Lovett v. Pell.

or defect." Mis-docere, mis-teaching, i. e. to teach amiss. Presbyter populum non mis-doceat." But pleadings,' says Blackstone, "are the mutual altercations between the plaintiff and the defendant. The first of these is the declaration." 3 Black. Comm. 203. Does it not then follow, that in the natural and truest sense of the word mispleading, it comprehends misdeclaring, whether the error be in the separate counts, or in the improper joining of them? I admit that this goes beyond the interpretation previously giv en by the courts to the old statutes which have been embodied in our revised statutes. The decisions on which the supreme court have rested their opinion, are either old authorities, or those governed by the binding force of older cases. But if this question could now be presented anew in the English courts, (as under the recent revision of their pleadings and practice it cannot well be,) it is obvious what would be the interpretation of the English courts at the present day.

The statute of William IV., under which the judges have remodelled the pleadings and practice, authorizes the judges "to make such alterations in the mode of pleading, and in the mode of entering and transcribing pleadings," as may be necessary for the objects of the act. Under this authority, the whole body of English judges have formed their "new rules of pleading." The 5th of these rules is wholly confined to regulating in detail what counts in pleading may be allowed to stand together: and what not, in other words, what counts may be joined, and when a plaintiff shall be confined to a single plea. See Bosanquet's ed. of The New Rules. Such is the unanimous understanding of the word pleading among the present English judges, shewing that a contravention of their fifth rule, by mis-joining counts, would be considering a mis-pleading. In this sense the action of the judges under the statute, is understood by Mr. Chitty who says: "Under the authority of the act of William IV., which enabled the judges to promulgate rules affecting pleadings, several very important rules relating to declarations and pleadings have been made." 3 Chitty's Prac. 454. Why should we be behind the judges of England in discarding cumbrous, technical difficulties and ab

Lovett v. Pell.

surdities? Why should we not expound our revised statutes of amendments in the same liberal and right spirit, that they have applied to the act of parliament for regulating their practice? Another strong proof of the intent of the legislature in their use of the word mispleading, may be found in the context of the same provision. It provides that no judgment after verdict shall be reversed or impaired by reason of any mispleading, insufficient pleading or misjoining of issue. Now one of the forms of misjoinder of issue would seem to be that of a double issue, such as must result, as here, from a misjoinder of incompatible counts. It is true that the words misjoinder of issue, may not cover the whole ground in this case, so as to apply to the previous misjoinder of counts, and thus the statute would go only to cure the double issue and not the error that led to it; but they are very important to shew the spirit and intention of the act, and the nature and character of the formal obstructions to justice, it was meant to cure. Taking together the two phrases, mispleading and misjoining of issue, the whole ground is covered, if it be not, as I think it is, by the former phrase alone.

I would not venture to disturb decisions of equal authority with those which support the supreme court decision, where they go to establish any rule of property, or to regulate personal rights, although I should judge them to be founded upon arbitrary or artificial reasons. Such decisions enter largely into the concerns of men. They become interwoven with the whole body of the law, and are silently recognized in the mangement of affairs, by citizens of all classes, as well as by lawyers and courts. Not so with a pure formal question of pleading. The overruling prior decisions on such a point, when the substantial ends of justice are thereby promoted, can influence no other question save those of legal form.

This is a new question in the highest tribunal of this state. It now arises under a statute not new in its objects, but re-enacted here recently with enlarged provisions and in "language," as the revisers said, intended to rescue those provisions from the verbiage in which they were enveloped ; VOL. XXII. 48

Lovett v. Pell.

thus manifesting a freer and more equitable spirit than heretofore, in remedying "technical imperfections, variances, defects, omissions and all other errors of the like nature." I therefore deem it proper to construe this act in the same wise and liberal intent in which it was passed. We ought to reject what Blackstone calls "the scrupulous obstinacy and literal strictness" of the ancient English judges who narrowed every legislative effort to liberalize their practice, by the strictest construction they could give; and did not yield till twelve successive enactments had been found necessary to cure them " of their unreasonable degree of strictness." By such a construction as I contend for, we shall promote the great objects of justice in every case where it can be applied; and this without making any hasty innovation upon the rules and forms of pleading. A misjoinder of counts will still be incorrect; and if it works any manner of inconvenience, the defendant may obviate that by demurring or pleading in abatement. If he omit to do so and voluntarily joins issue incorrectly, he ought not to be permitted to lie by, to see the result of his case before a jury, and then come in and overturn verdict and judgment by taking advantage of an error not touching the merits of the controversy, and which he has himself promoted, since it could not have gone on without his own aid and participation. This is surely one of the kind of defects, that it was the object of our statute of amendmends to remedy. I think, therefore, we should not hesitate to reverse the judgment of the supreme court on this head.

The supreme court appear not to have noticed.the other ground on which the reversal of the original judgment below, was maintained before us; I presume that it was considered wholly untenable. The books shew that it is so. The position is that the plaintiff in error in the supreme court having specially assigned as error, that the issues never were tried as set forth in the record, and the defendant having by his joinder in error confessed the fact, the record and proceedings of the common pleas must therefore be allowed to be erroneous, although in fact the issues were joined and the verdict found. But the authorities read thus:

Lovett v. Pell.

So if an

in a per curiam opinion of our supreme court, Judge Sutherland says; "if the assignment is bad, as impeaching the record, the defendant can avail himself of that objection under the general plea of in nullo est erratum. error in fact that is not assignable be assigned, and in nullo est erratum is pleaded, it is no confession of it: as if it be assigned, that the court was not sitting on the day when the judgment purported to have been given, because that is against the record, and in such case, in nullo est erratum is only a demurrer." 7 Wendell, 56. But the error assigned was not assignable. "A man cannot allege diminution contrary to the record which is certified." 2 Saunders, 1019. "Nothing can be assigned for error which contradicts. the record." Per Chief Justice Savage, 9 Wendell, 126. The record is the highest evidence of the facts, and it is not to be presumed to be false from a mere inference of pleading. If there had been any such error beyond some trivial matter of form, it could be impeached or corrected in the court below.

The

Substantial justice between the parties appears to have been done in the court where the cause was tried. two very artificial reasons for reversal are of a character never entitled to peculiar favor; and seem to me quite insufficient-the one last considered because it is against all ancient and modern authority; the other as against the equity and policy of our revised statutes. I shall accordingly vote for reversing the judgment of the supreme court.

On the question being put, shall this judgment be reversed? the members of the court divided as follows:

In the affirmative: The PRESIDENT of the Senate, and Senators BEARDSLEY, DICKINSON, FURMAN, HAWKINS, HULL, HUNT, HUNTINGTON, JOHNSON, H. A. LIVINGSTON, MAYNARD, MOSELEY, NICHOLAS, PECK, SKINNER, STERLING, VERPLANCK -17.

In the negative: The CHANCELLOR, and Senators PAIGE, SRAKER, WAGER-4.

Whereupon the judgment of the supreme court was reversed, and the judgment of the common pleas AFFIRMED.

IRVIN, survivor, &c. vs. THE SEA INSURANCE COMPANY.

Where, in an action on a policy of insurance for the loss of a ship, it appeared that at the time of the application for the insurance, a representation was made that no spirits would be allowed on board, and it turned out in proof that the master of the vessel had in the cabin two kegs of spirits, containing four or five gallons each, which would have belonged to him as a perquisite on his arrival at the port of destination, but which were not broached or any of the contents used on board of the vessel, ir WAS HELD, that the spirits not being on board for use, and not being in fact used, the policy was not invalidated.

It was further held, that the representation would not prevent the taking on board a whole cargo of spirits, if taken for transportation in the regular course of business.

ERROR from the supreme court. The plaintiff brought an action in the superior court of the city of New York on a policy of insurance on the British ship Priscilla at and from Liverpool to the port of St. Johns, New Brunswick. The vessel was wrecked and totally lost. At the time that the policy was effected, the plaintiffs represented the Priscilla to be a new ship perfectly sound in every respect, and would in every respect bear a comparison with any vessel ever built in New Brunswick; and further, "the captain is a careful "and steady man, has good officers and crew; and no spirits "allowed on board." Evidence was given in reference to the character and seaworthiness of the vessel, which, however, it is not necessary to advert to. In respect to the prohibition of spirits, it was proved by the master of the vessel that a keg of brandy and a keg of gin, each containing about four or five gallons, were taken on board at Liverpool among the ship's stores; the kegs were sealed with the king's seals, and the seals were not broken, nor were any of the contents drawn out or used after the kegs were taken on board: and that on his arrival at St. Johns, the liquor would have belonged to him as a perquisite. On his cross-examination, he stated that when he sailed from Liverpool, he had on board about a pint of spirits in a third keg; that the kegs were stowed in the cabin; that they were not entered in the bill of lading; that they came on board out of bond-a drawback being allowed at Liverpool.