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That on the 15th day of December, 1852, the said firm of Wilcox & King duly assigned, transferred and set over unto the said plaintiff the said account and demand against the said defendant.
Wherefore the said plaintiff demands judgment against the said defendant for the sum of $106.50, with interest from the 15th day of December, 1852, besides costs.
For several claims of different kinds of money demands, some
of which occurred in different rights, and are set forth in separate causes of action.
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action :
First. That the defendant is indebted to the plaintiff in the sum of $- on an account for various articles of merchandise, consisting of dry goods and groceries, which were sold and delivered by the plaintiff to the defendant at different times between the
and the day of — of the value of said sum of $— which is now due from defendant to the plaintiff, and wholly unpaid.
Second. And for a second and further cause of action the plaintiff alleges, that on the
the defendant was indebted to one A. B. in the sum of $for the labor and service of said A. B. upon the farm of said defendant, in cultivating the same from the day
of to the day of — a period of six months at and for a certain price agreed upon between defendant and said A. B., to wit, $— per month; and being so indebted, the said A. B., on said day of for value received, sold and assigned to the plaintiff such claim and demand, and the defendant has not paid the same or any part thereof, but is justly indebted therefor to the plaintiff in the said sum of $
Third. And for a third and further cause of action the plaintiff* alleges, that there is due him from the defendant the sum of $ which he claims to recover, on a due bill or note executed by the defendant to the plaintiff, of which the following is a copy:1 [ Set forth copy.]
Fourth. And for a fourth and further cause of action the plaintiff alleges, that on the H. made his promissory note, whereby, for value received, he promised to pay, to the order of the defendant, three months from the date thereof, the sum of $4 and thereupon the said defendant, for a valuable consideration, endorsed the said note to the plaintiff. That on the day when said note became due and payable, the same was presented to the maker and payment thereof demanded, and refused; whereupon, on the same day, said note was protested and notice thereof duly given to the defendant, who has not paid the same or any part thereof, but said sum of $- , with interest from, &c., is still due thereon from the defendant to the plaintiff.?
1 This is under section 162 of the Code. See precedents of complaints in such cases, Nos. 1, 2 and 3.
2 The plaintiff may in like manner set forth as many different causes of action arising in contract, and due him in his own right from the defendant, as he may have. He may join a demand due him in his own right, whether growing out of his own contract with the defendant or assigned to him by another person, with a demand due to
Wherefore the plaintiff demands judgment against the defendant for the said several sums so due him from said defendant, amounting in all to the sum of, &c., &c.
him as survivor. But it is supposed he cannot join a demand due him in his own right with another due him as executor or administrator. (Pleadings, 193.)
But claims, even if of the same kind, as for goods, labor, &c., if they have accrued to the plaintiff by different titles, as, for example, if one be a claim on his own contract with the defendant, and another have been assigned to bim, should be separately stated, that is, should be set forth in distinct causes of action, as above. (Adams o. Holley, administratrix, 12 How., 326; Acome o. The American Mineral Co., 11 How., 24.) So also, in regard to demands on different notes and other instruments. Such instruments are entire contracts, each in itself, and are not, like the items of an account, susceptible of being all thrown together and embraced in a single statement of a cause of action, but there should be a separate statement for each.
The different statements or causes of action must also show, each for itself, the amount due or claimed upon each. (Clark 0. Farley, 3 Duer, 695.)
They are required, also, by the rule (87), to be not only separately stated but plainly numbered. A defect in this respect, however, is formal merely, and would not be ground for demurrer. As to the proper mode for correcting such a defect, see Pleadings, 196, 197.
It is intimated in the text of the Treatise on Pleadings (683, 584), on what was considered at the time as the weight of authority, that a demurrer would lie for not separately stating causes of action that might otherwise properly be joined. On the authority of the later cases, however, the better opinion would seem to be that such a defect can only be corrected, before pleading, by motion. In addition to the cases cited in Pleadings (344, et seq., 683, 684), see Harsen d. Bayeux (5 Duer, 566); Dorman v. Kellam (General Term, 14 How., 184); Woodbury v. Sackreder (2 Abbott, 402); Cheesborough v. New-York and Erie Railroad Company (13 How., 558).
(8.) IN CASES OF PLEADING A JUDGMENT, PERFORMANCE OF
CONDITION PRECEDENT, AND PRIVATE STATUTE, Sections 161, 162, 163 OF THE CODE.
On a judgment by leave of the court.
SUPREME COURT - OTSEGO COUNTY.
agt. John Russell
The plaintiff abovenamed complains of the said defendant, and alleges :
That by leave of this court, first had and obtained by order of this court, made at Special Term, held at, 8c., and on, &c., which order was made on due notice to the defendant, the said plaintiff brings this action."
That the said plaintiff, on the 28th day of June, in the year 1842, in the Court of Common Pleas of Otsego county, before the judges thereof, by the consideration and judgment of the said court, duly given or made, recovered against said defendant the sum of $3,508.12, which, in and by the said court, was then and there adjudged to the said plaintiff for his damages, which he had sustained as well by reason of the non-performance of
i By section 71 of the Code no action can be brought upon a judgment rendered in any court, except a Court of Justice of the Peace between the same parties, without leave of the court, for good cause shown, on notice to the adverse party. The complaint, therefore, should show by proper averments the leave to sue on notice, and I have altered the foregoing precedent accordingly, by inserting the allegations in italics, as above.
certain promises and undertakings, then lately made by the said defendant to the said plaintiff, as for his costs and charges by him about that suit expended, whereof the said defendant was convicted, as by the record and proceedings thereof, remaining in the clerk's office of Otsego county, more fully appears; which said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated, and the said plaintiff hath not obtained satisfaction of or upon the said judgment so recovered as aforesaid, by execution or otherwise, but that the defendant still owes the same to the said plaintiff
, and hath not paid the same or any part thereof.
Wherefore the said plaintiff demands judgment in this action against the said defendant for the sum of $3,508.12, and interest on the same from the 28th day of June, 1842, and the costs and disbursements of this suit.
(No. 46. )
On a justice's judgment rendered more than five years before
Title of the Cause.
The plaintiff complains of the defendant :
That on the day of being five years and upwards before the commencement of this suit, in and by
1 As to reviving a judgment by action, in place of the writ of scire facias, see 12 How., 537, 11 How., 209.
% No action can be brought on a justice's judgment, in the same county, within five years after its rendition, except in case of his death, resignation, incapacity to act, &c., &c., as provided by section 71 of the Code.