Laughran & Dillon agt. Orser.

ished with the full costs of an action, in any court of record, unless the damage done amounted to $50.

In a case like the present, it would be no justification for departing from the plain reading of the statute, to say that it is absurd to suppose that the legislature would deliberately and understandingly subject a plaintiff to the costs of an action against a sheriff for a breach of official duty, even though the resulting damages should be but six cents.

The right to sue in a court of record is undoubted. But if a plaintiff elects to sue, in every case in which he can establish a right of action entitling himself to nominal damages, it does not follow that those provisions of law, which subject him to the payment of costs when only nominal damages are recovered, are so clearly absurd, that on that ground and for that reason, the courts may legislate and declare their meaning to be variant from their clear and obvious import.

Even if it be conceded that section 53 does not grant jurisdiction of such an action, a plaintiff in an execution, who has sustained damages, to an amount that would exempt an action to recover them from the imputation of being a vexatious suit, is not remediless. The sheriff may be compelled by attachment to return an execution.

If his return is false, and if his official default or misconduct shall have caused injury to a plaintiff in the execution, permission will be granted to prosecute his official bond. (2 R. S. 476, title 5.) That may, and probably must be, prosecuted in the name of the people of this state. (Id. 476, § 2, and Vol. II, 4th ed. 719, § 3.) Of such an action, a justice of the peace, according to section 54, has no jurisdiction, it not being for a penalty. It not only may, but must be brought in the name of the people, unless the provisions of the Revised Statutes have been so modified by the Code, as to require such suits to be brought in the name of the actual party in interest. (Code, § 291.)

But we should not feel at liberty to construe the provisions of section 304, contrary to their clear meaning, even if that construction would deny to the plaintiffs a right to bring this

Brewer agt. Temple.

action in a justice's court, and compel him to pay the costs of it, when brought in the only court in which, by law, it could be brought.

Entertaining these views, it becomes unnecessary to express an opinion whether a justice of the peace, under section 53 of the Code, has jurisdiction of such an action or not. The order appealed from, must be affirmed, with $10 costs.

SUPREME COURT.

WILLIAM BREWER agt. HARVEY TEMPLE.

Where the plaintiff alleged in his complaint facts which would, if established upon the trial, have sustained an action for assault and battery; and also alleged what was said by the defendant at the time, which would, if established upon the trial, have sustained an action of slander,

Held, on demurrer to the complaint, on the ground that two causes of action were improperly united, that the complaint purported to give the history of one occurrence, and no more. The whole together, of what was said and done, constituted but a single transaction, and made but a single cause of action [This case would seem to come strictly within the provisions of the Code, requiring a statement of facts constituting a cause of action, without any name for the action. If a name was required, it might be difficult to find one appropriate; for an ACTION ON THE CASE would hardly suit facts constituting assault and battery, or allegations constituting slander.-REPORTER.]

Albany Special Term, March, 1857.

DEMURRER to complaint.

The complaint alleges that on the first day of November, 1856, the defendant, with loud, boisterous and abusive language, made an assault upon the plaintiff, and seized him by the body, neck and throat, and jammed and squeezed his throat, and then and there published and declared, in the presence and hearing of divers good and worthy citizens, of and concerning the plaintiff, these words: "you perjured yourself, and I will send you to the states prison," and then and there pushed and jammed about the plaintiff; whereby the plaintiff was greatly

Brewer agt. Temple.

injured in his person, character, feelings and circumstances, and the plaintiff, therefore, demanded judgment.

The defendant demurred to the complaint, on the ground that two causes of action, one for assault and battery, and the other for slander, were improperly united.

J. PERCY, for plaintiff.

C. W. MINK, for defendant.

HARRIS, Justice. I think the demurrer is not well taken. The complaint in fact, contains but a single cause of action. The allegations relate to a single transaction. The complaint purports to give the history of one occurrence, and no more. This history embraces what was done and what was said upon the occasion. Each constitutes a part of the res gestoe. What is alleged to have been done, would, if established upon the trial, sustain an action for personal injury. What is alleged to have been said, would, if established upon the trial, sustain an action for injury to the reputation. The whole together, constituting as it does but a single transaction, makes but a single cause of action. The plaintiff brings his action upon the whole case, to recover damages for the compound injury he has sustained. The facts are no more divisible into two causes of action than they would be if the plaintiff had alleged that the defendant had spit in his face, and then knocked him down-or, having knocked him down, that he afterwards seized him, and tore his coat. However numerous the blows, or various the injuries, the whole constitute but a single cause of action. When it comes to trial, all that was said and all that was done, become the proper subject of investigation, and a single verdict adjusts the rights of the parties. The defendant, therefore, is not so badly off as his counsel supposes. The plaintiff has but a single cause of action against him. One trial will dispose of the whole matter. The demurrer must, therefore, be overruled, but with liberty to the defendant to answer the complaint within twenty days after payment of the costs of the demurrer to be taxed by the clerk of Albany.

White agt. The Hudson River Insurance Company.

SUPREME COURT.

EDWARD WHITE agt. THE HUDSON RIVER INSURANCE COMPANY.

Policies of insurance should be construed liberally, for the interest alike of both parties.

New-York Special Term, October, 1854.

ROOSEVELT, Justice. Policies of insurance, where there has been no fraud, and no misrepresentation or concealment of any circumstance materially enhancing the risk, are to be construed liberally. Technical objections involving no substantial right, are to be overlooked. While the underwriter fairly receives his premium, the insured should as fairly receive his protection. It is the interest alike of both, that the business of insurance should be conducted-and should be universally understood to be conducted-upon the broadest principles of fair and liberal dealing, never strangling justice in the nets of form. Judgment for plaintiff.

ERRATUM.

In the case of Dresser agt. Van Pelt & Wicker, page 26, an error occurs in the 3d paragraph and 3d line from the bottom, where it reads, "at special term and not at chambers." It should read, "at special term and at chambers." The word 66 not," "should be out of the sentence.

Pattison agt. Johnson.

SUPREME COURT.

AMBROSE PATTISON agt. BENJAMIN B. JOHNSON.

The notice required to be given of the examination of a party or person as a witness, under § 399 of the Code, must designate and specify distinctly the points upon which such examination is intended to be had. The notice should certainly be as clear and as definite as is required in a bill of particulars.

A notice of this kind: "The defendant will be examined as a witness on the trial of this action in his own behalf, on each and every allegation contained in, and fact put in issue by the pleadings therein," held, entirely insufficient. No points are specified in such a notice.

Erie Special Term, November, 1857.

MOTION for new trial upon exceptions.

The action is upon a note. It is alleged in the complaint that the defendant made the note payable to the order of one Jesse Pattison, on or before the first day of January, 1857; that Jesse Pattison indorsed the note to the plaintiff; that defendant has not paid the note, &c. The defendant by answer denied each and every allegation in the complaint; and for a second answer, alleged that he gave a note, describing it as described in the complaint, except that it was payable at the house of the defendant, and averred that it was the same note mentioned in the complaint. He then avers that when the note became due, he was at the place where payable, ready and willing to pay the same, and has been ever since, and still is ready to pay, &c. Upon the trial, the plaintiff gave evidence tending to prove the issues upon his part, and rested. The defendant then offered himself a witness in his own behalf. The plaintiff objected, on the ground that no notice of his intended examination had been given. The defendant's counsel then produced, proved the service of, and read a notice, that the defendant "will be examined as a witness on the trial of this action, in his own behalf, on each and every allegation contained in, and fact put at issue by the pleadings therein." VOL. XV.

19