Green agt. The Hudson River R. R. Co.

come within the well settled rule of special damages, which amounts to little more than saying they were special, because they were specially laid, a truism that it required no great effort of legal learning to announce. A case thus presented and thus disposed of, can hardly be accepted as an authority which shall overthrow a principle of the common law, so long settled and acquiesced in as to have become quite elementary.

Concerning this case, it is well remarked by Judge METCALF, in 1 Cush. 479, that "no question was there raised concerning the legal right of the plaintiff to recover damages caused by the killing of his son. For aught that appears, that point was assumed and passed subsilentio, both at the trial and in banc." There is also an incidental reference to this case by Judge BRONSON, in Pack agt. The Mayor of New York, (3 Coms. 493,) where, citing it with an apparent dubitanter, he says: "I have a strong impression that the father could recover nothing on account of the injury to the child, beyond the physician's bill and the funeral expenses."

I am constrained by these considerations, to reject the authority of this case, and abide by the common law rule, that an action by a husband for the loss of his wife, by the careless and negligent act of a third party, can only be sustained where some period intervened between the time of the injury and the time of dissolution, during which he can be said to have suffered the loss of her service and society, and incurred expense and underwent anxiety and distress upon her account. Where death is the concomitant of the collision, and life departs at the instant the shock is received, no action for loss of service can be sustained, because there is no time during her life when it can be said that the husband has lost the service and society of his wife in consequence of the injury complained of. This may be thought a narrow ground on which to place any right of recovery, but there is no other on which the common law rule can be overcome, which declares that the mere death of a human being cannot be complained of as a civil injury to be compensated in damages.

I should have been happy in this case to have arrived at a

Green agt. The Hudson River R. R. Co.

different conclusion, but the law will not bend to accomodate our private views or gratify our personal desires. I have no alternative but to administer the law as I find it-no dispensation from its injunctions to stand by its ancient landmarks. "Non quieta movere" is a good maxim in jurisprudence, however much it may be disregarded in civil and political affairs. There must be judgment for the defendant on the demurrer with costs.

NOTE.-Probably it did not occur to the learned judge in deciding this case, to consider the death of the wife as a loss of property, as was done in the several actions in the Wiswall cases, (see Yertore agt. Wiswall, ante, page 8,) arising under the statute of 1847-9. Such a construction, as a matter of principle, would seem to apply as well to a common law action, as one under the statute; but would not probably suggest itself as proper without the statute authority, which was claimed for it in those cases.

Is it possible that the cause of action in causing death by wrongful act, &c., which has been classed and settled for two hundred and fifty years as one of personal injury, is changed by a statute which merely gives the representatives of the deceased party an action for damages in causing such death, which the common law did not give?

It seems to involve this novel proposition, that because a cause of action is such that a party at common law has no remedy on it, and a special statute to give such remedy is necessary, therefore, such statute being remedial, the cause of action is changed.

An "action" is one thing, and a "cause of action" is quite another; it is the latter which survives, and is assignable or not. Hence the necessity in the Wiswall cases, of construing a man, like a box of pig

lead when lost overboard, as per

sonal property. Having had occasion to express some views in relation to the survivorship of an action under the statute of 1847-9, in a note to the case of Yertore agt. Wiswall, (ante, page 8,) an opportunity is now presented of giving an authority on that subject, not then found, which no good lawyer will question. The statute of 9 & 10 Victoria, is very similar to ours in its essential features. In Broom's Legal Maxims, (4th ed. 565,) treating of the survivorship of actions, it says: "For a tort committed to the person, it is clear, then, that at common law no action can be maintained against the personal representative of the tort feasor, nor does it seem that the recent statute, 9 & 10 Victoria, c. 93, supplies any remedy against the executors or administrators of the party who, by his 'wrongful act, neglect or default,' has caused the death of another; for the first section of this act renders that person liable to an action for damages, 'who would have been liable if death had not ensued,' in which case, as already stated, the personal representatives of the tort feasor would not have been liable." If these views are correct, the statute in terms prohibits the survivorship of the action brought under it, and necessarily gives a legislative construction to the cause of action, to wit: that it is the same after as before the death, injuries to the person.-[REPORTER.

Robinson agt. Flint.

SUPREME COURT.

LESTER L. ROBINSON and others agt. EDWARD P. FLINT and others.

Where the complaint shows by its allegations, a false representation-known by the party making it to be false-made as the foundation of a contract with a person deceived thereby, and damages in consequence of such deception, it states a sufficient cause of action for a false representation.

Under section 167 of the Code, a cause of action in tort and a cause of action on contract, or for a breach of contract, may be united in one action, where these causes of action arise out of the same transaction.

And by transaction, it is understood the whole proceedings commencing with the negotiation, and ending with the performance of the contract, where the matter in controversy arises out of a contract.

Thus, in an action on a contract for the delivery of a certain quantity and quality of iron, which the defendants represented they had on hand, and were ready to carry out the contract in reference thereto, and the plaintiffs alleged that the defendants, intending to defraud the plaintiffs, made such representations knowing them to be untrue, that the defendants delivered iron of an inferior quality, and the plaintiffs were damaged thereby; and secondly, alleged that the defendants by the same contract agreed to send the iron to San Francisco, but neglected to do so, but delivered iron of an inferior quality, of much less value, and that the plaintiffs sustained damage thereby; it was held on demurrer, that these two causes of action were not improperly united.

New-York Special Term, March, 1858.

THE complaint is demurred to for two causes. First, that it does not set out a good cause of action, and second, that two different causes of action are improperly united.

FOSTER & THOMPSON, for defendants.
W. HUDSON, for plaintiffs.

INGRAHAM, Justice. The complaint avers sundry contracts made by different persons for furnishing iron to the Sacramento Valley Railroad Company, by which a certain quality of iron was to be furnished at a certain price. The plaintiffs afterwards assumed the contract from the company, provided

Robinson agt. Flint.

They then

it could be carried out as originally contemplated. applied to the defendants to ascertain if the iron originally purchased by the company was still on hand in Boston, and whether the defendants would carry out the contract as originally contemplated. It then avers that the defendants, intending to defraud the plaintiffs, represented to them that the iron was still on hand, kept for the company, and that they were in a condition to carry out the contract, when such representations were known to the defendants to be untrue; that in consequence of such false representations they made a contract with the defendants to deliver the said iron; that the defendants delivered other iron of an inferior quality, and that the plaintiffs were damaged thereby.

These facts show a cause of action for a fraudulent representation. What the damages may be, or whether the plaintiffs claim in their complaint damages such as can be recovered in the action, is not a question to arise on demurrer. The demurrer admits all the facts, and the only question is whether a good cause of action is made out by them. Of this there can be no doubt. The complaint shows a false representation, known to be false, made on the foundation of a contract with a person deceived thereby, and damages in consequence of such deception. I know no other requisite to make out a sufficient cause of action for a false representation.

The second cause of demurrer is the improper joinder of actions. In addition to the first cause for the tort, the com. plaint contains a second cause of action, founded on the same contract, which, after referring to the contract, and averring that the defendants by it agreed to send the iron to San Fran cisco, states that they did not send the iron before mentioned, but delivered iron of inferior quality of much less value, and that they sustained great damage thereby.

It is contended that this claim arises on the contract, and that the other being in tort, the two causes are improperly joined together.

It must be conceded that causes of action arising out of different transactions must be of one of the classes enumerated VOL. XVI.

16

Robinson agt. Flint.

in section 167, and that one cause for contract and one for tort cannot under such circumstances be united. The latter cause of action is evidently intended to be a claim on contract for not delivering the iron as agreed to by the defendants. It avers no fraud or false representation upon which a tort could be charged, and without that it cannot be said to belong to the same class as a cause of action with the first, unless it can be brought within the provisions of the first subdivision, viz: "Where the several causes of action all arise out of the same transaction, or transactions connected with the same subject of action."

It has been held that causes of action, although arising out of the same transaction, cannot be joined if they are inconsis tent with each other. (Smith agt. Hallock, 8 How. 73; Sweet agt. Ingram, 12 How. 331.)

But I have not been referred to any case where the court have held that two causes of action arising out of the same transaction, and upon both of which a recovery may be had, may not be united even if they differ in their nature, and could not therefore be united if they arose out of different transactions.

The 167th section of the Code provides that the plaintiff may unite several causes of action, whether they be such as were denominated legal, or equitable, or both, where they all arise out of the same transaction, or transactions connected with the same subject of action.

The plain reading of this section is, that the plaintiff may unite, first, as many legal causes of action as he pleases, arising out of the same transaction. Second, as many equitable causes of action as he pleases, arising out of the same transaction. Third, as many legal and equitable causes of action as he pleases, arising out of the same transaction. Fourth, as many causes of action as he pleases, arising out of different transactions connected with the subject of the action.

In Smith agt. Hallock, (8 How. 73,) Justice STRONG says that this section refers to cases which are consistent with each other-not to those which are contradictory.