concurring and dissenting:
I concur in tbe judgment on the ground that the action was barred by the statute of limitations.
*251I dissent from that part of the opinion of the court in. which it is held that there was in this case a misjoinder of causes of action. If the principle of the decision upon that point affected only suits for taxes the matter would, perhaps, not be of sufficient consequence to justify any extended statement of the grounds of my dissent, for as long as the plain injunctions of the statute are obeyed there ought, never to be more than one claim for delinquent taxes pending against the same person; and consequently it can not be presumed that the privilege of uniting two or more such claims in one action will ever hereafter be of any practical importance. But it will be seen from the reasoning of the court, and the authorities cited to sustain its conclusions, that the decision rests upon a principle that will include a great many other causes of action besides delinquent taxes, and that if it is consistently adhered to, the beneficent rule of the statute will be very greatly restricted in its operation. For in effect it is held that there is no implied contract to pay taxes because, and only because, the obligation is imposed by statute, and does not depend for its validity upon the individual assent of the taxpayer; because, in short, it is an obligation operating in invitum. Now, if this is a good reason for holding that there is no implied promise to pay a tax, it must equally follow that there is no implied promise to discharge any common law or statutory obligation which operates in invitum, and the result is that no two demands of that character can hereafter be united in the same action. This I regard as an extremely pernicious consequence, and therefore I shall endeavor to show that the doctrine from which it flows, although true to a certain extent, has no application to the construction of section 64 of the practice act. For this purpose I shall rely to a great extent upon the cases and writers whose authority is in7 voked by the court. In the first place, however, I wish to call attention to a principle of legal construction, which seems to have been to some extent overlooked: The office of interpretation is to determine the sense in which words have been used. The same word does not always mean the same thing.' Not only are words employed in different *252senses in different statutes, but the instances are not rare in which a word has been held -to mean one thing in one part and another thing in another part of tho same statute. What is true of other words of ambiguous import is emphatically true of the word contract — a word that has been used by law-writers of the highest reputation and authority sometimes in a very enlarged, and at others in a much more restricted, sense. In order to determine its meaning in any particular statute in which it may be found, it will always be necessary to look to its context, to the subject-matter, and to the spirit and object of the lawr. To hold that, because in construing one statute it has been interpreted in its ordinary and more restricted sense, it must therefore be taken in the same sense in every other statute, is simply tó ignore one of the most familiar rules of legal construction. Yet this, in my opinion, is the mistake into which the court has fallen.
No one will deny that it has been frequently held, and correctly held, that a tax is not a debt or obligation ex con-tractu in the ordinary sense of those terms, or within the meaning of such statutes as the legal tender act, and the statutes of limitations, set-off, etc., of some of tho states. The question here, however, is not as to the ordinary sense of the word contract, standing by itself in an ordinary statute, but as to its technical sense, as a term of art, when combined in a technical phrase, in a statute relating exclusively to technical matters, and therefore necessarily the work of professional hands.
The civil practice act permits the joinder of causes of action arising out of contracts, express or implied. What did the lawyers who framed the code of practice mean by the expression “causes of action arising out of contracts, express or implied ?” Can it be doubted that they intended it to embrace all those causes of action which at common law were held to arise out of implied contracts? I at least entertain no doubt, and the authorities cited by the court (Bliss and Pomeroy) admit that the language of the act is to be taken in its broadest technical sense. This conclusion, moreover, is fortified by the fact that every considera*253tion of policy and convenience, as well as llie whole spirit and object of tire statute, favor such a construction.
The practice act is a remedial law. It was designed to simplify legal proceedings; to expedite them and render them less costly and burdensome to litigants. Many of its rules are borrowed from the practice in equity, and, in construing its provisions, courts have generally professed to be guided by the liberal and enlightened principles of equity, with a view to the promotion of justice, the discouragement of oppression and the prevention of needless expense and delay. For all these reasons, I not only feel authorized, I feel constrained, to give the largest and most liberal possible construction to the provision in question. For it can not be. denied that the rule of equity and of sound policy is against the unnecessary multiplication of suits. When a number of demands of similar nature, involving similar principles and results, capable of being heard together without inconvenience, and open to the same defense, can all be embraced in the same judgment, they ought to be united in the same action, not only for the sake of the litigants, but also for the sake of the public. This is the doctrine of equity (Story’s Eq. PL, secs. 530-1-2), and this is the spirit of section G4 of the practice act, as is shown by the restrictive clause near the end, which prohibits the joinder of actions, unless they “all belong to only one of these classes and shall affect all the parties to the action, and not require different places of trial.” This express limitation upon the right of uniting separate causes of action in the same suit proves that it was the intention of the framers of the law that, subject to its own positive restrictions, it should be largely and liberally construed. Exceptio probat regulam.
It is not denied — indeed, it is tacitly conceded, both in the argument of counsel and in the opinion of the court— that it would be better if the law allowed the joinder of the several causes of action set out in this complaint. The court decides, only because it feels compelled to decide, that a delinquent tax is not a “cause of action arising out of an implied contract.” To this conclusion it is forced by *254wliat it deems the overwhelming weight of authority. I might feel similarly constrained if I found the long list of cases cited by the court to be strictly in point, and .found nothing more on the other side than the two or three cases referred to in its opinion. But I think I may safely affirm that whoever will take the trouble to make a critical examination of the. authorities relied on will find that alargo number of them have a very remote, and some of them no bearing whatever on the question at issue. There are, however, quite a number of them, following the case of Pierce v. Boston (3 Met. 521), which hold that an obligation operating in invitum is not a contract in the ordinary sense of the word, and, therefore (on the principle that words are presumed-to be used in their ordinary sense unless there is something in the context or spirit and object of the law to prove the contrary) that taxes are not embraced by the words “contract” and “ debt,” as used in the legal tender act and in certain statutes of limitation, set-off, etc. I do not question the correctness of these decisions. They are, in fact, entirely consistent with the principle of interpretation -which I invoke; for in every single instance in which a tax has been held not to be a debt or obligation ex contractu,, the whole spirit and object and policy, and sometimes the express words, of the statute in question were opposed to an enlarged and liberal interpretation of the words. The fact, therefore, that an obligation imposed by law and operating in invitum is not a contract in the ordinary sense of the word was a perfectly valid ground for those decisions. But can it thence be inferred that such obligations were not held to be implied contracts at common law, and that they are not embraced in the provisions of section 64 of the practice act? This question is answered in the negative by the very authorities relied on by the court.
Bliss on Code Pleading, section 128, is cited. In that section the author is treating the identical question under consideration, and this is his language: “ The permission is to unite actions upon contracts, express or implied. It is said that an implied agreement is but an obligation, created by law, warranted by justice, but not by the assent — and *255often against the assent — of those to be charged. So far as this is so, such obligations have no affinity with contracts and can not upon principle be classed with them. To call such an obligation a contract Avas always a fiction.” This is the passage cited, and certainly it does show that the doctrine of implied contracts Avas ahvays, to a great extent, based upon a legal fiction. But Avhat if that legal fiction has been recognized and adopted by the statute as a means of definition, and as the basis of substantial rights ? In that case it seems to me that, at least for the purpose of construing the statute, the “convenient fiction” so cavalierly treated in the opinion of the court does “rise to the dignity of reality.” Noav, what,does Mr. Bliss say on this subject? I quote from the same section (128), a little lower clown: “There were cases (at common law) in Avhich assumpsit would lie where no promise, as a fact, could be implied; where the allegation of a promise was a naked fiction; Avhere there Avas an obligation merely, and Avhere, logically — if any logical deduction had gov'erned the common law pleaders Avhich did not spring from a fictitious premise — debt, or case, or trespass, should have been the form of action. I refer to legal obligations in respect to those through Avhom the debt accrued, and to obligations arising from injuries. Thus one might lay a promise from the husband or father to pay for necessaries furnished to a Avife or child, although furnished against his express command, and also lay a promise to pay for goods Avrongfully converted by the defendant, although under a claim of OAvnership. As the code expressly refers to implied contracts, these as ivell as those tohere the agreement is understood, xoill probably continue to be treated as agreements, and thus one of the most marked, fictions of the common law pleading is perpetuated.’'' From the last sentence in the above quotation (Avhich I have italicized), it clearly appears that this author, although disposed to find fault with the “common law fiction” of implied ■contracts, is nevertheless convinced that within the meaning and for the purposes of section 64 of the practice act that fiction has been “perpetuated.” What rank Mr. Bliss is to take as an authority on code pleading is not yet deter*256mined, and I have only been induced to quote his opinion at so much length because he is included in the list of authorities deemed “overwhelming” by the court. I have shown, I think, conclusively that upon the point at issue he ranges himself distinctly against the opinion of the court. So also does another text writer who is quoted at great length and highly commended by the court in connection with another branch of the case. (See Pomeroy’s Remedies and Remedial Rights, sections 492, 493, and cases cited.)
Upon the opinion of these two writers, in the absence of any authority to the contrary, I am willing to rest the correctness of my conclusion, that the provisions of section 64 of the practice act embrace all causes of action arising out of implied contracts, in the widest sense of that expression as used by common law pleaders.
It remains only to be seen whether the obligation of the tax-payer was one of those upon which a promise was implied at common law. That it was, has been held, not only in the cases referred to by the court, but in other cases to which I shall call attention, and the contrary has never, to my knowledge, been decided in any case. It has been frequently decided, and such is probably the settled law, that where the statute provides another remedy a suit for taxes can not be maintained; but it has never been denied that, in the absence of any other remedy, debt or assumpsit would lie for the collection of delinquent taxes. None of the cases cited in the opinion of the court are opposed to this statement. The utmost extent to which they go is, I repeat, that a tax is not a debt or obligation ex contractu, in the ordinary sense of those terms, and therefore that taxes are not debts or contracts within the meaning of certain statutes whose spirit and object do not embrace them. I have not the slightest fault to find with this doctrine. I only object to its application to a case which depends upon a different principle; for it is constantly to be borne in mind that the reason, and the only reason, why in those cases it was held that a tax was not a debt, was that it is an obligation imposed by statute and operating in invitum. But I have shown that, in the opinion of Mr. Bliss and Mr. *257Pomeroy at least, section 64 of the practice act embraces obligations of that precise description. I shall endeavor, further, to show from numerous decided cases that at common law a promise to pay was always implied where the law, whether common or statute law, or the judgment of a court, imposed an obligation to pay.
Three cases (1 Gill and J. 499; 39 Iowa, 60, and 2 Yerg. 167) are referred to by the court as holding that from the obligation to pay a tax a promise to pay will be implied. Y/e are left to infer that these are the only cases that sustain the doctrine, and an attempt is made to disparage their authority by pointing to the fact that they cite only Blackstone and Chitty, Jr., and that they assign no reasons for the doctrine stated. It is a mistake, however, to suppose that there are no other decisions to the same effect, and it is equally a mistake, in my opinion, to suppose that there is any real conflict between these decisions and the long list of cases cited in support of the conclusions of the court. If there Avere any such conflict it might be very pertinently remarked that even Blackstone and Chitty are better than no authority at all; and AA'hile it is true that they alone are cited in support of the doctrine stated in the three cases referred to, it is equally true that no decision and no writer is cited in support of the doctrine of Pierce v. Boston, and the other cases in which it has been folloAAred. But in truth, there seems to have been very little need of citing authority in support of either set of decisions, one of which rests upon the admitted fact that the word “contract,” in its ordinary sense, does not include involuntary obligations-, and the other upon the Avell-understood maxim of the common Iuav that, for the sake of affording a remedy, the law Avill always imply a promise from any legal obligation to pay. This principle is plainly stated in the case of The Mayor of Baltimore v. Howard, 6 Harris and Johns. 394, in which it was held that the action of assumpsit would lie for a delinquent tax. And in its practical form, I am not aware that the rule has ever been seriously questioned, although the explanation of its origin, or the ground upon AAdiich it rests, as given by Blackstone (3 Com. 158), has been un-*258favorably criticised. It makes no difference, however, •wliat the origin of the maxim was; it concerns us only to ascertain its meaning and proper application. When we know what causes of action were held to arise out of contract before the code, we shall know what causes of action can be joined under the provisions of section 64.
What is said by Blackstone in relation to implied contracts, in the passage referred to, is as follows: “ Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound, and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence or assessed by the interpretation of the law. For it is a part of the original contract entered into by all mankind who partake of the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever, therefore, the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge,” etc.
This is the doctrine, if not the exact passage, commented upon by Mr. Justice Story in the language quoted by the court from the decision in Bullard v. Bell, 1 Mason, 288. By reference to that case it will be seen that Judge Story expressly admits that a “mere legal liability, created by statute,” “may furnish the foundation or consideration of a contract, express or implied," although it “ is not of itself a contract.” All that he denies is so much of Mr. Blackstone’s reasoning as holds that it is a contract in'itself. He does not deny that the cause of action upon such an obligation is, in a technical sense, a cause of action arising out of contract. Moreover, the only reason given by Judge Story for dissenting from the doctrine as stated by Blackstone is an utterly inconclusive reason. He says: “ If it were universally true, then indebitatus assumpsit rvould lie to recover a fine on a criminal sentence or a penalty or forfeiture upon a penal statute, which certainly can not be pretended.” With all proper deference to the opinion of Judge Story *259(who, by the way, has been more than once repudiated by this court), I think a sufficient reason can be assigned why a fine or penalty or forfeiture was not recoverable in assump-sit without the slightest reference to the universality of the principle stated by Blackstone. The action of assumpsit, as is well known, lay only upon 'parol or simple contracts; it was not the remedy allowed for the recovery of any sum due by specialty. Therefore, when a sum certain iras due by statute the action of debt only would lie, for the statute was deemed for that purpose a specialty. This precise point is decided by Judge Story himself in the case under consideration, and in fact the point upon which the decision turns is that a sum certain due by statute is a sum due by specialty. (1 Mason, 289.) The action of debt was as much an action ex contractu as the action of assumpsit; the only difference was that debt was in some respects a moi’e extensive remedy than assumpsit. It would lie upon some contracts (specialties, including penal statutes), which would not support assumpsit. (1 Chitty’s Pl. 121.) It is therefore a complete non sequitur to argue that because the action of assumpsit would not lie to recover a statutory penalty there was no implied contract to pay it. The fallacy of such a conclusion is demonstrated more completely by the fact that assumpsit would always lie to recover m on ey due upon a statutory obligation in those cases where the statute could not be treated as a specialty (1 Chitty’s Pl. 119); that is to say, in all cases where the amount to be recovered was unliquidated. Por it is obvious that there is no principle upon which a promise to pay an uncertain amount can be implied which will not equally sustain the implication of a promise to pay a sum that is ascertained.
A great authority on common-law pleading has said “that all actions of debt whatsoever are founded upon a contract raised either in fact or by construction of law.” This was an admission made against himself in arguing the case of Hodsden v. Harridge (2 Saunders, 66) by Mr. (afterwards Chief Justice) Saunders. Considering lii.s high reputation as a lawyer, and the authority of his reports upon questions of pleading, such an admission, re*260ported by himself after his retirement from the bench, is, in my opinion, entitled to quite as much weight as a dictum of Judge Story.
But even admitting it to be true, for the sake of tire argument, that it is only where the action of assumpsit will lie that a promise to pay is implied, “ it is the general rule that, for money accruing, due under the provisions of a statute, the action of assumpsit may be supported unless some other remedjr is expressly given.” (See Hillsborough County v. Londonderry, 43 N. H. 453, and the long list of cases therein cited; see also Bath v. Freeport, 5 Mass. 325, and Watson v. Cambridge, 15 Id. 286.)
These were cases in which counties and towns were sued in assumpsit upon their statutory obligation to support paupers. In a case above cited (Mayor of Baltimore v. Howard, 6 Harris and Johns. 383) assumpsit was held to be the proper form of action for the recovery of a delinquent tax. In the case of Rann v. Green (Cowper, 474) Lord Mansfield held that the law raised an assumpsit upon the order of commissioners fixing the amount of tithes under a private act of parliament. That was an action for assumpsit for a sum liquidated by the order of the commissioners; in other words, it was a suit for a tax assessed upon the defendant by authority of law. In Peck v. Wood (5 Term R. 130) the defendant was sued in assumpsit upon his statutory obligation to contribute to the expense of a party wall, and the action was maintained. We have then, besides Blaekstone and Chitty, jun., the authority of Chief Justices Saunders, Mansfield and Kenyon of tire king’s bench, and the supremo courts of Massachusetts, Yermont, New Hampshire, Maryland, Tennessee and Iowa for the proposition that the law raises an implied promise upon statutory obligations, and of Mr. Bliss and Mr. Pomeroy that such promises are embraced by section 64 of the code. On the other side there is nothing except the case of Pierce v. Boston, and like cases, in which it has been held that an obligation, imposed by statute and operating in invilum, is not a *261contract in the ordinary sense of the term. In my opinion there is no conflict between the two classes of decisions, and I am confirmed in this view by the fact that, in the same State (Massachusetts) in which a tax has been held not to be a contract within the meaning of the statute of set-off, because it is an obligation operating in inviium, it has also been held that assumpsit will lie upon the statutory obligation of a town to support its paupers, and no one has suggested that the two decisions are in conflict.
In conclusion, I think I may fairly claim to have proved that section 64 of the code was intended to embrace all eases in which a contract was implied prior to its enactment, and that a contract was implied upon all statutory obligations to pay money. That a tax is a statutory obligation has not only been decided, but it cannot be denied. Indeed, it is something more than a statutory obligation. The people, acting in their primary capacity, have put into the constitution a distinct acknowledgment of the inherent duty of every citizen to contribute to the support of the government in proportion to his means, and they have expressly delegated to the legislature the power to levy uniform taxes. The legislature, therefore, does not impose the duty. It is a duty recognized as existing antecedent to any legislation — a duty not created, but merely regulated by law. No possible distinction can be drawn between the duty to pay taxes and the statutory duty to support paupers, or the common-law duty to support wife and children, to pay tithes, or compensate the owner of goods wrongfully converted. As has been said by the most recent American writer on the law of taxation (Burroughs, 254), “ a citizen enjoys the benefit of government, his person and his property are protected, and the expenses of the government are to be paid; will not the law in like manner raise an implied promise that the citizen shall pay his proportion of the expense? And when it is ascertained in the mode prescribed by law what amount he should pay, should there not be considered an implied promise that he will *262pay tbe amount? Taxes are a political necessity. If the law raises a promise to pay, that one of its citizens may not obtain the services or goods of another without compensation, surely it will raise it that the state may exist.”
Upon these grounds I disseut from the conclusion that there was a misjoinder of causes of action.-