. were improperly admitted in evidence.
    Under the allegations in the complaint the plaintiff was bound to show that the defendants had violated some public law, of which this court would take judicial notice. He could not maintain his action by showing a violation of a private act in the absence of any allegations referring to such act, or setting up a special restriction.
    The acts given in evidence are private acts (Bretz v. Mayor, etc., 3 Abb., N. S., 478, and authorities there cited).
    In Nellis v. The N. Y. Central R. R. Co., 30 N. Y. R., 505, the question arose upon a demurrer, which admitted that the defendant had received a greater rate of fare than that allowed by law.
    There is no averment or proof that the defendants were incorporated under the act of 1846, nor what rate of fare they were allowed to receive.
    Notwithstanding the limitations of fare in the acts of May 12, 1846, and February 5,1850, the defendants were, by the general railroad law, passed April 2, 1850, authorized to collect fare up to three cents per mile (act of April 2,1850, sec. 28, sub. 9; ib., sec. 49).
    The learned referee has entirely misapprehended the grounds upon which this claim was urged before him. They were:
    That the effect of sec. 49 of the general railroad act of 1850 was to confer upon existing railroad companies all the powers and privileges of companies formed under that act, without any reservation or exception.
    That among th% powers said, privileges enumerated and granted to companies formed under the act was that contained in sub. 9 of sec. 28, of regulating the rate of fare up to three cents a mile.
    That, therefore, in so far as and in all cases where sub. 9 of sec. 28 conferred a power or privilege, it was applicable to existing railroad companies, and empowered them to charge up to three cents a mile.
    That in all cases where said sub. 9 operated as a restriction},
      that is to say, in respect to those existing companies which were by their charters authorized to charge more than three cents a mile, the provisions of sub. 9 should not apply, but they should retain the privilege of charging greater rates contained in their special charters, and that the sole object of the exception in the second paragraph of sec. 49 was to preserve that chartered privilege.
    This construction relieves sec. 49 of all incongruity, and gives effect both to the general provision contained in the first or granting paragraph, and to the exception contained in the second or subjecting paragraph of the section.
    The citations, in the opinion of the referee, conclusively show the reason for the exception contained in sec. 49 to be as above stated, viz., that at the time of the passage of the general railroad law there were railroads in operation authorized by their charters to charge more than three cents per mile, and that the legislature did not intend to subject them to the provisions of subd. 9, which as to them would operate as a restriction instead of a grant of power.
    The exception in sec. 49, having been inserted for the protection of companies authorized to charge more than three cents a mile, it would be a manifest perversion to construe it into a qualification or withdrawal of the preceding general grant of power to existing companies to charge up to three cents a mile. Such a construction is inconsistent not only with the language, but the evident intention of the act.
    As before stated, the first or grcmting paragraph of sec. 49 confers upon existing companies all the powers and privileges contained in the act, without qualification. The succeeding or subjecting paragraph exempts existing companies not only from the operation of subd. 9, as a restriction, but also from various other sections of the railroad act, which are omitted in the enumeration of sections applied, and generally from all provisions inconsistent with their charters.
    All these exceptions and exemptions are manifestly intended for the benefit of the existing companies—not for the purpose of abridging the powers granted to them in the first paragraph.

      The power of regulating the rate of fare is one of the most important powers and privileges of a railroad corporation, and must be deemed to have been embraced in the grant of powers and privileges to existing corporations contained in section 49.
    The restriction of the fare of the Central Railroad below three cents was by special act passed subsequent to the general railroad law of 1850.
    The omission of the words “ not inconsistent with their charters ” in the grcmting paragraph of sec. 49, and the insertion of them in the subjecting paragraph, show clearly that the intent was to confer the additional powers and privileges absolutely, even if they involved a modification of the existing charters.
    That this peculiar frame of the section was not accidental but intentional is clearly shown by a comparison with the provisions of the general railroad law of 1848. The 46th section of that act (laws of 1848, page 237) declares that “ all existing railroad corporations within this State shall respectively have and possess all the powers and privileges, and be subject to all the duties, liabilities, and provisions contained in this act, so far as they shall be applicable to their present condition, and not inconsistent with thei/r several charters.”
    There the qualification, “not inconsistent with their several charters,” was applied as well to the grafting part as to the subjecting part of the section. By the amendment in 1850 it is applied exclusively to the subjecting part, a clear manifestation of intention that the grant of power was intended to be absolute, even if inconsistent with the existing charters.
    The argument that the act of February 5, 1850, recognizes the limitation of fare to less than three cents as then subsisting, and is, therefore, inconsistent with the claim now made, falls to the ground as soon as the difference between the language of the railroad act of 1848 and that of the act of April 2, 1850, is pointed out.
    It is conceded that by the act of 1848 the power to charge three cents a mile was not conferred upon existing corporations whose charters fixed a lower limit, for the reason that the power was inconsistent with such charters, and therefore not granted by the act of 1848, which excepted from its grant such inconsistent powers.
    But that concession is perfectly consistent with and fortifies the claim, that when in the subsequent act of April 2,1850, that exception or condition was purposely omitted, and all the powers and privileges of railroad companies formed under this act were unconditionally and without reservation conferred upon existing companies, they could claim that most important privilege.
    The general intent of the railroad law of 1850 manifestly was to give to companies formed under that act no ad/oantage of any kind over existing corporations; to extend to existing corporations all the power’s and privileges of corporations formed under the act, whether inconsistent with their charters or not, and further, to preserve to such existing corporations all special privileges which they enjoyed under their respective charters.
    Even if the plaintiff were entitled to recover, the act of 1857 limits his recovery to fifty dollars and the excessive fare (Laws of 1857, ch. 185).
    The act prohibits the charging of illegal rates. It does not in terms point to separate offences or occasions of overcharge.
    It does not provide a recovery for each., and every time an overcharge is made, or for “ each and every offence,” as in some statutes, but simply that any party subjected to the overcharge may recover fifty dollars.
    This gives but one penalty to each passenger, and does not j ustify a recovery by one party in one action of twenty-six thous- and dollars.
    The act says “ which sum ” (fifty dollars) may be recovered by the party overcharged.
    The amount of the recovery is not regulated by the degree of excessive rate, or the length of time or number of times it has been exacted, but is arbitrarily fixed at fifty dollars.
    It is a penal statute, and must be construed strictly.
    In the People against the N. Y. Central R. R. Co. (13 N. Y. R., 78), the act provided that the company should pay a penalty of “ twenty dollars for' every neglect" of the duty required; to be sued for by the District Attorney. Act of 1850, sec. 39. (Repealed 1854.)
    This language was relied upon by the Court of Appeals to justify a recovery of several penalties in one action.
    In the Supreme Court the authorities are conflicting. In Washburn v. McInroy, 7 Johns., 134; Tiffany v. Driggs, 13 Johns., 253; and Bigelow v. Johnson, 13 Johns., 428, it was held that but one penalty could be recovered when the act did not in terms give several penalties. In Deyo v. Rood, 3 Hill, 527, the court held the other way; but this is the only case to be found to that effect. In the latter case it may be observed, however, that the statute contained a provision that the “penalties ” imposed by the title might be sued for, etc. (1 R. S., 681, sec. 19), and there was no limitation in terms of the sum, which might he recovered in any such action, as in the present case (see, also, People v. Koll, 3 Keyes, N. Y. R., 236; Ingersoll v. Skinner, 1 Denio, 540).
    It is not conceded that various actions for various penalties could be brought, under the act of 1857, at one time, by the same party. Ho party can, at any one time, have a right of action for more than fifty dollars, for that is the limit imposed by the statute upon the recovery of the party complaining.
    The concession was, that if, after an action had been brought, and the rights of the parties in that action fixed, a subsequent offence was committed, another action might be brought for the subsequent offence.
    But however this may be, if a penal statute limits the recovery in an action to fifty dollars, a recovery in that action for a greater sum cannot be justified, on the ground that if the plaintiff had brought several actions he could have recovered in each of them.
    He cannot be allowed in the action brought that which he might have recovered in actions which he did not bring.

      Mr. James R. Whiting for respondent.
    The defendants were limited by their charter to the rate of fare therein prescribed, and neither the general railroad act of 1843, nor the general railroad act of 1850, authorized the defendants to ask or receive any greater fare than authorized by their charter (Chase v. N. Y. Central, 26 N. Y, 524; Nellis v. N. Y. Central, 30 N. Y., 518).
    This is purely a question of construction, and the defendants endeavor to construe the act of 1850 so as to entirely nullify the important exception contained therein (Clarkson v. H. R. R. R., 12 N. Y., 30).
    The defendants are liable, under the act of 1857, entitled “An act to prevent extortion by railroad companies,” to a forfeiture of fifty dollars for each offence against that law, together with excess (Laws of 1857, ch. 185, p. 432).
    The act is not penal, but remedial. It was intended to introduce a new remedy for an offence known to the law and not sufficiently guarded against.
    Before the statute the plaintiff could have recovered the excess by action, and damages such as he had sustained. But the rule of damages was uncertain. This act made certain what was before uncertain, giving the forfeiture to the party as liquidated damages—the first object of the act being to remedy the evil and prevent the extortion, and at the same time fix an exact rule of damages.
    The defendants’ act of incorporation prohibits from charging more than a certain amount; any excess would be unlawful (Laws of 1846, ch. 216, § 17; Griffith v. Wells, 3 Denio, 226).
    The intent of the legislature in enacting the statute was plainly the prevention of extortion by fixing a forfeiture of fifty dollars, which sum, etc., may be recovered by the party paying the same. There is no limitation in the act itself, and the offence under the statute fixes the liability or the right in the party paying the excess to recover the fixed sum of fifty dollars for his damages for that one extortionate charge.

      It would not otherwise he “ an act to prevent extortion,” for if the plaintiff can recover but one penalty, the corporation may soon make up the amount in extortionate rates, and be the gainers in the end.
    Both points are treated exhaustively in the opinion of the referee in-this case.
    These several distinct liabilities of the defendants to the plaintiff can be joined in one suit (City of Brooklyn v. Cleves, Lalor’s Supp. to Hill and Denio, p. 231; Deyo v. Rood, 3 Hill, 527; Cowan’s Treatise, 2d edit., p. 561; 1 Chitty Pl., 181; Langworthy v. Knapp, 4 Abb., 115; Clark v. Met. Bk., 5 Sanf., 655; People v. N. Y. C. R. R. Co., 13 N. Y., 78).
   By the Court:

Monell, J.

The charter of the defendants limited the fare for way travel to two and a half cents a mile during the winter months, and to two cents during the remainder of the year (Laws of 1846, p. 280, § 17).

By an amendment the word “ winter” was stricken out, and in lieu thereof the words December, January, February, and March, inserted (Laws of 1850, p. 14, § 3).

It is conceded that the fare demanded and received of the plaintiff, on each of the five hundred and twenty-six times, was in excess of the fare allowed by the charter of the Company.

But it is claimed that the limitation contained in the charter was removed by the general act for the formation of railroad corporations, passed in 1850, which extended the limitation to three cents a mile.

The forty-ninth section of that act is as follows : “All existing-railroad corporations within this State shall respectively have and possess all the powers and privileges contained in this act and they shall be subject to all the duties, liabilities, and provisions, not inconsistent with the provisions of their charters,, contained in sections nine, thirteen, fourteen, fifteen, sixteen,, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight (except subdivision nine), thirty, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, forty-one, forty-two, forty-three, forty-four, forty-five, forty-six, of this act.”

The excepted subdivision “nine” gives every corporation formed under the act power to regulate the time and manner in which passengers shall be transported, and the tolls and compensation to be paid therefor; but such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile.

By another act, companies were authorized to take for any distance less than a mile the legal fare for one mile (Laws 1857, chap. 185).

Ho corporation possesses or can exercise any powers not expressly conferred by law, except such as are necessary to the exercise of the powers so conferred (1 Rev. Stat., 600, sec. 3).

The power to demand fare or compensation of a passenger on a railroad is not an implied or incidental power, but one derived from the statute, and can be exercised only under the authority of the statute, and is necessarily subjected to all such restrictions and limitations as are imposed by the statute (Head & Amory v. Providence Insurance Company, 2 Cranch, 127; Bentley v. Knowles, 4 Pet., 152; People v. Utica Insurance Company, 18 John. Rep., 358; Halstead v. The Mayor, 3 N. Y. Rep., 430; Perrine v. Chesapeake and Delaware Canal Company, 9 How., 172). In the last case the question was whether the Canal Company could demand toll from passengers passing through the canal, or from vessels on account of the passengers on board; and it was decided that, as no power was given to the corporation to demand toll from passengers, no such power could be exercised or such toll lawfully taken.

In every special charter for a railroad corporation granted in this State, as well as in all the general acts, the power to demand toll or fare from passengers is given in express terms.

Inasmuch, therefore, as no power to demand fare can be implied, and as the power given to the defendants by its charter was limited, it is necessary to examine the forty-ninth section of the general act before referred to, to see whether the construction of it, by the defendants, is correct.

If the section conld be separated so as to be read in detached parts, giving to each part a separate effect, it is possible it could be understood as a grant of all the powers contained in the general act; that is, if the section could be so separated as to make the granting part and the subjecting part each complete in itself.

The first part of the section provides that all existing railroad corporations shall have and possess all the powers and privileges contamed m this act.” Should we stop here, there could be no doubt that not only the power contained in the ninth subdivision of the twenty-eighth section, to regulate and fix the rate of fare at not exceeding three cents, was granted to all existing railroads, but that the legislature intended it should be so; and more than that, that the legislature intended to confer upon such existing companies all the powers and privileges contained in the general act, in addition to the powers and privileges expressly given to them by their charters, even although such additional powers and privileges were wholly inconsistent with the provisions of their charters.

But such a reading of the section would necessarily be to give to the existing companies two, in some respects, wholly inconsistent powers. Thus, all the provisions of the first eight sections, and of the tenth, eleventh, twelfth, twenty-second, twenty-ninth, forty-seventh, and forty-eighth sections, would apply to all railroads existing under special charters in 1850, when the general act was passed. A comparison of the defendants’ charter with the sections of the general act above mentioned will exhibit palpable differences—in the number of officers, manner of electing directors, of filling vacancies, acquiring land, and in other respects—which, if applied to existing companies, would be violations of their charters. It must, therefore, be presumed that the legislature could not have intended to give these incongruous and inconsistent powers to the defendants.

But to follow the section, “ and they shall be subject to all the duties, liabilities, and provisions not inconsistent with the provisions of their charters, contained in sections—” etc. The several sections enumerated respectively confer powers, or impose duties or liabilities, either or both of which the legislature may do. But it would be a novelty in legislation to “ subject ” to a power, as it would be to “ grant ” a duty or liability.

It is not probable, therefore, that in enumerating the several sections which should be applicable to existing companies, it was intended to “ subject ” such companies to any powers or privileges contained in or granted by them, but to subject them only to the duties and liabilities specified; first giving them all the powers and privileges, and then subjecting them to all the duties and liabilities.

If it had been intended to grant more power to existing com-' parties, than it was to subject them to new duties and liabilities, the latter or subjecting part of the section would not have included sections nine, thirteen to twenty-one inclusive, twenty-four, twenty-five, twenty-six, twenty-eight, and thirty-five, all of which contain grants of important powers and privileges, but do not impose any duty or liability whatever, especially section twenty-eight, which is the general enabling section, and includes the power to regulate the fare of passengers.

It is quite evident, therefore, that the legislature intended merely to grant the powers and impose the duties contained' in the specified sections, so that the whole section should read together, as if it read, “ Existing railroad companies shall have and possess all the powers and privileges, and shall be subject to all the duties, etc., contained in sections nine",” etc.

Such a construction of the section will give an intelligible and altogether consistent effect to the exception of subdivision nine of the twenty-eighth section of the general act, by preventing its application to companies existing at that time under special charters, and excluding them from the privileges therein contained.

It may be further said, in aid of this construction, that the legislature probably had in view that prior to the passage of the general act a large number of railroad corporations had received special charters, in many of which the rate of fare was limited, but in some cases exceeding the limit put in the general act. Even the defendants, who by their charter are limited to two and two and a half cents a mile for way travel, are allowed to demand ten cents for any distance under five miles (Laws of 1848, p. 44, sec. 8), á privilege of which their construction of the law would necessarily deprive them.

It is, therefore, proper to assume that the legislature did not intend to disturb or interfere with any of the powers or rights which had before been specially conferred on existing corporations, or to grant any new powers or privileges inconsistent with their charters.

Although, perhaps, no reason can be assigned for the change in the forty-ninth section from the language and purport of the somewhat corresponding forty-sixth section of the act of 1848, which latter section granted the powers and subjected to the duties, only so far as they were applicable and were not inconsistent with their charters, had the forty-ninth section been a transcript of the forty-sixth section, all difficulty in its interpretation would have been removed; but I do not think a reason for a different • construction is to be found in the fact that the legislature which enacted the law of 1850 did not employ as clear language, or frame as connected and lucid sentences to express their intention, as a previous legislature had. Ho doubt the forty-ninth section is illy adapted to fairly express the intention of the lawmakers. It is faulty in construction, and capable of a literal interpretation quite at variance with its probable design. But construing it by the rules applicable to all written law, and getting at its meaning from what must be supposed to have been the intention of its framers, it is quite clear, I think, that it was not intended that any limitation as to fare contained in the charters of existing railroad companies should be removed, and that to effect this the ninth subdivision was excepted.

My conclusion on this branch of the case is, that the fare demanded of the plaintiff was unlawful.

It is insisted, however, that no more than the excess of fare paid by the plaintiff and one snm of fifty dollars can be recovered in this action.

The section of the statute under which the action is brought is, that any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same” (Laws 1857, chap. 185).

There cannot be a doubt that the sum which a railroad corporation shall “ forfeit,” for overcharging a passenger, is a penalty, or at least in the nature of a penalty, and is governed by all the rules applicable to penalties. It is not necessary that a statute, in the language imposing it, should denominate it a penalty. When a statute subjects a person, artificial or otherwise, to a liability to pay money, either for omitting to perform a duty enjoined or for doing an act prohibited, where no liability would arise at common law, he is subjected to a forfeiture of the sum, and it is a penalty for disobeying the statute (Corning v. McCullough, 1 N. Y. Rep., 47; Bird v. Hayden, 1 Robt., 383; Merchants’ Bank v. Bliss, id., 291). In these cases it was held that a personal liability for the debts of a corporation, imposed upon its trustees, was a penalty; yet neither of the words, penalty or forfeiture, are used in the statute. So these words, it has been said, meaning the same, might be used interchangeably (Commissioners of Excise v. Doherty, 16 How. Pr. R., 46).

Similar words are used in many penal statutes. Thus, a tenant for unlawfully removing his goods “ shall forfeit to the landlord ” (2 R. S., 503, sec. 17); and a supervisor, for certain neglect of duty, shall “ forfeit,” etc. (1 R. S., 368, sec. 16). In each of these cases they were held to be penalties (Morris v. The People, 3 Denio, 381; Palmer v. Conly, 4 id., 374 ; 2 N. Y. R., 182). In the last ease it is said that a statute giving the penalty to the aggrieved party is in the nature of a satisfaction for the wrong done.

It is entirely clear, therefore, that this is a penalty imposed by a statute upon railroad corporations for doing a prohibited act, and for doing which no common-law liability would attach.

The next inquiry then is, can more than one penalty of fifty dollars be recovered in the action % Unless there is something in the statute which expressly or by necessary inference limits a recovery, and therefore removes the case from the effect of numerous decisions, the question must be deemed settled by authority.

There is no doubt that, as a general rule, as many causes of action of the same nature as a party may have can be united in the same action. This was the rule before the Code as well as since (Graham’s Pr., 2d ed., 95); and where a separate action is brought for each cause of action, the court will require all to be consolidated into one.

If, therefore, the plaintiff in this case had several causes of action of the same nature, it was proper to unite them.

Although the statute of 1857 does not say there shall be a forfeiture of fifty dollars for each offence, or for each time a company shall demand unlawful fare, yet such result necessarily follows. Any other construction would defeat, or certainly very nearly defeat, the purpose of the statute, which is to “prevent extortion by railroad companies.” For if a single penalty only is incurred, corporations could practise extortion with little fear of consequences.

I cannot entertain a doubt that the legislature intended the statute should be a continuous one, and meant to provide a remedy for each and for every time unlawful fare was demanded ; and the defendants’ counsel was understood to admit that the plaintiff on each occasion, when the penalty was incurred, could have maintained an action for its recovery. But he claims that the penalties cannot be aggregated, as was done in this case, and that the plaintiff in one action can recover only a single sum of fifty dollars.

The Excise Law of 1813 declared that the offender “for each offence ” should forfeit twenty-five dollars; and the eighteenth section of the act provided that, if a recovery was had, such recovery should be a har to all prosecutions for like offences committed before such recovery. Under that statute the court held, in Washburn v. McInroy, (7 Johns. R., 134), that the legislature intended that there should be a recovery for a single penalty only. But in the Bevised Statutes the eighteenth section of the act of 1813 was omitted, and the court came to a different corn elusion in Deyo v. Reed (3 Hill, 527).

The Bevised Statutes provide (1 R. S., 680, § 15) that whoever shall sell, etc., without having a license therefor, “ shall forfeit twenty-five dollars? Under that statute the decision was made in Deyo v. Beed. It was an action by overseers of the poor, and it appeared that the defendant had been guilty of three several violations of the statute. On the trial the court charged the jury that the plaintiff was entitled to recover “ for as many penalties as the proof showed the defendant to have incurred.” The charge was sustained. The cases of Washburn v. McInroy, supra, and Tiffany v. Driggs (13 Johns. Rep., 252), were explained as resting wholly upon the eighteenth section of the act of 1813, which not having been incorporated with the Bevised Statutes left the question to be settled upon ordinary principles (see also Blatchly v. Moses, 15 Wend., 215). These decisions are supported by Young v. The King (3 T. R., 98), and Holland v. Bothmar (4 id., 228).

In my judgment, the case under consideration is not distinguishable from the cases cited which arose under th'e excise law. That law and the one under which this action was brought are in phraseology almost identical. Beither have the words for eaeh offence, and each declares that the offender shall “forfeit,” etc.

But the defendants claim that the amount which may be recovered is controlled by the words “ which sum mazy he recovered,” following the amount of the penalty fixed at fifty dollars. It is, perhaps, sufficient to say, that all statutes which impose penalties provide the manner of prosecuting for them.

The Excise Act in the Revised Statutes (sec. 19) provides that the penalties imposed by the act shall be sued for and recovered by the overseers of the poor.

There is nothing nnusual in the statute, nor is there anything in the construction contended for, which prevents a separate action for each offence. The question, therefore, must be determined upon the ordinary rules governing and regulating the joinder of several causes of action. And I can see no reason why, if the defendants have incurred the penalty on several and different occasions, they may not all be recovered in one action.

The case of The People v. N. Y. Central R. R. Co. (13 N. Y. Rep., 78) was an action to recover numerous penalties, of twenty dollars each, incurred under section 39 of General Eailroad Act, which provides that a bell shall be rung on locomotives when crossing highways, under a penalty of twenty dollars for every neglect. It was objected in that case that the act provided for only a single ringing of the bell, and that if once rung there was no penalty for any other omission. But the court held that, by the fair construction of the act, the penalty was incurred every time the ringing was omitted, and a judgment for twenty-seven penalties in one action was affirmed.

I am unable to discover any difference between an act which affixes a specific penalty for each offence ox for each túrne a prohibited thing is done, and an act, like the one under examination, which omits those words. The latter, equally with the former, attaches to each violation, and affixes the penalty to each offence. Besides, no such distinction is taken in The People v. The N. Y. Central R. R. Co. (supra).

In City of Brooklyn v. Cleves, Hill & Denio (Lalor’s Sup., 231), the action was to recover several penalties for violation of a city ordinance. Kelson, C.J., says: “ It is well settled that several penalties may be included in and recovered on one suit at common law, and there is no statute restriction.” And in Long-worthy v. Knapp (4 Abb., 115), a complaint under an act imposing a penalty of three dollars for every day's neglect, setting forth violations of the statutes on one thousand and ninety-five days, and claiming to recover all the penalties in one action, was sustained.

The cases to which I have referred are sufficient to determine this case. They determine, heyond doubt; that the several causes of action arising or accruing to the plaintiff under the statute may be united in a single action.

After a careful examination and consideration of the two questions in the case, 1 am unable to discover any error in the judgment of the referee.

The action and the result of it are important, and its consequences to the defendants much greater than the trifling excess of fare received from the plaintiff; but they are conseqtiences which result from one statute, for an erroneous construction of another statute.

The judgment should be affirmed.

McCunn, J., dissented.


source: Caselaw Access Project

license: Public Domain

text:
    MARY DURAND, Plaintiff and Appellant, v. JOSEPH DURAND, Defendant and Respondent.

      [Decided April 30, 1870.]
    At the common law no particular ceremony is necessary to the valid celebration of a marriage.
    If the parties are able and willing to and do contract, no form of solemnization is required.
    The statutes of some of the States on this subject alluded to.
    By the statutes of this State, marriage is delated to be a “civil contract,” to which the consent of parties capable in law of contracting shall be essential
    The question of unsolemnized marriages in England reviewed.
    In this country, a declaration of consent in presence of witnesses is sufficient to constitute marriage.
    Where there is no direct proof of marriage, it may be proved by circumstances.
    Such circumstances, however, are not actual proof of marriage, but mere presumptions, and are prima facie evidence only, and may be rebutted by proof that a marriage never took place or was intended or consummated.
    Illicit cohabitation and intercourse is not of itself sufficient to raise a presumption of marriage. There must be a matrimonial cohabitation.
    Where the plaintiff, in an action for a breach of a promise to marry, stated in her affidavit to obtain an order of arrest that for sixteen years the parties had cohabited as husband and wife, representing themselves as married to each other, and had had born to them five children—fields that the plaintiff had raised a presumption of marriage, which, unless repelled by proof, would defeat the action, and she was therefore not entitled to an order of arrest.
    Before Monell, McCunn, and Freedman, JJ.
    Appeal from an order made at special term by Mr. Justice Fithian, vacating an order of arrest issued against the defendant.
    In her affidavit to obtain the order of arrest, the plaintiff stated that she had lived with the defendant as his lawful wife for nearly sixteen years, and until some three months previous to bringing the suit, when he abandoned her and refused to support her, and gave out that he was not her husband, and she had no claim upon him as his wife. During the period mentioned they lived in constant and exclusive cohabitation, and she. has borne him five children. For four years they lived in a hired house and maintained a family; the remainder of the period they lived in hired apartments; that she has always passed and been known as his wife, and has been recognized by him as such. She does not assert that she is “legally” his wife, but leaves that to be determined by the court, but says that she always considered herself his wife. Eecently the defendant has openly declared that she is not and never was his wife, and has now abandoned her.
    Briefly, the allegations are to the effect that for sixteen years the parties have cohabited as husband and wife, both representing themselves as married to each other, and have had born to them five children.
    No marriage ceremony was ever performed.
    There were allegations of a promise to marry made within six years, for a breach of which the action was brought.
    Upon such affidavit an order to arrest the defendant was granted, which, on motion made at special term, was vacated.
    The plaintiff appealed from the order.

      Mr. Edward D. McCarthy for appellant.
    Op motion to vacate an order of arrest, the court will not determine “that the parties to this action were man and wife,” because this would be a decision on the merits of this action, and would practically defeat the action. The court on such motion will only inquire after the facts that constitute the ground of action to determine whether they are within the statute that permits or directs the arrest. All statements in the affidavits not absolutely inconsistent with these facts will be treated as surplusage.
    There are no statements in this affidavit inconsistent with, or contradictory to the facts set forth as grounds of action, and the right of action.
    Cohabitation does not necessarily constitute the relation of marriage, even in New York. Neither does the common rumor of marriage, nor the representation of the parties themselves.

      A contract to marry, yw verba de futuro, though followed by cohabitation, does not make a marriage; there must be a contract in prmsenti, with or without ceremony, and with or without witnesses (4 Comstock, 230; 1 Parker C. R., 378; Cheney v. Arnold, 15 N. Y. R., 345; Hayes v. The People, 25 N. Y. R., 393).
    The court has construed this affidavit more strictly than a pleading would have been construed, and this was error.
    If in a complaint on a question to marry, or on a libel, the facts herein contained were alleged, the pleading would not be demurrable, notwithstanding the fact of cohabitation, etc. There may have been no marriage; it would still be a question of fact to be proven; yet the court here decides that these parties must have been man and wife, and shuts out all further proof.
    Cohabitation for sixteen years, representations by the parties, etc., may constitute marriage, but they do not necessarily. They are evidence of the fact, but not conclusive evidence. But this court, at special term, has held that these facts must necessarily constitute marriage. By no other reason could a complaint on demurrer be dismissed.
    Even a formal ceremony is not marriage. It is evidence, and conclusive evidence of the intention of the parties to contract, but only evidence of the fact itself. Perhaps at the time of ceremony, one of the parties had a husband or wife then living; or was impotent, or within the forbidden degrees, or not of legal age.
    Cohabitation does not even raise a presumption of marriage.
    A promise to marry in foro ecclesiae, is not fulfilled by mere cohabitation, however long continued.
    Though cohabitation and mutual representation have been held marriage for some purposes, the rule is not universal. They will not support an indictment for bigamy (Hayes v. The People, 25 N. Y. R., 393).
    The person aggrieved has the right to full and complete performance of this promise.

      Mr. Aaron J. Vanderpoel for respondent.
    The affidavit upon which the order of arrest was granted does not allege a cause of action.
    It states facts showing the plaintiff to be the wife of the defendant (Hayes v. The People, 25 N. Y., 390: Clayton v. Wardell, 4 N. Y., 230).
    Neither at common law nor under our statute of 1860 can a wife sue her husband for a personal injury (Longendyke v. Longendyke, 44 Barb., 366).
    The affidavit must show “ that a sufficient cause of action exists,” etc. (Code, sec. 181).
    And the practice was the same before the Code (Satterlee v. Lynch, 6 Hill, 288; Seeley v. Crosby, 2 How. Pr., 230).
    The affidavit must not only show that a cause of action exists, but that the case is one of those mentioned in section 179 (Code, see. 181).
    Casting the plaintiff off in the manner alleged is not such a cause of action, whether she is the defendant’s wife or not.
   By the Court:

Monell, J.

This case raises the interesting question of what constitutes a marriage, a question upon which there is much diversity of opinion, and have been many statutory regulations.

The common law requires no particular ceremony to its valid celebration.

If the parties are willing to contract, able to contract, and have actually contracted, no form of solemnization is necessary to consummate the marriage, except the avowal of consent in the presence of witnesses.

In many of the States there are statutory regulations on the subject. In most of them the marriage is required to be made in the presence and with the assent of a magistrate or of an ordained clergyman.

Some of them require previous publication of the intention of marriage and the consent of parents or guardians. In others, a license must be obtained from a judge of the parish, and the marriage celebrated before a minister of a religious sect, in the presence of at least three adult witnesses.

Notwithstanding these statutory provisions, it has quite uniformly been held that marriages are valid, although the directions of the statute may not have been observed, except where the statute declares null and void a marriage not consummated in conformity to it.

But the statute of this State (2 Rev. Stat., 138, § 1) declares that marriage, so far as its validity in law is concerned, shall continue a “ civil contract,” to which the consent of parties capable in law of contracting shall be essential. No form of ceremony is prescribed or required ; but for the purpose of registration and authentication marriages must be solemnized by ministers of the gospel or priests of any denomination; mayors, recorders, or aldermen of cities; judges of county courts, or justices of the peace (ibid., § 8). When solemnized by a minister or priest, the ceremony shall be according to the forms and customs of the church or society to which he belongs. When by a magistrate, no form is required, except that the parties shall declare that they take each other as husband and wife.

The question of the validity of a marriage not solemnized according to the requirements of law is understood to be unsettled at the present time in those parts of the British dominions not included in the marriage act of 26 Geo. 2, c. 33. A formal decision of the Court of Queen’s Bench of Ireland, in favor of such a marriage, but which decision was made against the opinion of at least three of the judges, for the purpose of obtaining a review by the House of Lords, was affirmed by a division of the latter court, leaving the question, therefore, substantially undetermined (Reg. v. Millis, 10 C1. & F., 534).

In this country, however, it is understood that a declaration of consent by persons capable of contracting, made in the presence of witnesses, is sufficient to constitute a valid marriage, unless it be opposed by some statutory regulation rendering marriages void which are solemnized otherwise than by some prescribed form.

Chancellor Kent says (2 Kent Com., 52, 7th ed.), the contract, if made per verba deprmsenti, and remains without cohabitation, or if made per verba defutwro, and followed by consummation, amounts to a valid marriage “ in the absence of all civil regulations to the contrary.”

There is also in many of the States a most just provision that a marriage, duly solemnized to all appearance, shall not be made void by any want of formality, if it be consummated with a full belief, on the part of both or either of the parties, that they were lawfully married.

Such provision, however, is necessary in those States only where some particular form or ceremony is prescribed by statute, and it has not been enacted where a marriage made by the contract of the parties is complete and valid.

Although no form or ceremony for the solemnization is required in this State to render a marriage valid, yet there must be evidence of the consummation of the contract. The consent of the parties must be established. If it be declared before a magistrate, or in the presence of witnesses, it is ordinarily easy of proof. So the confession or acknowledgment of the parties is in some eases sufficient. These are all cases of direct proof. There are, however, cases where no direct proof can be furnished; cases where no ceremony has been performed, or consent declared in the presence of a magistrate or of witnesses, where a marriage may be inferred from circumstances, such as continual cohabitation and reputation as husband and wife; acknowledgment by the parties themselves that they were married; their reception as such by their friends and relations; acknowledging their children as legitimate offspring; and generally any circumstances or act indicating a marriage relation of the parties.

Hone of these circumstances, however, are actual proof of marriage. They do not directly or affirmatively establish it, but from them it may legitimately be inferred or presumed that a valid marriage had been consummated, and, like all other mere presumptions, are prima facie evidence only of marriage.

It is proper, however, to qualify this by the general remark, that other evidence of marriage than cohabitation and repute is required in actions for criminal conversation, and in indictments for bigamy, etc.

The rule of the common law, that no formal ceremony is required in consummating a marriage, and that a marriage may also be inferred from circumstances, has frequently been j udicially recognized and sanctioned in this State. In Fenton v. Reed, 4 Johns. Rep., 52, it is said that a marriage may be proved from cohabitation, reputation, acknowledgment of the parties? reception in the family, “ and other circumstances from which a marriage may be inferred.” A marriage thus established, the court say, is valid, as if made in facie ecclesice. Again, in Jackson v. Claw, 18 Johns. Rep., 346, cohabitation and the declaration of the parties were deemed sufficient ground to presume an actual marriage. These have been followed by numerous cases. Two or three only are cited, viz.: Matter of Taylor, 9 Paige, 611; Clayton v. Wardell, 4 New York Rep., 230; and the more recent case of the People v. Hays, 25 ibid., 390, where the rule is fully supported that the circumstances which have been alluded to, such as cohabitation and general repute, are sufficient to authorize an inference of marriage.

Yet the circumstances which have been mentioned raise a bare presumption of marriage. They are not conclusive, but at most prima facie merely. Every intendment of the law is in favor of matrimony. When it has been 'shown, however celebrated, whether regularly or irregularly, or however proved whether by direct or circumstantial evidence, the law raises a-strong presumption in favor of its legality, nevertheless, as-before stated, it is not conclusive, and the burden- is upon the-objecting party, throughout and in every particular, to prove, against this presumption of law, that no marriage ever was consummated, or was intended to be consummated, or that it was null and void. In Jackson v. Claw, ubi supra, Chief Justice Spencer says: Cohabitation and declaration of the parties afford strong prima facie evidence of a marriage in fact; but in the-present case, the presumption is encountered- by strong facts, producing very great doubt of an actual marriage.

It is, therefore, always competent to repel the inference of marriage, by proof that marriage never took place, or was never intended, or was never consummated; and it may be shown that the parties have designedly, and with mutual understanding, lived together in illicit intercourse, without ever intending to create or establish a different relation between them. As the Chancellor said in Rose v. Clark (8 Paige, 582), the mere fact of a man and woman living together, and, carrying on an illicit intercourse, is wholly insufficient to raise a legal presumption of marriage. The presumption can arise only from matrimonial cohabitation, when the parties not only live together as man and wife, but hold themselves out as sustaining that relation.”

And in Clayton v. Wardell, ubi supra, the court say : The legal presumption of marriage arising from mere cohabitation is at least weakened by the circumstances under which their connection had its origin.”

I think the plaintiff in this case has, by her own showing, made out a very strongjprima, facie case of actual marriage.

She has stated facts and circumstances of a nature sufficient, if unexplained, to warrant the presumption that the relation of husband and wife existed, and had long existed, between the defendant and herself, and which would necessarily cast the burden of repelling such presumption upon any person who has a right to object to the relation thus presumptively established.

Indeed, I may say further than this, that, looking at all the facts and circumstances stated by the plaintiff in her affidavit, which as yet are not any of them controverted by the defendant, it would be difficult to furnish a stronger case of presumptive marriage. And it must require great faith in the plaintiff, (upon whom the burden lies of repelling the presumption which she, by her own testimony, has raised) in her ability to get rid of the effect of such testimony, especially in a-case where the presumptions of law and fact are carried to the very verge to uphold a marriage where marriage was intended by the parties.

In a case of so great doubt, and where the plaintiff has such apparently slight grounds for her action, it was wise, I think, and the exercise of a sound judgment and discretion, to vacate the order of arrest, and I should have contented myself with merely agreeing to an affirmance of the order, had not the learned justice who decided the motion below held, that the facts stated by the plaintiff were conclusive. In that, I think, he was in error, as I have endeavored to show. They are strongly presumptive, but not conclusive; and the plaintiff, notwithstanding she is deprived of the provisional remedy of arrest, may still prosecute the action, and endeavor before a jury to rebut the presumption which she has raised.

The order should be affirmed.


author: Monell, J. McCunn, J.

text:
    ISABELLA HENDERSON, Plaintiff and Respondent, v. EUGENE JACKSON, Defendant and Appellant.

      [Decided April 30, 1870.]
    Where a complaint, in the narration of the facts constituting the cause of action, stated several causes of action, one for false imprisonment and another for malicious prosecution, but they were so blended and run into each other as to leave it uncertain which was the real cause of action—Jield^ that the remedy was by motion to have the causes of action separated and numbered, and that a demurrer for misjoinder of causes. of action was not the proper remedy.
    The rule which requires causes of action to be separated and numbered is not exclusively for the convenience of parties, or merely to furnish them with information concerning the action or defense, but also for the convenience of the court, to assist it in the examination of the questions to be decided.
    Therefore, until a pleading is made to conform to the requirements of the Code and rules, the court will not take upon itself the labor of ascertaining whether two causes of action are or are not stated in the complaint.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from an order made at Special Term, by Mr. Justice Freedman, overruling a demurrer to the complaint.
    The complaint alleged that “ the defendant, on or about the 14th day of August, 1869, by himself and bis servants and agents, arrested and imprisoned the plaintiff against her will, and put her in charge of a police officer, and forced and obliged her to go along the public streets of the city of New York to a certain station-house, and charged her with the crime of petit larceny, and, without any warrant or legal process, caused her to he detained in a vile and filthy cell, without any comforts, conveniences, light, or food, all night, and again caused her to be taken next morning in custody, and, as a part of the same transaction, to a police court held at Yorkville, and before a police magistrate, falsely and maliciously, and without any reasonable or probable cause, made a complaint before such police court against the plaintiff, in which he falsely and maliciously charged the plaintiff with having committed the offence of petit larceny; and that, by such complaint and charge, and as a part of the same transaction, the defendant caused the plaintiff, by process of commitment, to be imprisoned in a cell, in the house for detaining prisoners, for all that day and night.”
    Then followed a statement, by way of aggravation of damages, of the character and duration of the imprisonment. A further allegation was, “ that by reason of such false and illegal arrest and imprisonment, and of such false and malicious charge, complaint, and prosecution, the plaintiff” has been greatly injured, etc.
    The defendant demurred that several causes of action were improperly united.
    The demurrer was overruled, and the defendant appealed.

      Mr. Roger A. Pryor for appellant.
    The complaints are, substantially, identical; and they are obnoxious to criticism for duplicity, as confounding two causes of action in a single count; but this irregularity we waive,—and the specific objection presented by the demurrer is, that the complaints combine causes of action which are not susceptible of union under sec. 167 of the Code.
    It is obvious, on the face of the complaint, that it exhibits two causes of action, viz.: a cause of action for false imprisonment, and a cause of action for malicious prosecution.
    In terms, the complaints state the grounds of action to be: . “ such false and illegal arrest, and such false and malicious prosecution;” and the complaint alleges sufficient facts to sustain either and both of these actions.
    These specific causes of action, viz.: false imprisonment, and malicious prosecution, cannot be united in the same complaint.
    They were not capable of being united under the ancient practice.
    The appropriate form of action for false imprisonment was trespass (2 Bouvier’s Instit., 523, 525; Roscoe’s N. P., 548; 3 Stephens’ N. P., 2018 ; 2 Selwyn’s N. P., 913, et seq.; Buller’s N. P., 22).

      The appropriate form of action for malicious prosecution was case.(2 Selwyn’s N. P., 1060; 2 Greenleaf on Evi., 245; Buller’s N. P., 11, et seq.; Roscoe’s N. P., 443; 1 Archibald’s N. P., 655; 3 Phillips on Evi., 472).
    But trespass and case could not have been combined (Graham’s Prac., 2d edition, 96; Howard v. Banks, 2 Burrow, 1114).
    They are not capable of being united under the present practice.
    The Code, see. 167, classifies causes of action into seven categories, and allows causes of action in any one category to be united in the same complaint.
    Causes of action belonging to different classes cannot be united (Laudan v. Levy, 1 Abb., 36).
    Causes of action under sub. 3, i. e., injuries to persons or property, cannot be united with causes of action under sub. 4, i. e.,' injuries to character. False imprisonment is obviously an injury to person. Malicious prosecution is an injury to character. It is so distinguished by all the elementary writers (Black. Comm., bk. 3, ch. 8, p. 126; 2 Bouvier’s Instit., 508, sec. 2239; 1 Hilliard on Torts, ch. 16, p. 412; Broom’s Comm., 741, English edit., 1869). It is so recognized by the courts (Hull v. Vreeland, 18 Abb., 182; Martin v. Mattison, 8 Abb., 3).
    Hence a recovery in malicious prosecution is a bar to an action for slander (Sheldon v. Carpenter, 4 Comst., 578).
    And on the other hand, a former recovery in an action for false imprisonment is no bar to an action for malicious prosecution; the court holding the two actions to be entirely different, and to stand on different grounds (Guest v. Warren, 9 Exch., 379).
    The objection of misjoinder cannot be obviated by the pretence that these two causes of action “ arose out of the same transaction.” The pleader attempts to so reconcile them, but it is an illogical and clumsy artifice. If the transactions be distinct they cannot be made identical by calling them the same (Fellerman v. Dolan, 7 Abb., 395; Brown v. Buckingham, 21 How., 192; Flynn v. Bailey, 50 Barb., 78).

      “ Transaction means some commercial or business negotiation, not a wrong by violence or fraud ” (Barhyte v. Hughes, 33 Barb., 320).
    It is legally impossible that a cause of action for false imprisonment should arise out of the same transaction with a cause of action for malicious prosecution.
    The specific and essential ground of the former is an illegal arrest. The specific and essential ground of the latter is a legal arrest, but effected maliciously and without probable cause (McKown v. Hunter, 30 N. Y., 627).
    How the same arrest or prosecution cannot be both legal and illegal. The complaint itself shows that the causes of action stand not on the same, but on two separate and distinct transactions, i. e., the action for false imprisonment on the illegal arrest; the action for malicious prosecution on the false accusation and arraignment for crime. Anderson v. Hill, 53 Barb., is directly and decisively in point, and rules the present case. In further illustration of what is intended by the Code as the same transaction, see Burns v. Hevins, 27 Barb., 493; Bogardus v. Parker, 8 How., 303; Askens v. Hearns, 3 Abb., 184; Sweet v. Ingerson, 12 How., 331; Dorman v. Kellam, 4 Abb., 202; Henry v. Henry, 17 Abb., 411; Smith v. Hallock, 8 How., 79; Springsteed v. Lawson, 14 Abb., 328.

      Mr. Henry Brewster for respondent.
    The cause of action described in the complaint is one continued transaction from beginning to end.
    The imprisonment was continuous and unremitted, and was first on an accusation and then on a regular complaint, but all of the same nature and character; in fact, one charge.
    The length of time a party is kept in prison, and the different acts tending to prevent a discharge, do not make a separate transaction ; at most, it would be several transactions connected with one grievance, and therefore constituting a single cause of action, and is within subdivision 1 of section 167 of the Code. This provision is very broad, and was intended for just such cases as this (1 Whit. Pr., 673, 3d ed., and cases cited; Brewer v. Temple, 15 How., 286; Robinson v. Flint, 16 do. 240; See v. Partridge, 2 Duer, 463).
    One action here would necessarily draw in question the whole transaction, and would be a bar to a second action (Sheldon v. Carpenter, 4 Comst., 579).
    The gravamen of the whole case here is manifestly the impris-.. onment of the plaintiff (see, also, Adams v. Bissell, 28 Barb., 382; Xenia Branch Bank v. Lee, 7 Abbott, 293).
    If, however, the court should differ with us on this question, we then say, that even if there are two causes of action, they are properly joined.
    Ho case was cited, nor is there any to our knowledge, where it has been held that false imprisonment and malicious prosecution cannot be joined.
    They were joined in an important and severely litigated case; though the case does not show that the question was raised (Grinnell v. Stewart, 32 Barb., 544).
    Actions not more congruous have been joined, and the joinder upheld (Badger v. Benedict, 1 Hilt., 414; Pugsley v. Aiken, 1 Kern., 494; Bidwell v. Astor Mutual Ins. Co., 16 N. Y., 263; 1 Whit. Pr., 671 to 679).
    Malicious prosecution has been joined with slander, on the ground that both affect character (Martin v. Mathison, 8 Abbott, 3; Hull v. Vreeland, 18 Abbott, 182).
    The grounds of damage for malicious prosecution are three :
    To the person by imprisonment.
    To the reputation by scandal.
    To the property by expense.
    Two of these, the first and third, come under the 3d class in sec. 167 of Code.
    The second ground of damage comes under the fourth class (3 Black. Com. by Chitty, 126, Note 14; Savill v. Roberts, 12 Mod., 208; S. C., 1 Lord Rayno, 374).
    If either of these grounds of damage exist, the action lies. On the first ground, one minute’s restraint is enough (above authority).

      On the second ground, the charge must be one involving infamy or turpitude. An indictment for assault and battery does ' not defame the character sufficiently to support an action on that ground (Byne v. Moore, 5 Taunt., 187).
    Nor does a civil arrest, or prosecution, as in the following cases (Pangburn v. Bull, 1 Wend., 345; Burt v. Place, 4 Wend., 591).
    The action lies where it affects neither person nor character (Smith v. Hixon, Strange, 977; Pangburn v. Bull, supra, there was no arrest.)
    If all the three causes of damage concur, as in this case, two are identical with the trespass to the person, and are within the third class.
    If one point of similarity makes it allowable to join it with the fourth class, surely two points of unity with the third class make it proper to join it with an action in that class.
    There are two reasons to one in favor-of this joinder rather than with slander.
    Sutton v. Johnstone (1 Term Reports) was cited by appellant’s counsel. There the outrage was such, a jury gave £6,000. The party was imprisoned for months, but as the transactions occurred in naval warfare, the action was held not to lie. .
    It cannot apply unless to show what a plaintiff must prove.
    Anderson v. Hill (53 Barb.) is not in point, and is doubtfully reasoned.
   By the Court:

Monell, J.

The facts stated in the complaint, if separated, are sufficient to constitute two causes of action.

The facts first stated constitute a cause of action for false imprisonment; and those secondly stated constitute a cause of action for malicious prosecution.

But the facts thus first and secondly stated are so blended and run into each other, as to constitute the narration of an entire transaction, commencing with an illegal arrest, followed by a false and malicious charge, and concluded by a further imprisonment.

The damages sought to be recovered are for the false imprisonment, as well as for the malicious prosecution.

No opinion appears to have been written at Special Term, and it is not, therefore, known whether the decision was placed on the ground that there was no misjoinder of actions, or that the remedy by demurrer was not appropriate. A demurrer is, of course, a proper remedy where two causes of action are improperly united, and we should be called upon, perhaps, to examine and determine the question of the alleged misjoinder of actions in this case, if. the pleading was in form properly to raise it.

It has always, under our present system of pleading, been a vexata questio, whether facts should be stated according to their legal effect, or as they actually occurred or existed. The pleader in this case has followed the latter course, and given a connected narration of facts, which he claims constitutes the cause of action.

In abolishing all forms of pleading, the Code did not quite leave the pleader to exercise his own judgment as to the manner of framing his pleading. The Code requires that it shall contain a “plain and concise statement of facts.” If two causes of action are united they must be separately stated (Code, § 167) ; and by rule of court must be plainly numbered (Rule 19).

These regulations are not exclusively for the convenience of parties, or to merely furnish them with information concerning the action or defense. They are also for the convenience of the court, to assist it in the examination of the questions to be decided ; and the court has the right, I think, to require that the provisions of the Code, and of their rules, should be complied with by attorneys before it is called upon to determine any question in controversy. For this purpose the Code has provided that irrelevant or redundant matter in a pleading may be stricken out on motion, and indefinite or uncertain allegations may be required to be made more definite and certain.

Without, therefore, looking into the question raised by the demurrer in this case, whether a cause of action for false imprisonment and also for malicious prosecution can be united, it is enough to say, that until the complaint is made to conform to the requirements of the Code and rules of court, we will not take upon ourselves the labor of ascertaining whether two causes of action are or are not stated in the complaint. That question must be determined before we are authorized to say there is a misjoinder, and there should not be left any room for doubt on that subject. Therefore, as a preliminary, and to enable the question of misjoinder to be made certain, a motion should be made to require the causes of action to be separated and numbered. If any matter in the statement of facts is irrelevant or redundant, a motion should be made to strike it out. If it is indefinite or uncertain, it should be amended and made definite and certain.

Those, it seems to me, are the appropriate remedies for this case, and until they are resorted to, and the causes of action are so definitely and clearly stated in the manner prescribed, that the court can at once see that there are two distinct causes of action, a demurrer is not a proper, or if a proper, not the only remedy.

The weight of decision is in favor of this view, notwithstanding the very pointed case of Anderson v. Hill (53 Barb., 238), of which, however, it may be said that the question of the appropriateness of the remedy is not discussed or alluded to in the opinion, although the objection was distinctly taken on the argument of the case.

The cases in opposition are Blanchard v. Strait (8 How. Pr. R., 83), Wood v. Anthony (9 id., 78), Lord v. Vreeland (13 Abb., 195), and Cheeny v. Fisk (22 How. Pr. R., 236). This last case, very singularly, is a General Term decision, made in 1860, of the Supreme Court of the same district that made the decision in Anderson v. Hill (supra), but is not referred to in the opinion in the latter case. In Cheeny v. Fisk the court says: “ If a single count or statement of a cause of action, or one that professes to be that, is found upon examination to contain more than one cause of action, it is. not demurrable, although the two causes, if stated sepa/rately, might not he united in one action, but that in such case the remedy is by motion.” This case decides the precise question raised in Anderson v. Hill, but not passed upon, directly at least, in that case.

As we are not informed of the views of the learned judge who decided this demurrer, we have the right 'to assume it was in accordance with ours, and (hat he held the demurrer not to he the proper remedy.

The order appealed from should be affirmed, with costs.

McCunn, J.

(dissenting). These appeals are from orders at Special Term, overruling demurrers to the complaints for misjoinder of causes of action. The several causes of action are confounded in a single count; but this irregularity the defendant waives, and the precise point presented for consideration is, that the complaints embrace causes of action which are not properly united under the provisions of the Code.

Indisputably the complaints do exhibit two causes of action, viz.: a cause of action for false imprisonment; and a cause of action for malicious prosecution. The injuries alleged are such false and illegal arrest, and such false and malicious prosecution;” and the facts recited are sufficient to authorize a recovery on either ground. The question is, can a cause of action for false imprisonment be united, agreeably to the rules of our present practice, with a cause of action for malicious prosecution ?

Under the common law system of pleading, false imprisonment and malicious prosecution were not susceptible of being combined in the same complaint. The former inflicted an immediate injury on the person; and the appropriate form of redress for this wrong was trespass vi et armis. The latter involved a consequential injury to the character; and the appropriate form of action for this grievance was trespass on the case. But case and trespass constituted an exception to the general rule, that actions ex delicto might be united, and were not capable of being combined (Graham’s Practice, 2d ed., 96; Howard v. Banks, 2 Burrow, 1114).

Instead of relaxing the rigor of the ancient rule regulating the joinder of causes of action, the Code, in pursuance of its distinguishing object to compel the raising precise - and definite issues on the record, superseded the former classification of wrongs with reference to their union in the same action, and in section 167 prescribed a much more narrow and stringent principle of practice. By that section causes of action are divided into seven distinct categories; and the rule declared that causes of action belonging to different classes shall not be united in the same complaint (Landon v. Levy, 1 Abb. Pr. R., 376). Hence, the causes of action comprehended by subdivision 3, i. e., injuries to person, may not be combined with causes of action falling under subdivision 4, i. e., injuries to eha/raoter. Row, false imprisonment is aninjury to the person; while malicious prosecution is an injury to the character (Black. Comm., bk. 3, ch. 8, p. 126; 2 Bouvier Instit., 508, sec. 2239; Broom’s Comm., 741, English ed. 1869; Watson v. Hazard, 3 Code R., 218; Martin v. Mattison, 8 Abb., 3; Hull v. Vreeland, 18 Abb., 182). Being an injury to character, a cause of action for malicious prosecution may be united with a cause of action for slander, as in Watson v. Hazard and Hull v. Vreeland (supra); and with a cause of action for slander and a cause for libel, as in Martin v. Mattison (supra). Being an injury to character, a former recovery for malicious prosecution is pleadable in bar of an action for slander (Sheldon v. Carpenter, 4 Comst., 578). Being an injury to character, a former recovery in trespass for false imprisonment is no bar to an action for malicious prosecution (Gnest v. Warren, 9 Exchequer, 379).

The essential and fundamental distinction between an action for false imprisonment and an action for malicious prosecution, is explained and illustrated by Lord Mansfield, in the leading case of Sutton v. Johnstone (1 Term, R., 544), and by Mr. Justice Emmott, in Brown v. Chadsey (39 Barb., 260). The distinction is recognized and inculcated by every elementary treatise on the common law. The respondents argue that this distinction is obliterated by the Code; but it is only the distinctions between forms of action that are abolished. The Oode does not pretend to assimilate and identify all the various causes of action known to our system of jurisprudence; nor could, such a result be realized by any fiat of legislation, since the difference between causes of action is a difference in nature and substance, and not merely of conventional classification. Indeed the very section of the Code under consideration (sec. 167) recognizes the distinction between causes of action, and upon that distinction bases its regulation as to the joinder of actions. The objection, however, if tenable, would not avail the respondents; for, in terms, they demand redress as well for the injury to their persons by the false imprisonment, as for the injury to their good name, fame, and credit,” by the malicious prosecution.

The respondent’s argument, that the ground of action in malicious prosecution is not necessarily an injury to character, is based upon a confusion of the wrong and the damage, and from the false analogy drawn from the nature of an action for. malicious arrest in a civil proceeding. Unquestionably, if imprisonment, or any other detriment to the person, or even to property, be the natural and legal consequences of the malicious prosecution, it may be alleged and proved in aggravation of damages; but that damage is not the cause and foundation of the action. The wrong, the mjuria, for which the law affords redress by an action for malicious prosecution, is an accusation of crime, made maliciously, without probable cause, and to the injury of one’s reputation. Hence the distinction between an action for malicious arrest in a civil proceeding and an action for malicious prosecution. Injury to character is not an element in the former, its essential ground being that the process of the law has been put in force maliciously, and without reasonable or probable cause; whereas the essential ground of the action for malicious prosecution is the injury to character involved in a false, wanton, and malicious accusation of crime (2 Robinson’s Practice, 594, et seq.; Brown’s Comm., 738; Lord Campbell, C. J, in Churchill v. Tiggers, 3 Ell. & Bl., 937; Leyland v. Taucre, 166 B., 669; De Medina v. Grove, 10 Adol. & El., N. S., 168).

It results, then, that since these several causes of action, viz., false imprisonment and malicious prosecution, are classed under different subdivisions of section 167, they are improperly united in the same complaint, unless it appear that they arise out of the same transaction or transactions connected with the same subject of action (sub. 1, sec. 167).

In these cases the pleader has attempted to obviate the objection of misjoinder, by alleging that causes of action arise out of the same transaction. But this will not suffice. If. the transactions be not in fact identical, they cannot be made one and the same by bare averment. The pleader must exhibit their identity by a recital of facts; and the court must see, from the face of the pleading, that they are in truth but one and the same transaction (Flynn v. Bailey, 50 Barb., 78; Fellerman v. Dolan, 7 Abb., 395; Brown v. Buckingham, 21 How., 192). How, it is obvious, on the plaintiff’s own narrative of the facts of the case, that the two causes of action exhibited in the complaint stand upon distinct, substantive, and independent transactions. In the first instance there was an arrest and imprisonment, without any pretence of legal warrant. That accomplished, the cause of action for false imprisonment was consummate. Afterward, on another day, and at another place, the defendant preferred a criminal charge against the plaintiff, procured her to be arrested on a legal warrant, and to be prosecuted for a criminal offence. She was acquitted, and then (malice and want of probable cause being conceded) the cause of action for malicious prosecution was complete. In a common sense as well as a legal view, here are two separate and distinct transactions. They are connected, and only connected, in sequence of time, as, in truth, are all human events. The transaction out of which springs the action for false imprisonment was ended before commenced the transaction out of which arose the cause of action for malicious prosecution; for the moment the plaintiff was arrested under a legal warrant, the false imprisonment ceased and determined. Every lawyer will see that the transaction which suffices to support an action for false imprisonment must necessarily be different from a transaction which suffices to support an action for malicious prosecution. The transaction which will avail to support the former action, is simply an illegal imprisonment. The transaction which will support an action for malicious prosecution, is a legal arrest, effected maliciously and without probable cause. How, here are evidently two different and distinct transactions, unless we assent to the absurd proposition that a particular transaction, character- ' ized by certain special and essential constituent circumstances, may be identical with another transaction distinguished by wholly dissimilar constituent elements. Nay, not only are the two transactions distinct, but they are inconsistent. In the one transaction there is a legal arrest, in the other an illegal arrest; and, except the same transaction may be, at one and the same time, both legal and illegal, it is impossible to affirm that these transactions are identical. Hence the legal impossibility that an action for false imprisonment can arise out of the same transaction with an action for malicious prosecution. In Sutton v. Johnstone (supra), Lord Mansfield, delivering the judgment of the Exchequer Chamber, says : “ There is no similitude or analogy between the action of trespass for false imprisonment and this kind of action, i. e. malicious prosecution; an action of trespass for false imprisonment is for the defendant’s having done that which, upon the stating of it, is manifestly illegal. This kind of action, i. e. malicious prosecution, is for a prosecution which, upon the stating of it, is manifestly legal.” Thus, it is apparent, that the present actions are ruled by the principle propounded in Smith v. Hallock (8 How. Pr. R., 73), Sweet v. Ingerson (12 How., 331), and Springsteed v. Lawson (14 Abb., 328), namely, that though the causes of action arise out of the same transaction, they cannot be united in the same complaint, if they be inconsistent in their nature. The incompatibility of malicious prosecution and false imprisonment is evident by the fact that the very circumstance which is essential and indispensable to the support of the one, would be fatal to the maintenance of the other. Eor, since the action for false imprisonment is based upon the illegality of the arrest, the very moment it appeared that the arrest was authorized by law, that instant the action falls to the ground. But the action for malicious prosecution necessarily assumes and implies that the prosecution was legal, else in contemplation of law there never was any prosecution—the gist of the wrong being, not an illegal prosecution, but a legal prosecution instigated maliciously and without reasonable or probable cause. So that the appropriate allegations and proofs by which these respective actions are to be sustained are contradictory and irreconcilable. Assuming the two actions to proceed on the same transaction, evidence sufficient to support the one must necessarily be fatal to the maintenance of the other. The two actions are plainly inconsistent, and cannot be sustained on the theory that they arise out of the same transaction.

In the foregoing argument the most liberal meaning and effect are conceded to the word transaction employed in section 167 of the Code. But, it is proper to remark that a very respectable authority restricts the legal sense of the word to “ some commercial or business negotiation,” and denies its application to a tortious wrong (Barhyte v. Hughes, 33 Barb., 320); so in Smith v. Ingerson, and Springsteed v. Lawson (supra), it was held that an action for a breach of warranty on the sale of a horse, and an action for deceit on the same sale, could not be united in one complaint—the two causes of action not arising legally out of the same transaction. And in the former case, the court observed that the tendency of the courts is to restrain rather than enlarge the operation of section 167. Upon the principal points above discussed, the case of Anderson v. Hill (53 Barb., 238) is a direct and controlling authority, controlling as giving the deliberate and unanimous judgment of a General Term constituted of very eminent jurists. That case was this : The defendant assaulted the plaintiff, and, in the very act and instant of the assault, denounced the plaintiff as a “ thief.” Hot only were the assardt and slander simultaneous, but they originated in the same motive. Yet the court sustained a demurrer for misjoinder on the grounds that one cause of action was for injury to the person, and the other for injury to the character; and that they could not be said to-arise out of the same transaction, since the facts constituting the, one cause of action were essentially different from the facts constituting the other cause of action.

The demurrer under consideration is sustained as well by the practical interests of administrative justice as by the technical principles of law. The function and end of all pleading is; to raise distinct issues on the record, so that confusion and embarrassment may be avoided at the trial, and the parties be admonished in advance of the allegation they are to support or to defeat (1 Chitty’s Pleading, 201). But how is it possible that the defendant, in these actions, can come prepared to meet the issues, when he is confronted with inconsistent charges ? How is it possible that the jury can decide the issues intelligently, when the proof which is essential to the support of the one action would be absolutely fatal to the maintenance of the other—when, for example, in one contention they would have to find the arrest was without warrant of law, and in the other that the imprisonment was in pursuance of legal authority ? How could the judge rule upon offers of evidence, when testimony which would be admissible in support of the claim for malicious prosecution would be irrelevant and immaterial to the cause of action for false imprisonment ? It is no answer to say that the plaintiffs should be compelled, at the trial, to elect on which cause of action to stand; for, beside the embarrassment to the defendant of apprising him only in the instant of trial of the demand he would have to meet, I see nowhere in the Code authority to oblige the plaintiffs to such election (Smith v. Douglass, 15 Abb., 266; Blossom v. Barrett, 37 N. Y., 436). But the Code, in section 144, does make specific provision for correcting a complaint in which causes of action are improperly united. The demurrer is well taken; and the order overruling it must be reversed, with leave to plaintiffs, on payment of costs, to amend their complaints by stating one cause of ■action.


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    DANIEL BELTON, Plaintiff and Respondent, v. EDWARD W. BAXTER et al., Defendants and Appellants.

      [Decided April 30, 1870.]
    Where the evidence of the defendant’s negligence is conflicting, it is error to take it from the jury, and to determine as a matter of law that there is negligence.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from a judgment and from an order denying a motion for a new trial.
    This action was to recover damages for injuries sustained by the alleged negligence of the defendants’ servant. In the early evening the plaintiff was passing through Fourth street. As he approached the Second avenue he saw a street-car coming up. It partly stopped at the lower crossing, when the defendants’ servant, driving a horse attached to a cart, behind the car, turned out to pass the car. The plaintiff attempted to cross the avenue in front of the car. He crossed beyond the railroad track, when he was struck by the defendants’ cart and injured.
    The case was tried before Chief-Justice Barbour and a jury.
    The defendants requested the court to submit the question of the defendants’ negligence to the jury, which was refused ; and the chief-justice charged the jury that “ as matter of law there was negligence on the part of the defendants.”
    A motion was made at Special Term for a new trial, on the ground of surprise and of newly discovered evidence, which was denied.

      Mr. George W. Paine for appellants.
    A new trial should have been granted.
    The evidence of the carman in relation to the vicious nature of the horse was a surprise to the defendants, there being no allegation of such, facts in complaint, and no knowledge of the same on the part of the defendants,
    A new trial may be granted where a party is surprised by the unexpected adverse testimony of his own witness (Oakley v. Sears, 7 Robt., 111; Graham & Waterman on New Trials, 225).
    When it clearly appears that a witness makes a mistake in giving his testimony upon a material point in the cause, the court may grant a new trial (Coddington v. Hunt, 6 Hill, 595).
    The question as to the negligence of the defendants should have been submitted to the jury, because there was a conflict of testimony in relation to the existence of those facts essential to prove negligence on the part of the defendants (Seabrook v. Hecker, 4 Robt., 344; Ernst v. Hudson River R. R. Co., 35 N. Y., 9; Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y., 49; 13 N. Y., 3 Kern., 533).
    The only evidence of negligence was—
    As to the rate of speed at which the carman was driving when the accident occurred.
    As to the vicious character of the defendants’ horse.
    The complaint should have been dismissed, on the ground that the plaintiff’s negligence contributed to the accident.
    In relation to the conduct of the plaintiff there was no conflict of evidence; and where the facts are uncontroverted, the question of negligence is one of law for the court (Gonzales v. New York & Harlem R. R. Co., 38 N. Y., 440; Dascomb v. Buffalo & State Line R. R. Co., 27 Barb., 222).

      Mr. Stephen A. Walker for respondent.
    The ruling of the learned justice, in denying a motion to dismiss the complaint, was correct.
    The only remaining exception is to the refusal of the presiding justice to charge the jury, that upon the evidence submitted defendants’ negligence was a question for the jury.
    A judge has the right thus to charge in a proper case. On uncontradicted facts the question of negligence is a question of law for the court (Gonzales v. Harlem R. R. Co., 38 N. Y., 440; Dascomb v. Buffalo and State Line R. R., 27 Barb., 223).
    This rule is asserted by those cases which limit and define it (Ernst v. H. R. R. R., 35 N. Y., 1, and cases cited; Wolfkiel v. Sixth Avenue R. R., 38 N. Y., 40; Keller v. N. Y. Central R. R. Co., 24 How., 173).
    The motion for a new trial was made on the grounds of newly discovered evidence and of surprise, and was properly denied, The defendants’ affidavits assert in general that thé testimony of their witness Johr, as to the fractious character of his horse, was a surprise to them, they theretofore having supposed him to be a quiet animal, and the driver’s affidavit asserts that this discovery of an evil disposition was made subsequent to the accident, but. of course, prior to the trial.
    Such evidence cannot be called newly discovered. The fact of viciousness was stated by defendants’ own witness at the trial-That defendants themselves did not know it, is a mere immaterial negative. They were in court, and if. thought necessary, could have testified to their ignorance upon the subject.
    Hewly discovered evidence must be such as ordinary vigilance would not have disclosed. Hot cumulative. And material (Oakley v. Sears, 7 Rob., 112).
    In a case of real surprise from the testimony of one’s own witness, proof must be furnished that on a new trial the contrary can be proved by other witnesses (Phenix v. Baldwin, 14 Wend., 62).
   By the Court:

Monell, J.

The chief-justice, in recapitulating some of the evidence to the jury, stated to them that it was shown “that the defendants’ cart and horse were being driven behind a railroad car, up town. When they got in the neighborhood of the lower crossing of Fourth street the railroad car slackened its speed, and there the defendants’ driver turned his horse, he says, slowly out of the track. He had been driving in the track immediately behind the car. From that place (the lower crossing of Fourth street) to the upper crossing, or a few feet beyond it, he had made such speed that his horse’s head was about even with the heads of the horses of the railroad car. Judging from all the circumstances—considering that it was about the time of the lamps being lighted, that it was at the crossing of the streets, that the horse was skittish, hard-mouthed, and was controlled by only a common single bit (the driver testifying that it afterwards became necessary to put on a United States cavalry bit), and that the driver, by turning out to the east side of the railroad car, was in a position where he could not so well see parties coming from the west side—considering all these circumstances, the court'decides, as matter of law, that there was negligence on the part of the defendants. That question, therefore, is withdrawn from the consideration of the jury. It will be your duty to assume that the defendants were negligent in this act, which caused the accident—that the accident was caused, primarily, by their negligence.”

It must have been assumed by the chief-justice in this case that the evidence in support of the facts which he held to be conclusive of the defendants’ negligence was wholly uncontradicted. If that were indeed so, and such evidence was sufficient to convict the defendants of negligence causing the injury, there was no error in withdrawing that question from the consideration of the jury.

But I think the chief-justice was mistaken in assuming that there was no conflict in the evidence. The only fact which tended to establish the defendants’ negligence was the rate of speed at which the defendants’ servant was driving at the time of the collision. The other and only other fact stated, namely, “that the horse was skittish, hard-mouthed, and was controlled only by a common single bit,” was not supported by any evidence of knowledge in the defendants.

In regard to the speed of the defendants’ horse the plaintiff testified, It was going so fast I could not get in front of the cart; the cart was going so fast I could not get on my feet.” Again, “ I don’t know that I can state how fast defendants’ horse was going; he was going considerably faster than the car horses; he must have been, to keep up with them. When I crossed the railroad the car was going faster than usual, and the cart was going faster than the car.” One of the plaintiff’s witnesses testified that when the plaintiff was being dragged, “ the cart was going pretty fast—faster than a railroad car usually runs.”

On the defense, however, the driver of the defendants’ cart, in answer to the question at what rate he was going at the time, said, “ A very good fast walking horse could go as fast as I did then.” He also testified, When my cart struck the plaintiff, I was going between four and five miles an horn’.”

The chief-justice must have overlooked this evidence in assuming that the negligence of the defendants was established as a matter of law; for it seems to me that if the jury had found (had the question been submitted to them) that the rate of speed of the defendants’horse was such as was testified to by the driver, it would have negatived the only piece of evidence having any tendency whatever to convict the defendants, and they would have been entitled to a verdict.

I am clearly of opinion, therefore, that the withdrawal from the jury of the question of the defendants’ negligence was erroneous, and for that reason the judgment should be reversed and a new trial had.

We do not, as it is not necessary, express any opinion as to the sufficiency of the proof of the defendants’ negligence, nor in regard to any concurring negligence there may have been on the part of the plaintiff. These are left open questions.

Judgment reversed and new trial granted, with costs to appellants to abide the event.