New London City National Bank v. Ware River Railroad

Poster, J. To the declaration in this case, consisting of two counts, the defendants demur specially; setting forth three causes of demurrer to the first count, and one cause to the second. The first cause of demurrer assigned to the first count is, that it is, in form, a count in case, whereas it should be, in form, a count in debt. The defendants in this count are summoned to answer to the plaintiffs “ in a plea of the case,” &c. No doubt these are apt words to precede a count in case, but they are not conclusive or controlling. If found preceding a count in another form of action, they are quite powerless to change that form into an action on the case. The contents of a paper [547] must determine its character, and .properlyits name ; notits name its character. The pleader goes on to allege, that on the first day of June., 1878, the defendants were indebted to the plaintiffs in the sum of $240, payable in gold coin, the same being for semiannual interest due and payable on certain mortgage bonds of the defendants, [particularly described in said count,] the same being eight in number, as by certain coupons or interest warrants ready in court to be shown will appear—that on said first of June, 1873, the plaintiffs were and now are, the bearers, holders, and bond fide owners of said coupons or interest warrants, which are in the words and figures following :—[they are then severally set out at length]. It is then averred, that on the first of June, 1873, the plaintiffs made diligent search for the agency of the defendants in tlie-«ity of New York, where said coupons were made payable* tá which to present the same for payment, but could find no such agency, and no such agency then existed in said city. And that afterwards, on the third day of September, 1873, the plaintiffs presented said coupons to the treasurer of the defendants, at his office, &c., and demanded payment of the same, and the defendants, by their treasurer, then and there refused to pay the same, nor have the defendants ever paid the same, though thereto often requested, whereby an action has accrued to the plaintiffs to have and demand of the defendants said sum of $240 in gold coin. That this is a count in debt admits, we think, of no possible doubt. The second cause of demurrer to this count is, that it is double, in that, if it shows any cause of action, it shows eight several and distinct causes, and seeks to recover in this suit upon each and every of said causes of action, and not upon one only. ' Duplicity in pleading is but a defect in form, and the rules regarding it are now applied by courts less rigorously than in former times. The case of Hotchkiss v. Butler, 18 Conn., 287, was an action of ejectment for several distinct parcels of land. [548] There was but one count in1 the declaration, and the defendant demurred for duplicity. The court held the declaration sufficient. Judge Storrs, in giving the opinion of the court, page 289, says:—“ A defect of this description is always deemed to be one of mere form, and there has evidently been, for a long time, a disposition in the courts to relax the rule. Indeed exceptions to it, in several actions, have been made in modern times, ... in trespass quare clausum fregit, with a diversis diebus et viaibus, and also in general indebitatus assumpsit, in each of which, several distinct causes of action may be embraced in one count.” The case of Tucker v. Randall, 2 Mass., 283, was an action of assumpsit on a promissory note. The writ bore date November 15th, 1803. The declaration counted on a note of hand, dated the 10th of September next preceding, two months before the date of the writ, in which the defendant, for value received, promised the plaintiff to pay him or order ninety-five dollars, ten dollars per month for the next nine months, and five dollars for the tenth month from the above date. There was then an averment that more than two months had elapsed since tjie date of said note, and that the defendant, though since requested, had not paid either of said monthly payments, and that he then became liable to pay the said sum of ninety-five dollars, and in consideration thereof, promised to pay the same on demand. To this declaration there was'a demurrer and joinder. The judgment was for the plaintiff to recover the two installments due on the note, the court rejecting as surplusage the allegations as to the liability to pay the full amount of the note. This declaration seems as clearly obnoxious to the charge 'of duplicity as the declaration at bar. No objection on that ground however was made to it, either by Judges Parker and Sedgwick, or by Chief Justice Parsons, each of whom gave opinions in favor of the plaintiff, Sewall, J., concurring. The claim of the defendants, that these coupons, not being large enough in amount severally to be within the jurisdiction of the Court of Common Pleas, cannot thus be united in [549] one count, and so give jurisdiction, is fully answered by the case of Main v. First School District, 18 Conn., 214. The second count of the declaration in that case alleged that the defendants were indebted to the plaintiff in the sum of $67.50, for the wages and salary of the plaintiff&c., and in the further sum of $67.50 for the work, labor, care, and diligence of the plaintiff before that time done, &c., and in the further sum of $67.50, for money had and received by the defendants for the use of the plaintiff. A promise and breach, in the usual form, were then alleged, concluding to the damage of the plaintiff in the sum of $100. The suit was originally brought to the County Court, and appealed to the Superior Court. That court decided that it was not appeal-able, and remanded it to the County Court. A writ of error from that decision was brought to this court, and it was held, that where in a single count the aggregate amount of several debts was more than seventy dollars, though neither, separately, was of that amount, the Superior Court had jurisdiction of the case, and so the decision below was pronounced erroneous. That certainly seems conclusive on this point. One important reason for holding duplicity in pleading a fault is, that it tends to prolixity. Holding this cpunt bad for duplicity might make it necessary to count on each of these coupons separately. That would promote, rather than prevent, the evil sought to be remedied. If each of these coupons must be counted upon separately,, beside the evil of prolixity thus occasioned, the court below might be deprived of its jurisdiction, and so an evil far more serious than prolixity, a multiplicity of suits, which it is said the law abhors, would certainly become necessary. The only remaining cause of demurrer to this count is, that no profert is made of the bonds or writings obligatory mentioned in it, and no excuse offered for that omission. It is a sufficient answer to this claim to say, that the action is not brought on these bonds, but oh the coupons, a separate and independent cause of action. No profert of the bonds therefore was necessary. The demurrer to the second count in this declaration Is [550] ■well taken, as that conntis fatally defective on several grounds. The first count however seems to us sufficient, and we therefore advise the court below to overrule the demurrer to that count, and render judgment for the plaintiffs. In this opinion the other judges concurred.