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Forsyth agt. John and James Edminston.
intending the very same matter to which the assignor testifies, and no other; otherwise, why did they use the words at all? If in any case this construction gives the plaintiff an undue advantage, we must regret it, but we cannot, I think, provide the remedy.
It will rarely be true, when a sale and payment are part of the same transaction, that the assignor can be so examined by the plaiptiff as not to open the door to the defendant to testify to all that took place at the tiine: for, if leading questions are not permitted, and the assignor is examined in relation to the transaction between himself and the defendant generally, it would seem, even under the view I have above expressed, that the whole transaction would be the matter testified to, and that the defendant could testify to the whole. But, be this as it way, I cannot find warrant for saying that he may testify to other facts, occurring at another time, forming no part of the transaction testified to, merely because the legal effect of the assignor's evidence is to charge him with a liability, which he can only avoid by showing subsequent payment, release, or by testifying to his infancy, or other matter entirely consistent with what the assignor has sworn to, but going to new matter in avoidance.
I am of opinion that the judgment should be reversed.
FORSyth agt. John and JAMES Edminston.
A complaint, whose allegations contain the substance of several distinct causes
of action, must be so constructed that the causes of action will be separately stated, and plainly numbered. In an action on the case, in nature of a conspiracy, the damage is the ground of the action, and not the conspiracy. One may be sued alone. If several be sued jointly, there may be a verdict and judgment against one, although there be a verdict in favor of the others. If a complaint, in such a case, state facts, which constitute several causes of ac
Forsyth agt. John and James Edminston.
tion, on either of which the plaintiff can recover, though he should fail as to all the others, the court will order it amended, so as to state the causes of ac
tion separately. A defendant should not be embarrassed, by being obliged to so draw a distinct
and separate part of an answer, as to present a full defence to several causes of action. He has a right, and proper pleading requires him, to so frame his answer, that each defence shall be separately stated, and so refer to the cause of action it is intended to answer, that it may be intelligibly distinguished. (Code, $ 150, sub. 2.)
At Chambers, Oct. 6, 1855.
The defendants move for an order, requiring the plaintiff to so amend his complaint as to make it more definite and certain, and so as to state separately the causes of action contained in it, and to plainly number them, and for other relief.
The plaintiff insists that it contains but a single cause of action, and that it is an action on the case, in the nature of conspiracy.
The complaint states, that on and prior to the 9th of August, 1855, the plaintiff was, and since has been, a merchant in NewYork city, in good credit and solvent; that a dispute existed between the parties in respect to transactions between them, and the liability of the plaintiff on a note made by him and held by the defendants; that defendants sued him in the supreine court, and by a verified answer he denied the allegations of the complaint, and filed an affidavit of merits; that while plaintiff was absent from the city, defendants, without noticing the cause for trial, “and contriving and intending to injure the plaintiff, destroy his credit, and brcak up his business, on said 9th of August, 1855, fraudulently, maliciously, and without law or right," and without the knowledge of plaintiff or his attorney, and knowing their proceedings to be irregular, cause a judgment to be entered against him for $2,175.98, and docketed the judgment in, and issued executions to the counties of New-York and Kings, and levied on his property in both counties, and deprived plaintiff of the use of his property, until the judgment and executions were set aside, and subjected him to expenses in procuring then to be set aside.
Plaintiff further says, that the defendants in the further pros
Forsyth agt. John and James Edminston.
ecution of their malicious intent to injure him and destroy his credit, immediately on the books of the commercial agency, “maliciously caused to be written and published, and recorded of and concerning the plaintiff and his business and credit, a false and malicious and libelous record and publication, to the effect, that the plaintiff's credit was so impaired that he was not fit to be trusted, that he had failed to pay his debts, that a judgment had been obtained against him to the amount of $5,000, which could not be collected by reason of his insolvency; and with like malicious intent, caused copies of said libelous record to be circulated among sundry of the merchants of said city; and did falsely and malciously represent, publish, and declare of and concerning the plaintiff and said record, and said judgment, that his credit was gone, that he had failed to pay his debts, and that they had a judgment against him which he was unable to discharge, and had not property sufficient to satisfy; all which publication, record, representations, and declarations of the defendants were made by them in combination with each other, and acting in concert in respect thereto, and were false and malicious, and made with intent, by impairing the plaintiff's business and credit, to obtain for the house of which they were partners his business and profits, and intended greatly to injure, and did greatly injure the plaintiff in his character,” &c. It prays judgment for $10,000 damages.
Asa Child, for plaintiff.
Bosworth, Justice. The rules applicable to a writ of conspiracy, properly so called, are not applicable to actions on the case, in nature of a conspiracy. The latter are actions of tort, and are controlled by the general principles which regulate all actions of tort brought to recover damages. The damage sustained by the plaintiff is the ground of the action, and not the conspiracy. It may be brought against one person alone. If brought against several, all but one may be acquitted, and the plaintiff may have a verdict against one only.
Forsyth age. John and James Edminsion.
When several conspire, and agree upon measures to be pur-' sued to injure another, and such measures are taken in pursuance of, and in execution of such preconcerted arrangements, and damage results, all may be sued, and what one did in execution of the scheme may be alleged to be the act of all, and all will be charged with the consequences.
But where all directly participate in wrongful acts which produce damage, if they are acts which in judgment of law may be committed by several jointly, a recovery may be had in one action against all, though no conspiracy be proved. And even when it is alleged that all the defendants conspired, if it appear that there was no conspiracy, and that what was done was the act of one only, a verdict may be had against him, and in favor of the others.
Prooi, in this case, of the facts alleged, in relation to entering judgment against the plaintiff, and issuing executions against his property, and levying upon it, with the intent stated, and knowing the proceedings to be irregular, would entitle the plaintiff to recover, although he might fail to prove the other allegations of the complaint.
So, proof of entering upon the books of the commercial agency, the statements charged to have been there entered, and printing and circulating copies, would establish a cause of action.
So, proof of the verbal representations, said to have been falsely and maliciously made, of the plaintiff as a merchant, and of his standing and credit, with the consequences charged to have resulted, will establish a cause of action. Whether one would lie against the defendants jointly for this cause alone, without alleging and proving a conspiracy, in pursuance of which the representations were made, it is now unnecessary to decide.
It is obvious, that the complaint states the substance of three several causes of action.
They should be separately stated, (Code, § 167,) and plainly numbered. (Rule 86.)
Stating the causes of action separately is indispensable to
Lakin agt. The New-York & Erie Railroad Company.
appropriate and safe pleading on the part of the defendants. To one cause of action there may be no defence, and yet there may be a good one to each of the others. But those defences may be entirely different in their character. The complaint should be so framed that the appropriate answer to either cause of action may be separately stated in the answer:
The rules applicable to an action on the case, in nature of a conspiracy, are clearly and fully stated in 1 Sand. R. 230, note 4; and in Tappan et al. agt. Powers, Davis, and Lawrence, (2 Hall, 277–296.) See Jones agt. Baker, (7 Cow. 445.)
The motion must be granted, with $10 costs to defendants, to abide the event of the action.
Sallows S. L AKIN, appellant, agt. The New-YORK & ERIE
RAILROAD COMPANY, respondents.
It is improper to move for an order referring å cause back to a referee to make
a further or supplemental report, stating whether certain facts were proved before him or not, where it appears from the referee's report that he has passed upon all the facis necessary to a decision of the cause, and has stated those
facts in his report, agreeably to $ 272 of the Code. It would be, substantially, granting a new trial in fact, without power to hear the
parties on the testimony. After the referee has made his report on the facts and conclusions of law, the
only thing for the court to do is to examine and determine, 1st. Whether he has passed upon all the material issues made by the pleadings. 2d. Whether his finding on each of the questions of fact is supported by the evi
dence; and, 3d. Whether the legal conclusions from the facts are in accordance with the law
of the land
General Term, 6th District, Cooperstown, July, 1855.
This was a motion made at January term, 1855, for a rule or order referring it back to H. Ballard, Esq., sole referee in this