Yet the defendants, wrongfully and negligently acting in the premises, and contriving and intending to defraud and injure the plaintiff, did not on the next morning deliver said sheep to the plaintiff, or to any one for him, at NewYork city, but neglected and refused so to do, and did not, with reasonable diligence and speed, carry and convey said sheep from Albany aforesaid to New-York aforesaid; but on the contrary, being such carriers as aforesaid, the said defendants so carelessly and negligently behaved and conducted themselves in the premises, that, by and through their negligence, default and carelessness, the said sheep were delayed for a long time on their said road, in their cars, and forty-eight hours beyond the usual and ordinary time of passage over the said road, by means whereof the plaintiff was subjected to great loss and expense, in consequence of said sheep wasting away for want of food and drink, and becoming sick and refusing to eat by reason of being so long confined in said cars, and in consequence of being compelled to keep them for a long time after their arrival at New-York city, to recruit said sheep and restore them to their former marketable condition, and in consequence of the depreciation of the market value of said sheep between the time they should have arrived and that of their arrival at New-York, and in consequence of the expense and loss of time to which plaintiff was subjected, amounting in all to the sum of $125.2

Second. For a further cause of action, the plaintiff shows the court that, on the 16th day of February, 1854, at New

1 This common but utterly useless fiction of the old system of pleading is utterly inapplicable to the new, and should never, in cases like these, be used. (Pleadings, 290.) It is difficult to see how a plaintiff can conscientiously verify a complaint containing such an averment.

2 As to the necessity of each statement setting out a complete cause of action, in itself, see note, ante, p. 438.

York city, he, by said agent, delivered to the defendants, and the defendants, as such carriers as aforesaid, accepted and received of him, then and there, one hundred and eighty-two sheep pelts, of the value of $500, to be safely and securely carried by defendants, in their cars, over their said road, and to be delivered to the plaintiff or his agent, at Albany aforesaid, in a good condition and in good order, with due and reasonable diligence and speed, for a certain reward to be paid by the plaintiff therefor.

That, with intent to injure and defraud the plaintiff,1 the defendants wholly refused and neglected to carry said pelts, and deliver them to the plaintiff or any one for him, as aforesaid, but kept and detained them in their cars and on their road for a long time, until said pelts became rotten and worthless, and so wrongfully and negligently behaved and conducted themselves in the premises, that through their carlessness and default the said pelts were entirely spoiled and of no value, to the plaintiff's damage of $500.

Third. For a further cause of action the plaintiff shows, that on the 17th day of February, 1854, at New-York city, he, by one Eli O. Taylor, his agent, delivered to the defendants, and the defendants, as common carriers aforesaid, then and there accepted and received of him, seventy-one sheep pelts, of the value of $200, to be safely and securely carried by the defendants in their cars, over their said road, from New-York to Albany aforesaid, and there to be delivered to the plaintiff or his agent, in good order and condition, with all due and reasonable diligence and speed, for a certain reward to be paid by plaintiff; that the defendants have wholly neglected and failed to perform their said promise and agreement, and wrongfully and

1 See note on p. 524.

carelessly and improperly kept said pelts in their cars, on their road, for a long time, until they became rotten and unmerchantable, and did not deliver them to the plaintiff or his agent, as they promised, but suffered them, through their carelessness and default, to become spoiled and worthless, and would not deliver them for a long time to the plaintiff, and until they were entirely valueless, to plaintiff's damage, of $250.

Therefore plaintiff demands compensation for the aforesaid injuries, and asks judgment against the defendants in the sum of $1,000, and costs.

E. G. LAPHAM,

Plaintiff's Attorney.

(No. 86.)

Against a railroad company, for ejectment, to recover part of a public street taken and exclusively appropriated to the purposes of the railroad, joined with a cause of action for damages for the same entry and acts of defendant.1

SUPREME COURT-RENSSELAER COUNTY.

James Wager, Volney Richmond and Har

vey Smith

agt.

The Troy Union Railroad Company.

The abovenamed plaintiffs, residents of and doing business at the city of Troy under the name and firm of

1 Since the cases of Smith v. Halleck (8 How. Pr. R., 73) and Hulce v. Thompson (9 How. Pr. R., 113), it is believed such a joinder of causes of action is not proper. (See, Pleadings, 186, 187.)

Wager, Richmond & Smith, complain of the defendant, a railroad corporation, duly incorporated pursuant to the statutes and laws of this state, and allege the following facts, constituting their cause of action:

That said plaintiffs are the owners, in fee simple, of certain property and real estate in the city of Troy, in said county, situate on the easterly side of Sixth-street, between Albany and State streets, in said city, and generally bounded and described as follows: [Describing the premises, which embrace one-half of the street opposite the premises], with the right of free access and egress to and from the same to and through the said street. And the plaintiffs aver, that they were possessed of the whole and every part of the above premises, subject only to the public easement of a common street or highway in that part thereof which is used as a public street, on the 1st day of February, 1854, and, being so possessed, the defendant afterwards, to wit, on the same day, entered upon a portion of said premises, to wit, that part which is used as a public street or highway, lying between and bounded by the centre line of said Sixth-street, on one side thereof, and the front line of the buildings erected on each of the two separate parcels or premises above described, on the other. And said defendant is now in possession thereof, and, by artificial embankments and other works, has encroached and destroyed the use of the same as a public street or

The objection, however, can be taken only by demurrer, and is waived by answer. (Code, § 144.) The complaint, in this case, was prepared before the decision of these cases, and the defendant put in its defence by answer, thus naming the objection.

As to the joinder of a legal and equitable cause of action, see Precedent No. 16, Part II., ante, p. 96; two equitable causes of action, No. 56, Part II., ante, p. 252; the joinder of several causes of action arising on contract, Part III., No. 44, ante, p. 436; joinder of two causes of action arising ex delicto, No. 60, ante, p. 468, and No. 85, p. 523.

ante,

highway, and has exclusively appropriated the same to its own use, and claims the sole and exclusive right to use the same, or a considerable portion thereof, as a railway for their engines, cars and other movable vehicles, and wrongfully withholds the possession thereof from the plaintiffs. And the plaintiffs claim to be the owners of the fee of the said premises so entered upon and unlawfully withheld from them, subject only to the public easement in the same as a street or highway, for the ordinary uses and purposes of travel, and entitled to the possession of the same, subject only to such easement.

Second. And for a second and further cause of action the plaintiffs allege, that on the said 1st day of February, 1854, and on divers other days and times between that day and the commencement of this action, the defendant, by its agents, superintendents, contractors and employees, wrongfully entered upon said premises of the plaintiffs, as aforesaid, and did then and there dig and excavate the soil of said premises, and tear up the pavements, and make and cause to be made embankments, and lay down rails upon said premises, and on divers occasions, since, has been, and now is, committing other acts of trespass and injury to said premises, by running their cars and engines over said premises, and by entering upon and using the same daily, for their own exclusive and private purposes, to the great damage of the said plaintiffs, sustained in the several acts of trespass, committed as aforesaid, on said premises, in the depreciation of their buildings and real estate, and in the injuries occasioned thereby to their business.

Wherefore the plaintiffs demand judgment against the defendant, that said defendant deliver up to them, subject only to the public easement, the possession of the said premises, so unlawfully withheld from them by the defendant; and that said defendant also pay to said plaintiffs