Moore v. Smith & Marshall , 10 How. Pr. 361 ( 1855 )

Dean, Justice.

The taking of sufficient goods of the defendant, on the execution, to satisfy the same, is in itself a satisfaction thereof, and would make the constable liable to the plaintiff in the execution; the neglect to return the execution according to its requirement, will subject the constable to an action for such neglect; and the withholding of the money collected on an execution, after the return day thereof, is also a cause of action against a constable. It was my impression, on the argument, on my recollection of the statute, (2 R. S. 253, § 159,) that for the neglect to return the execution, the constable only was liable, and not the surety; and therefore that there had been an improper joinder of causes of action. But, on examination, I find it has been decided (Sloan and others agt. Case, 10 Wend. 370) that the sureties are liable for the mere neglect to return the execution. Admitting, therefore, that there are three distinct causes of action in this complaint— and there certainly are allegations in reference to three—are they such actions as may not be joined in the same complaint 7 I think not. They affect all the parties to the action; they require the same place of trial, and they all arise out of transactions connected with the same subject of action, viz., the liability of the constable to the plaintiff on the execution delivered to him. I think, therefore, that these causes of action, separately stated, might be united in the same complaint.

They are not, however, separately stated; and it is doubtful whether the plaintiff’s attorney intended to state more than a single cause of action, viz., the neglect to return the execution. He has, however, by alleging the levy on sufficient property to satisfy the execution, and the detention of the money received thereon, inserted allegations immaterial to substantiate his claim for a neglect to return the execution, and must be deemed to have intended these as substantive causes of action. The complaint is, therefore, liable to the objection that the causes of action are not separately stated.

But can the defendants, on this demurrer, avail themselves of this defect 1 The demurrer (§ 145 of the Code) “ must distinctly specify the grounds of objection to the complaint.” The ground stated in this demurrer is, “ that several causes of action are improperly united therein.” That is, that tort and contract, or some other of the causes of action, which cannot be tried together, are united; and not that they are not separately stated in the complaint.

This demurrer, therefore, must be overruled; but, as the complaint is defective for the reason stated, without costs;— the defendants to have leave to plead within twenty days after notice of the entry of the order on this decision. The plaintiff is also at liberty to amend his complaint within said twenty days without costs, by separately stating his causes of action; and in case of such amendment, the defendants to have twenty days, after service" of a copy of such amended complaint, in which to plead thereto.