Dewey v. Ward , 12 How. Pr. 419 ( 1855 )

By the court—Harris, Justice.

It is a general rule of pleading, both at the common law and in equity, that the declaration or complaint shall contain but a single cause of action. A violation of this rule, in a declaration at common law, is called duplicity—in equity, multifariousness. In either case, the objection is taken by demurrer. It is true, that in some cases at common law, several causes of action might be united in the same suit. Such cases form exceptions to the general rule: and even in such cases the causes of action must be stated in separate counts, so that, in effect, the plaintiff is but prosecuting several suits in one. The rule has not been changed by the Code. Under that system of pleading, it is still a general rule, that distinct and independent causes of action are not to be prosecuted in the same action. The exceptions to this rule are specified in the seven subdivisions of the 167th section. In respect to the causes of action there mentioned, it is declared, that they may be united in the same complaint. But, even in such cases, to authorize such union, four conditions must be met: The causes of action sought to he prosecuted together must all belong to one of the specified classes; all the causes of action must affect all the parties to the action; the causes of action to be joined must not require different places of trial; and, lastly, as in a declaration at common law, containing several causes of action, they must be stated in separate counts. A complaint which contains several causes of action, without meeting all these conditions, is still demurrable, not, indeed, for duplicity, or multifariousness, but upon the ground that “ several causes of action have been improperly united.”

In the ease under consideration, the plaintiff states facts to show that he and the defendants Cornelius Ward and Joel Ward are the owners of the farm described in the complaint as tenants in common, and that the defendants Eleanor Ward and ■Chapman S. Ward have equitable liens upon some of the shares -of the farm. He thus presents a case which entitles him, as he claims, to a partition of the farm, or, in case it cannot be divided, to a sale and a division of the proceeds, according to the equities of the parties as they shall be adjusted by the court. This is one cause of action.

He next presents himself as a judgment-creditor of two of the defendants, Eleanor Ward and Chapman S. Ward, alleging that, as they have no property liable to execution, but have equitable assets and effects, he is entitled to the judgment of the court, directing that such equitable effects shall be applied to the satisfaction of his debt. This constitutes another and a distinct cause of action. Both causes of action are of equitable jurisdiction. The one is what in equity would have been denominated, a bill for partition; the other, a creditor’s bill. They are entirely distinct, and independent of each other. Each, if sustained, will entitle the plaintiff to its peculiar and appropriate relief. Either one may be sustained without the other. They are causes of action not specified in any of the seven classes of action mentioned in the 167th section of the Code. There is, .therefore, no authority to unite them, and there being none, they are, of course, improperly united.

The order overruling the demurrer should be reversed, and an order entered allowing the demurrer, but with liberty to the plaintiff to amend his complaint within twenty days after no- . tice of this decision, upon the payment of the costs of the de- . murrer to be taxed.