
    Cahoon et al. v. Bank of Utica.
    
      Joinder of actions. — Surrender of vouchers. — Costs.
    The assignor of collateral securities, may, with a claim for a surplus, join one, for A surrender of the original evidence of debt. The entire claim is of equitable cognisance, though the amount of the surplus be undisputed.
    The plaintiff in such action is entitled to the delivery of a note of which he is a joint-maker, as a voucher against his co-maker.
    In such action, the costs are in the discretion of the court, under § 306 of the Code.
    Cahoon v. Bank of Utica, 4 How. Pr. 423 ; s. c. 7 Id. 134, reversed.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment rendered in favor of the defendants, upon demurrer to the complaint, had been affirmed. (Reported below, 7 How. Pr. 134, and, at special term, 4 Id. 423.)
    This was an action by the assignees of Stephen W. Brown, to recover a surplus received by the Bank of Utica, upon a mortgage pledged to it as collateral security for his own promissory notes, and one of the firm of Brown & Rossiter, and to compel a delivery of the notes to the plaintiffs, as assignees.
    The complaint set forth that on the 4th day of May 1846, Stephen W. Brown assigned to the defendants a bond and mortgage for $3000, belonging to him, solely, as collateral security for the payment of three promissory notes of $1000 each, two of which were made by Brown alone, and one by Brown & Rossiter, a firm of which he was a partner, and one-half of which Rossiter was bound to pay; that the defendants had collected the mortgage, and that the moneys received on the collection, after paying the amount due upon the three notes, left a surplus in their hands of $89.52; that the plaintiffs, on the 30th day of May 1846, received from Brown an assignment of all his estate and rights in action, and that shortly after, and before the collection of the moneys on the bond and mortgage, by the defendants, he died, and that there were no executors or administrators of his estate; that the defendants, although requested by the plaintiffs, had refused to pay them the surplus moneys received by them, after the ^payment of the notes, and to deliver to them ^ the notes; and demanded judgment for the sum of $89.42, and a surrender of the Botes to the plaintiffs.
    The defendants demurred to the complaint, and assigned for cause of demurrer:
    1. That several causes of action have been improperly united in said complaint; that- is to say, a cause of action for the recovery of a certain amount of money due by contract from the defendants, and a cause of action to procure the delivery to the said plaintiffs of certain promissory notes in the said complaint mentioned.
    2. That the cause of action for the recovery of the moneys in the complaint mentioned, belongs to and should be brought in the name of the personal representatives of Stephen W. Brown, and not by and in the name of the plaintiffs.
    The court, at special term (Gridley, J.), gave judgment in favor of the defendants, upon the demurrer, on the ground that there was an improper joinder of causes of action. (4 How. Pr. 423.) And his decision having been affirmed, at general term (7 Id. 134), the plaintiffs took this appeal.
    
      Loomis, for the appellants.
    
      Hunt, for the respondent.
   * Johnson, J.

The ground on which this case ought to be put is, that the complaint does not contain two causes of action. The claim is single; it stands substantially in the same position as if Brown himself were plaintiff. The gist of it is, that Brown had placed in the possession of the Bank of Utica a mortgage, the proceeds to be applied to pay three notes, one made by Brown & Rossiter, and the others by Brown, and the surplus to be returned to him. His assignees now seek an account of the proceeds of the mortgage and of their disposition, and to have the balance paid over, and the notes which are satisfied delivered up. It is no answer, to say that the balance of moneys could have been recovered in an action for money had and received; it would, none the less, have been the proper foundation for a bill in equity. Suppose, instead of a single security transferred to secure debts to a single person, twenty different securities had been transferred to the bank, to secure debts due to twenty different persons, does any one doubt that the remedy would b'e in equity ? It is only because there is no dispute about the amount due, that there seems to be any room for mistake as to the character of the claim. If that remained to be ascertained, it would be the clearest possible case for an *account; and yet this case is not clearer than that before us. For, surely, the accidental circumstance of the absence of a dispute as to the amount, can hardly be deemed to alter the value of the party’s right.

Considering this proposition to be established, it remains to say a few words in regard to the claim to have the notes delivered up. Whatsoever may be the case as to Brown’s own notes, he had a clear interest to require possession of the note of Brown & Rossiter, in order to be able to use it as a voucher in stating an account with Rossiter, and, therefore, having extinguished it by his own means, he had also a clear right to have the note delivered up. It is, in short, a complaint by a debtor to have his obligation delivered up and cancelled, and an account of the securities pledged for them, and payment of the overplus. That a claim so simple in its character, so well recognised,, and even familiar, under the old practice in chancery, should be seriously regarded as two distinct causes of action, requiring distinct modes of trial, and incapable of being joined in a single suit, is quite as surprising as the doctrine itself, if held to be well founded, would be inconvenient.

Jewett, J.

(Dissenting.) — In regard to the cause of demurrer first specified, it is insisted by the counsel for the plaintiffs, that “ the demand for the money and the demand for the delivery of the three notes, being both rights which accrue from the same state of facts, are properly both demanded in the conclusion of the complaint which states these facts.” The demurrer assumes, as I shall, that the complaint states facts sufficient to constitute two causes of action, one for the Recovery of the money, and the other for the ^ notes. The question then is, can these two dis- *- tinct causes of action be united? That must depend upon the provisions of the code.

Section 167 provides, that in seven specified cases, several causes of action may be united in the same complaint, observing the rules prescribed in that section for that purpose. I think, that the complaint is bad, because it unites two causes of action, without stating them separately, and because they do not belong to any one class, as specified in § 167, of which there are seven. The causes of action which are allowed to be united, must belong to some one of the seven classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. The separate statement of a cause of action, and the separate counts of a declaration, are equivalent expressions.

The necessity of having each stated by itself, in a different count, is as imperative under the code, as under the former mode of pleading. The case of Handy v. Chatfield (23 Wend. 35) shows what tnat was. Bj stating each separately, confusion is avoided, a definitf issue can be framed on each cause of action, and it car. be more conveniently tried. There should be as many separate statements as there are causes of action. In this case, there are two causes of action, or, at least, it is so claimed; not separately stated, but blended together in a single statement. The counsel for the plaintiffs insist, that these two claims or causes of action are embraced, either within the first class specified in § 167; that is, “claims arising out of” contract, express or implied, or within the seventh class; that is, “claims against a trustee, by virtue of a contract, or by operation of law.”

In respect to the claim for the delivery of the notes to the plaintiffs, there is no contract alleged, out of which the claim is supposed to arise, nor can I see how such a contract is implied. The facts stated, it seems to me, exclude the idea of there being any contract, express or implied, upon which a claim to deliver the notes to the plaintiffs, on payment of them, can be founded. When paid, the notes ceased to be the property of the defendant, *it is true, and it is at least doubtful * 4911 ’ ’ whether they were of any value to any one (Todd v. Crookshanks, 3 Johns. 432); but it is unnecessary to decide that question, and I do not intend to express any opinion upon it. If any action could be sustained, by any person, against the holder of the notes, after having received payment, to recover them specifically, by reason of a refusal to deliver them up, upon the facts stated, an action for breach of contract to deliver them (ould not be maintained.

Nor, in my opinion, do the claims in question come within the seventh class of cases specified in § 167. That only embraces claims which arise against a trustee, by virtue of some contract, or by operation of law. It is obvious, as I think, that it intended to provide for the enforcement of trusts, properly so called. In regard to the money, on its receipt, the defendant became a debtor to the plaintiffs for the amount beyond the sum applied in payment of the notes, and as to the notes, if any action can be sustained at law against the defendant, for withholding them, it must be an action of tort. The defendant, in no sense, is answerable to the plaintiffs in the character of a trustee. The judgment should be affirmed.

Welles, J., also dissented.

The following opinion upon the question of costs, was subsequently delivered by—

Johnson, J.

Section 304 of the code gives costs to the plaintiffs, of course, in several cases: among others, in an action for the recovery of the possession of personal property, and also in an action for the recovery of money, where the plaintiff shall recover $50 or more. The plaintiffs’ claim in this case has not been sustained in this court, upon the ground that it embraces two causes of action, one for money, and the other for the possession of personal property, but upon the ground, that it is an action by the assignees of a debtor to have an account from a creditor of his dealing with securities pledged to him for the *payment of certain debts, A and a delivery up of the paid obligations or evi- *- dences of debt. Such an action we do not think can be properly described as an action either for the recovery of money, or for the recovery of the possession of per* sonal property. Each subdivision of § 304 relates to a distinct kind of action, and in order that an action should be deemed to be embraced in the provisions of the section, it should come under some one subdivision. An action for the recovery both of money and of the possession of personal property is not within the provisions of § 304. Each subdivision is complete in itself, and to have costs under the section, ,the cause of action must be such as is specified in some single subdivision.

It was adjudged, in Todd v. Crookshanks (3 Johns. 432), that the maker of a paid note could not maintain trover against the payee who refused to give it up, that it was, in law, of no value. Now, it is obvious, that if the claim of the plaintiffs in this case, is to be regarded as an action for the recovery of the possession of personal property, besides the difficulty that the case cited determines, that the plaintiffs have no property in the paid notes, this further difficulty exists, that as it is held to be of no value, and as for the detention of a thing, of no value there can be no legitimate damages, their right to recover costs would be made to depend on the merely accidental fact, that upon the securities in the hands of the defendant a surplus of over $50 has been received, and if that feature were out of the case, as it might very well be, or if the amount of the surplus were under $50, then the plaintiffs would recover no more costs than damages, or perhaps have to pay costs. These consequences would be the legitimate and necessary results of holding this action to be embraced by the provisions of § 304. We think, it does not come within that section, but comes under the description of “ other actions” mentioned in § 306, in which costs may be allowed or not in the discretion of the court. These views are confirmed by reference to §§ 285, 286 and 289, in reference to the enforcement of judgments, which show that the execution for the delivery of personal property "'would be wholly inadequate to the _ ^ ^ relief proper in such a case as this. *-

Judgment reversed, and judgment ordered for the plaintiff, on the demurrer, with costs in the court below, but without costs to either party in this court.  