I am still of the opinion that the demurrers were well taken for the reasons assigned at the special term. Bu t as the case has been argued before us with much force and earnestness, by one of the learned authors of the code, I will examine one or two of his propositions a little more fully.
The third point of the learned counsel claims that “ the objection that the complaint is demurrable because the causes of action are some of them against a trustee and others on contract, has not the least foundation. The causes of action all arise out of contract, express or implied. The obligations of the trustee all grow out of his undertaking as such. If the causes can all be included in one of the classes mentioned in § 167, that is enough, though some of them might also be included in another.”
This proposition involves the construction to be given to section 167 of the Code. If the construction contended for is sustained, then it follows that a plaintiff may unite in one complaint, a claim upon a promissory note for the payment • of a sum of money with a claim upon another contract to deliver a thousand bushels of wheat, and a claim for the specific performance of another contract to convey a farm, and a claim upon a fourth contract for the execution of a trust. I am unable so to construe the section in question. On the contrary, it seems to me quite clear that the terms of the section and the other provisions of the Code, as well as the settled principles of good pleading, are irreconcilable with the views of the learned expounding author.
The section (167) provides that the plaintiff may unite several causes of action in the same complaint where they all arise out of
*1401. Contract express or implied; or
2. Injuries with or without force to the person; or
3. Injuries with or without force to property; or
4. Injuries to character; or
5. Claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same; or
6. Claims to recover personal property, with or without damages for the withholding thereof; or
7. Claims against a trustee by virtue of a contract or by operation of law.
To any one acquainted with the law as it stood prior to the Code, it is quite obvious that this section is mainly an embodi,ment of the rules of pleading as they existed, with some omissions and numerous imperfections. The first class includes the old action of assumpsit and debt upon contract and covenant. The second embraces actions of assault and battery, false imprisonment, &c. The third, refers to actions of trespass or case for injuries to property. The fourth, is confined to actions for defamation. The fifth, includes actions of ejectment, and perhaps, suits for a specifice performance, although, for reasons hereafter adverted to, it is doubtful whether the two can be joined. The sixth embraces trover and replevin; and the seventh covers all cases of trust. It is also apparent that some actions, as suits for divorce, actions upon judgments, and actions for partition of lands, do not fall within any of the classes.
A legitimate construction of this section will not permit the joining of causes of action which belong to more than one class. Although many actions for the recovery of real or personal property arise out of contract, still they are not to be united with a simple contract for the payment of money. Each subdivision must be interpreted with reference to the others; and the provision made in the fifth and sixth, for the recovery of real and personal property, to which title is given by contract, shows that the legislature did not intend to include those contracts in the first class. Otherwise many actions would fall under more than one head, and the different classes run into each other; and thus *141the object of claissification would be defeated. Moreover, a party bringing an action to recover personal property claimed by virtue of a contract, might join with it a claim upon a promissory note, upon the ground of the contract, under the first class, or a claim for personal property tortiously taken, upon the ground that the first cause of action was under the sixth class; and, if it be true in law as in mathematics, that things equal to the same thing are equal to one another, a count on a simple contract to pay money might be joined with a count for personal property unlawfully taken. We have too much respect for the law makers to believe that they could have contemplated so great absurdities.
We have given what we consider to be a fair construction to the language of the section. But we. are not left to the mere legal rules of interpretation. The last clause fixes the meaning in terms which can not be misunderstood, when it declares that “ the causes of action, so united, must all belong to one only of these classes.” This is equivalent to saying that every cause of action belongs to but one class, and expressly forbids the union of causes belonging to different classes. How it can be seriously contended, in the face of this provision, that a cause of action upon a simple contract for the payment of money, can be united with a claim against a trustee, or with a claim to remove a trustee and have a receiver appointed, as is attempted in this case, we are at a loss to conceive; especially when it is remembered that the seventh class expressly includes “ claims against a trustee by virtue of a contract.”
But it is said that our construction “ will lead to the grossest absurdities.” To this it may be answered, that we have no authority to strike out words from á plain enactment of the legislature to make statutes consistent; and while the word “ only” remains in the clause no other interpretation is admissible. Moreover, for the court to attempt to correct and reconcile the statutes would be an endlesss as well as dangerous task. This construction, however, does not lead to, but, as we suppose, avoids absurdity. If there is any absurdity, it consists in the idea of settling all the controversies that may exist, however numerous, *142between the same parties in an ordinary trial by jury. This we admit is excessively preposterous.
It was well remarked by Justice Hand, in the recent case of Boyce vs Brown (7 Barb.), that “ all experience has shown that trial by jury is best adapted to direct issues.” He might have added, that the issues must be not only reasonably simple but reasonably few in number. In this respect those who advocate the union of many causes of action in one suit, manifest their ignorance of the true nature of trial by jury. For, when it is remembered that the theory of jury trial requires twelve men to be unanimous upon a disputed point, and that they must attain that unanimity in regard to every issue submitted to them; that they usually take no notes of the evidence, and consequently can not always bring it to mind after they retire; that a disagreement as to one essential issue renders a new trial as to all, necessary; it requires but little experience to discover that the fewer and simpler the questions, the better they are likely to be decided; that a multiplicity of issues increases the chance of a disagreement; that in long and complicated trials the jury too often either look to the judge as a guide, or resort to those compromise verdicts which show that the real merits have been lost sight of. It may be safely said that singleness and simplicity in this respect are indispensable to the full enjoyment of the benefit of trial by jury.
. But there are other sections of the Code inconsistent with the practice of uniting such claims as are -attempted to be joined in this case. Sections 253 and 254 provide that issues of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless waived; and that all other issues are triable by the court. Although there is no express prohibition against uniting a cause of action 'triable by the court with one triable by a jury, it is obvious from the various provisions in relation to trials, verdicts and judgments, that such union is not contemplated; nor is it practicable, in our judgment. In the case before us, the plaintiff claims judgment for $4000 against one of the defendants upon a contract of indemnity to which the *143others are not parties. If issue of fact be joined on this it must be tried by a jury, if either party wishes. In regard to another defendant the plaintiff charges that he is unfit to serve as a trustee, and prays that he may be removed and a receiver appointed of the estate. This is a matter triable by the court according to the Code; and, according to common sense and the nature of things, it can not be tried by a jury. Now there is no provision found either in the code or in the practice of the courts, for trying part of a cause in one forum and part in another; or part at one time, and part at another, where issues of fact only are joined. The clause in §254 authorizing the court " to order the whole issue, or any specific question of fact involved therein, to be tried by a jury,” applies only to actions triable by the court, and is analogous to the former practice in chancery. It has no application to actions which must be tried by a jury. In such actions all the issues of fact must be submitted to the jury at thé same time. If, therefore, there was nothing else in the code to forbid the joinder of such' causes of action, the fact that some of the issues of fact which may be formed, are to be tried by a jury, and others by the court, would seem to present a difficulty almost, if not quite, insurmountable.
But it is said that we must construe the Code liberally. This is a very common argument, and is not unfrequently urged by both parties; meaning thereby a construction in their favor, re-~ spectively. Section 159, however, defines the liberality which courts are to exercise as that which promotes substantial justice. To permit the joinder of causes of action separate and dissimilar in their nature, requiring different trials, is not the liberality contemplated by the law; for, instead of promoting justice, it would tend to confusion and uncertainty.
Nor is it by any means certain that such a mode of pleading, if allowed, and if all the issues could be tried at once, would save expense to the parties, as is sometimes supposed. If the four causes of action first above named should be joined in one suit, and issues of fact formed thereon, it might very well happen that four different sets of witnesses would be required, coming from *144distant parts of the state. This, of itself, renders it difficult for the parties to he fully prepared for trial, and hence causes are put off from term to term. Add to this, the increased length of the trial, the probability of a disagreement of the jury, or of errors of the court requiring another trial, and it will be seen, by those who are capable of judging, that the advantage of trying numerous issues at once, in point of economy, are very questionable.
However this may be, there can be no doubt that the Code has hitherto utterly failed to fullfil the predictions of those who claimed that it would diminish the quantity or aggregate expense of litigation. On the contrary, our courts are, in some sections of the state, flooded with questions arising upon its new provisions or its unusual phraseology. Hundreds and thousands of cases are carried from court to court to settle the meaning of ambiguous or unintelligible language; and it is believed, notwithstanding the great increase of the judicial force of the first district, and its acknowledged ability and industry, that there are more causes now pending in that district alone, than there were in the whole state, at any time prior to the new system.
It is in truth greatly to be regretted, that those who assumed the responsibility of devising a remedy for the insufficiencies of the former system, did not more fully understand and appreciate the true cause and nature of the evils to be remedied; which arose mainly from a want of sufficient judicial force to dispose of the rapidly increasing business of a growing state and a commercial people. But in this age of progress, it not unfrequently happens, that alteration is mistaken for reformation, and the public, feeling the necessity of some improvement, is too often contented with a mere change; not distinguishing, at first, between the benefits of a solid reform and the crude innovations of conceited pretension.
Judgment for the defendants.