The opinion
McCunn, J.
(dissenting). These appeals are from orders at Special Term, overruling demurrers to the complaints for misjoinder of causes of action. The several causes of action are confounded in a single count; but this irregularity the defendant waives, and the precise point presented for consideration is, that the complaints embrace causes of action which are not properly united under the provisions of the Code.
Indisputably the complaints do exhibit two causes of action, viz.: a cause of action for false imprisonment; and a cause of action for malicious prosecution. The injuries alleged are “ such false and illegal arrest, and such false and malicious prosecution;” and the facts recited are sufficient to authorize a recovery on either ground. The question is, can a cause of action for false imprisonment be united, agreeably to the rules of our present practice, with a cause of action for malicious prosecution ?
Under the common law system of pleading, false imprisonment and malicious prosecution were not susceptible of being combined in the same complaint. The former inflicted an immediate injury on the person; and the appropriate form of redress for this wrong was trespass vi et armis. The latter involved a consequential injury to the character; and the appropriate form of action for this grievance was trespass on the case. But case and trespass constituted an exception to the general rule, that actions ex delicto might be united, and were not capable of being combined (Graham’s Practice, 2d ed., 96; Howard v. Banks, 2 Burrow, 1114).
Instead of relaxing the rigor of the ancient rule regulating the joinder of causes of action, the Code, in pursuance of its distinguishing object to compel the raising precise - and definite issues on the record, superseded the former classification of wrongs with *333 reference to their union in the same action, and in section 167 prescribed a much more narrow and stringent principle of practice. By that section causes of action are divided into seven distinct categories; and the rule declared that causes of action belonging to different classes shall not be united in the same complaint (Landon v. Levy, 1 Abb. Pr. R., 376). Hence, the causes of action comprehended by subdivision 3, i. e., injuries to person, may not be combined with causes of action falling under subdivision 4, i. e., injuries to eha/raoter. Row, false imprisonment is aninjury to the person; while malicious prosecution is an injury to the character (Black. Comm., bk. 3, ch. 8, p. 126; 2 Bouvier Instit., 508, sec. 2239; Broom’s Comm., 741, English ed. 1869; Watson v. Hazard, 3 Code R., 218; Martin v. Mattison, 8 Abb., 3 ; Hull v. Vreeland, 18 Abb., 182 ). Being an injury to character, a cause of action for malicious prosecution may be united with a cause of action for slander, as in Watson v. Hazard and Hull v. Vreeland (supra); and with a cause of action for slander and a cause for libel, as in Martin v. Mattison (supra). Being an injury to character, a former recovery for malicious prosecution is pleadable in bar of an action for slander (Sheldon v. Carpenter, 4 Comst., 578). Being an injury to character, a former recovery in trespass for false imprisonment is no bar to an action for malicious prosecution (Gnest v. Warren, 9 Exchequer, 379).
The essential and fundamental distinction between an action for false imprisonment and an action for malicious prosecution, is explained and illustrated by Lord Mansfield, in the leading case of Sutton v. Johnstone (1 Term, R., 544), and by Mr. Justice Emmott, in Brown v. Chadsey ( 39 Barb., 260 ). The distinction is recognized and inculcated by every elementary treatise on the common law. The respondents argue that this distinction is obliterated by the Code; but it is only the distinctions between forms of action that are abolished. The Oode does not pretend to assimilate and identify all the various causes of action known to our system of jurisprudence; nor could, such a result be realized by any fiat of legislation, since the difference between causes of action is a difference in nature and substance, and not merely of conventional classification. Indeed the very section of the *334 Code under consideration (sec. 167) recognizes the distinction between causes of action, and upon that distinction bases its regulation as to the joinder of actions. The objection, however, if tenable, would not avail the respondents; for, in terms, they demand redress as well for the injury to their persons by the false imprisonment, as for the injury to “ their good name, fame, and credit,” by the malicious prosecution.
The respondent’s argument, that the ground of action in malicious prosecution is not necessarily an injury to character, is based upon a confusion of the wrong and the damage, and from the false analogy drawn from the nature of an action for. malicious arrest in a civil proceeding. Unquestionably, if imprisonment, or any other detriment to the person, or even to property, be the natural and legal consequences of the malicious prosecution, it may be alleged and proved in aggravation of damages; but that damage is not the cause and foundation of the action. The wrong, the mjuria, for which the law affords redress by an action for malicious prosecution, is an accusation of crime, made maliciously, without probable cause, and to the injury of one’s reputation. Hence the distinction between an action for malicious arrest in a civil proceeding and an action for malicious prosecution. Injury to character is not an element in the former, its essential ground being that the process of the law has been put in force maliciously, and without reasonable or probable cause; whereas the essential ground of the action for malicious prosecution is the injury to character involved in a false, wanton, and malicious accusation of crime (2 Robinson’s Practice, 594, et seq.; Brown’s Comm., 738; Lord Campbell, C. J, in Churchill v. Tiggers, 3 Ell. & Bl., 937; Leyland v. Taucre, 166 B., 669 ; De Medina v. Grove, 10 Adol. & El., N. S., 168).
It results, then, that since these several causes of action, viz., false imprisonment and malicious prosecution, are classed under different subdivisions of section 167, they are improperly united in the same complaint, unless it appear that they arise out of the same transaction or transactions connected with the same subject of action (sub. 1, sec. 167).
In these cases the pleader has attempted to obviate the objec *335 tion of misjoinder, by alleging that causes of action arise out of the same transaction. But this will not suffice. If. the transactions be not in fact identical, they cannot be made one and the same by bare averment. The pleader must exhibit their identity by a recital of facts; and the court must see, from the face of the pleading, that they are in truth but one and the same transaction (Flynn v. Bailey, 50 Barb., 78 ; Fellerman v. Dolan, 7 Abb., 395 ; Brown v. Buckingham, 21 How., 192 ). How, it is obvious, on the plaintiff’s own narrative of the facts of the case, that the two causes of action exhibited in the complaint stand upon distinct, substantive, and independent transactions. In the first instance there was an arrest and imprisonment, without any pretence of legal warrant. That accomplished, the cause of action for false imprisonment was consummate. Afterward, on another day, and at another place, the defendant preferred a criminal charge against the plaintiff, procured her to be arrested on a legal warrant, and to be prosecuted for a criminal offence. She was acquitted, and then (malice and want of probable cause being conceded) the cause of action for malicious prosecution was complete. In a common sense as well as a legal view, here are two separate and distinct transactions. They are connected, and only connected, in sequence of time, as, in truth, are all human events. The transaction out of which springs the action for false imprisonment was ended before commenced the transaction out of which arose the cause of action for malicious prosecution; for the moment the plaintiff was arrested under a legal warrant, the false imprisonment ceased and determined. Every lawyer will see that the transaction which suffices to support an action for false imprisonment must necessarily be different from a transaction which suffices to support an action for malicious prosecution. The transaction which will avail to support the former action, is simply an illegal imprisonment. The transaction which will support an action for malicious prosecution, is a legal arrest, effected maliciously and without probable cause. How, here are evidently two different and distinct transactions, unless we assent to the absurd proposition that a particular transaction, character- *336 ' ized by certain special and essential constituent circumstances, may be identical with another transaction distinguished by wholly dissimilar constituent elements. Nay, not only are the two transactions distinct, but they are inconsistent. In the one transaction there is a legal arrest, in the other an illegal arrest; and, except the same transaction may be, at one and the same time, both legal and illegal, it is impossible to affirm that these transactions are identical. Hence the legal impossibility that an action for false imprisonment can arise out of the same transaction with an action for malicious prosecution. In Sutton v. Johnstone (supra), Lord Mansfield, delivering the judgment of the Exchequer Chamber, says : “ There is no similitude or analogy between the action of trespass for false imprisonment and this kind of action, i. e. malicious prosecution; an action of trespass for false imprisonment is for the defendant’s having done that which, upon the stating of it, is manifestly illegal. This kind of action, i. e. malicious prosecution, is for a prosecution which, upon the stating of it, is manifestly legal.” Thus, it is apparent, that the present actions are ruled by the principle propounded in Smith v. Hallock (8 How. Pr. R., 73), Sweet v. Ingerson ( 12 How., 331 ), and Springsteed v. Lawson ( 14 Abb., 328 ), namely, that though the causes of action arise out of the same transaction, they cannot be united in the same complaint, if they be inconsistent in their nature. The incompatibility of malicious prosecution and false imprisonment is evident by the fact that the very circumstance which is essential and indispensable to the support of the one, would be fatal to the maintenance of the other. Eor, since the action for false imprisonment is based upon the illegality of the arrest, the very moment it appeared that the arrest was authorized by law, that instant the action falls to the ground. But the action for malicious prosecution necessarily assumes and implies that the prosecution was legal, else in contemplation of law there never was any prosecution—the gist of the wrong being, not an illegal prosecution, but a legal prosecution instigated maliciously and without reasonable or probable cause. So that the appropriate allegations and proofs by which these respective actions are to be *337 sustained are contradictory and irreconcilable. Assuming the two actions to proceed on the same transaction, evidence sufficient to support the one must necessarily be fatal to the maintenance of the other. The two actions are plainly inconsistent, and cannot be sustained on the theory that they arise out of the same transaction.
In the foregoing argument the most liberal meaning and effect are conceded to the word transaction employed in section 167 of the Code. But, it is proper to remark that a very respectable authority restricts the legal sense of the word to “ some commercial or business negotiation,” and denies its application to a tortious wrong (Barhyte v. Hughes, 33 Barb., 320 ); so in Smith v. Ingerson, and Springsteed v. Lawson (supra), it was held that an action for a breach of warranty on the sale of a horse, and an action for deceit on the same sale, could not be united in one complaint—the two causes of action not arising legally out of the same transaction. And in the former case, the court observed that the tendency of the courts is to restrain rather than enlarge the operation of section 167. Upon the principal points above discussed, the case of Anderson v. Hill ( 53 Barb., 238 ) is a direct and controlling authority, controlling as giving the deliberate and unanimous judgment of a General Term constituted of very eminent jurists. That case was this : The defendant assaulted the plaintiff, and, in the very act and instant of the assault, denounced the plaintiff as a “ thief.” Hot only were the assardt and slander simultaneous, but they originated in the same motive. Yet the court sustained a demurrer for misjoinder on the grounds that one cause of action was for injury to the person, and the other for injury to the character; and that they could not be said to-arise out of the same transaction, since the facts constituting the, one cause of action were essentially different from the facts constituting the other cause of action.
The demurrer under consideration is sustained as well by the practical interests of administrative justice as by the technical principles of law. The function and end of all pleading is; to raise distinct issues on the record, so that confusion and embar *338 rassment may be avoided at the trial, and the parties be admonished in advance of the allegation they are to support or to defeat (1 Chitty’s Pleading, 201). But how is it possible that the defendant, in these actions, can come prepared to meet the issues, when he is confronted with inconsistent charges ? How is it possible that the jury can decide the issues intelligently, when the proof which is essential to the support of the one action would be absolutely fatal to the maintenance of the other—when, for example, in one contention they would have to find the arrest was without warrant of law, and in the other that the imprisonment was in pursuance of legal authority ? How could the judge rule upon offers of evidence, when testimony which would be admissible in support of the claim for malicious prosecution would be irrelevant and immaterial to the cause of action for false imprisonment ? It is no answer to say that the plaintiffs should be compelled, at the trial, to elect on which cause of action to stand; for, beside the embarrassment to the defendant of apprising him only in the instant of trial of the demand he would have to meet, I see nowhere in the Code authority to oblige the plaintiffs to such election (Smith v. Douglass, 15 Abb., 266 ; Blossom v. Barrett, 37 N. Y., 436 ). But the Code, in section 144, does make specific provision for correcting a complaint in which causes of action are improperly united. The demurrer is well taken; and the order overruling it must be reversed, with leave to plaintiffs, on payment of costs, to amend their complaints by stating one cause of ■action.