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2 Bank of Commerce v. Rutland etc. R. R. Co. 10 How. Pr. 1. Compare Scarborough v. Smith, 18 Kan. 406.

3 Swift v. Kingsley, 24 Barb. 541; Boeckler v. Mo. Pac. Railway Co. 10 Mo. App. 448; Krutz v. Fisher, 8 Kan. 90; Potter v. Earnest, 45 Ind. 416; Silvers v. Railroad Co. 43 Ind. 445; Clarke v. Iron Co. 9 Mo. App. 446; Victory Webb Manuf. Co. v. Beecher, 55 How. Pr. 193; Summit Co. Bank v. Smith, 1 Handy, 575; Haskell v. Haskell, 54 Cal. 262.

4 Ford v. Mattice, 14 How. Pr. 91; 221; Ferguson v. Gilbert, 16 Ohio St. 88.

Birdseye v. Smith, 32 Barb.
And see? ante.

5 Roberts v. Leslie, 14 Jones & S. 76. King, 7 Colo. 436.

And see Leitensdorfer v.

6 Fern v. Vanderbilt, 13 Abb. Pr. 72; Nash v. McCauley, 9 Abb. Pr. 159; Sturges v. Burton, 8 Ohio St. 218.

7 Jones v. Palmer, 1 Abb. Pr. 442; Stearns v. Dubois, 55 Ind. 257. Under the Iowa Code, the same cause of action may be stated in different counts and in different forms: Van Brunt v. Mather, 48 Iowa,

503.

8 Velie v. Newark City Ins. Co. C5 How. Pr. 1; 12 Abb. N. C. 309; 3 Civ. Proc. R. 252; Longprey v. Yates, 31 Hun, 432; Wilson v. Smith, 61 Cal. 209. And see Talcot v. Van Vechten, 25 Hun, 565.

9 Young v. Edwards, 11 How. Pr. 201; Curtis v. Buckley, 14 Kan. 449; Hillman v. Hillman, 14 How. Pr. 456; Sturges v. Burton, 8 Ohio St. 215; Comstock v. Hoeft, 1 N. Y. Law Bull. 43. See Hentig v. Kansas Loan & Trust Co. 28 Kan. 617, 620.

10 Ford v. Mattice, 14 How. Pr. 91. The mere fact that a complaint is divided into several paragraphs, each separately numbered, is alone insufficient to identify them as distinct counts, relating to different causes of action: Merrill v. Dearing, 22 Minn. 376. See Welch v. Platt, 32 Hun, 194; 19 N. Y. Week. Dig. 265.

11 Dickens v. N. Y. etc. R. R. Co. 13 How. Pr. 228; Lackey v. Vanderbilt, 10 How. Pr. 155.

12 Dickens v. N. Y. etc. R. R. Co. 13 How. Pr. 228; Dunning v. Thomas, 11 How. Pr. 281. And see Cheney v. Fisk, 22 How. Pr. 83. 13 Carney v. Bernheimer, 3 N. Y. Law Bull. 22.

237. Joinder of causes of action. As it respects the joinder of several causes of action under the Code system of pleading, it is announced as a general principle that where different causes of action are of the same character, and between the same parties litigant, and the joinder thereof is convenient to them, the court will usually refuse to entertain an objection to the joinder.1 The plaintiff may unite, in the same complaint or petition, two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, and they may be enforced in the same action,

if otherwise consistent with the rules prescribed for the joinder of actions." So, the provision of the Code permitting the plaintiff to unite in one action, all causes of action arising from the same transaction or transactions connected with the same subject of action, includes causes of action ex contractu and ex delicto; but if the causes of action do not arise from the same transaction or transactions connected with the same subject of action, then causes of action ex contractu cannot, in general, be united with causes of action ex delicto.1 Causes of action arising out of contract, express or implied, and affecting all the parties, may clearly be joined ; but this rule is to be taken in connection with the rule that only such causes of action can be joined as are consistent with each other. Those arising on contract, but inconsistent with each other, cannot be joined. And causes of action generally, which do not affect the same parties, cannot be joined. Thus, a cause of action against one defendant, and another cause of action against the same defendant and the defendant pleaded with him, both causes of action being for damages for false representations, cannot be properly joined. So, another requisite to the joinder of several causes of action is, that those united in the same complaint or petition must not require different places of trial.10 And the facts showing that the several causes of action united arose out of the same transaction, should be set forth in the complaint, so that the court may see that the joinder is proper. Subject to the general rules above stated, a cause of action for false imprisonment, and one for malicious prosecution, when both arise out of the same transaction, may be joined; 12 so, an action for assault and battery may be joined with one for false imprisonment,13 or for any other injury to the person;1 so, causes of action for slander, libel, and

malicious prosecution may be joined; 15 so, trespass to the person and to property, arising out of the same transaction, are joinable; 16 so, a cause of action on a contract, and for fraud or negligence directly connected with the contract, may be joined; and it was held, that a cause of action for an injury to a horse by excessive driving was properly joined with one for conversion of a horse.18 Several causes of action arising out of claims to recover real property, with or without damages for the withholding thereof, may be united in the same complaint.19 Causes of action for the recovery of real property, for the value of the rents and profits, and for the partition of such real property, may bo joined.20 And joinder of causes of action for the partition of real and of personal property is allowed.21 In respect to qui tam or popular actions, given by statute for the recovery, in whole or in part, of forfeitures or penalties, it is held that several causes of action for penalties under the statute may be united in the same complaint or petition." But it was held that an action for a statutory penalty for exacting excessive fare, and for personal injuries in ejecting the passenger from the cars on a subsequent trip, on the same day, could not be properly joined. A claim for damages sustained by reason of a failure to enter satisfaction of an extinguished encumbrance, and a claim for the penalty for failure to enter satisfaction, are separate causes of action, and should be set out in separate counts, but may be joined in the same petition.24 Although a plaintiff may have both legal and equitable relief in the same action, yet the two kinds of relief must be consistent with each other, and this rule is held to be violated where an action is brought to recover a statute penalty for violating a city ordinance, and to enjoin a continuance of the violation.26

25

1 King v. Farmer, 88 N. C. 22. And see Young v. Young, 81 N. C. 91.

2 Gridley v. Gridley, 24 N. Y. 130; Lattin v. McCarty, 41 N. Y. 107; N. Y. Code Civ. Proc. 484; Gray v. Dougherty, 25 Cal. 265 Beck v. Allison, 56 N. Y. 366; Montgomery v. McEwen, 7 Minn. 351; Wilder v. Ranney, 16 N. Y. Week. Dig. 478; Welch v. Platt, 32 Hun, 194.

3 See N. Y. Code Civ. Proc. 484; Barr . Shaw, 10 Hun, 580; Henderson v. Jackson, 40 How. Pr. 168; 9 Abb. Pr. N. S. 293; 2 Sweeny, 324; Anderson v. Hill, 53 Barb. 238; Jones v. Steamer Cortez, 17 Cal. 487; Harris v. Avery, 5 Kan. 146; Sturges v. Burton, 8 Ohio St. 218; De Witt v. McDonald, 59 How. Pr. 411; Polley v. Wilkisson, 5 Civ. Proc. R. 135.

4 Sturges v. Burton, 8 Ohio St. 218; Jones v. Johnson, 10 Bush, 649; Henshaw v. Noble, 7 Ohio St. 226; Berry . Carter, 19 Kan. 135. A cause of action arising from tort may be joined with one arising on contract, if they are between the same parties, in the same right, and have the same venue: Turner v. First Nat. Bank, 26 Iowa, 562, Where a complaint states a cause of action ex delicto, no recovery can be had upon a cause of action ex contractu not embraced in such statement: Minneapolis Harvester Works v. Smith, 30 Minn. 399.

5 Bank of British America v. Suydam, 6 How. Pr. 379; Stewart v. Balderston, 10 Kan. 131; Gridley v. Gridley, 24 N. Y. 130; Vogler v. World Mut. L. Ins. Co. 51 How. Pr. 301.

6 Smith v. Hallock, 8 IIow. Pr. 73; Brown v. Ashbough, 40 How Pr. 226.

7 Nichols v. Drew, 94 N. Y. 22, 26.

8 Hess v. Buffalo etc. R. R. Co. 20 Barb. 391; St. Joseph's Orphan Aylum v. Wolpert, 80 Ky. 86; Pulen v. Reynolds, 22 How. Pr. 353; Howse v. Moody, 14 Fla. 59; Turner v. Duchman, 23 Wis. 500; North Carolina Land Co. v. Beatty, 69 N. C. 329; Johnson v. Kirby, Sup. Ct. Cal. 3 West C. Rep. 482; Enos r. Thomas, 4 How. Pr. 48. But it is not necessary that all the parties should be equally affected: Earle 2. Scott, 50 How. Pr. 506; Vermeule v. Beck, 15 IIow. Pr. 333.

9 Pracht v. Ritter, 16 Jones & S. 509.

10 Hackett v. Carter, 38 Wis. 394; Dewer v. Ward, 12 How. Pr. 419. 11 Flynn v. Bailey, 50 Barb. 73. And see Polley v. Wilkisson, 5 Civ. Proc. R. 135.

12 Barr v. Shaw, 10 Hun, 580; Krug v. Ward, 77 Ill. 603. And see Castro . Uriarte, 2 Civ. Proc. R. 210. But see Nebenzahl v. Townsend, 61 How. Pr. 353; 10 Daly, 232.

13 Wiley v. Keokuk, 6 Kan. 94; Cahill v. Terrio, 55 N. H. 571.

14 Home v. Peckham, 6 How. Pr. 220; 10 Barb. 656.

15 Watts v. Hilton, 3 Hun, 606; Hull v. Vreeland, 42 Barb, 543; 18 Abb. Pr. 182; Shore v. Smith, 15 Ohio St. 173; Brown v. Rice, 51 Cal. 489. And see Harris v. Avery, 5 Kan. 146.

16 Holmes v. Sheridan, 1 Dill. 351.

17 Jones v. Johnson, 10 Bush, 649. And see Badger v. Benedict, 1 Hilt. 414; 4 Abb. Pr. 176. Compare Graves v. Waite, 59 N. Y. 156.

18 Summerville v. Metcalf, 15 N. Y. Week. Dig. 154. See Silver v. Holden, 18 Jones & S. 236.

19 N. Y. Code Civ. Proc. 484; Vandevoort v. Gould, 36 N. Y. 639; Sternberger v. McGovern, 56 N. Y. 12; 15 Abb. Pr. N. S. 257; Van Alstiner. McCarty, 51 Barb. 326; McKinney v. McKinney, 8 Ohio St. 423; Perry v. Richardson, 27 Ohio St. 110.

20 Scarborough v. Smith, 18 Kan. 399. And see Merrill v. Dearing, 22 Minn. 376; Black v. Drake, 23 Kan. 482. A cause of action for trespass upon land may be united with a cause of action for conversion of personal property, where they both arise out of the same transaction: Polley v. Wilkisson, 5 Civ. Proc. R. 135.

21 Prentice v. Janssen, 7 Hun, 86.

22 Grover v. Morris, 73 N. Y. 473, 479. But see Brown v. Rice, 51 Cal. 489.

23 Sullivan v. New York etc. R. R. Co. 1 Civ. Proc. R. 285; 19 Blatchf. 385. And compare Wiles v. Suydam, 64 N. Y. 173. But see Railroad Co. v. Cole, 29 Ohio St. 126; Railroad Co. v. Moore, 33 Ohio St. 384; Railroad Co. v. Cook, 37 Ohio St. 265.

24 Scott v. Robards, 67 Mo. 289.

25 Linden v. Hepburn, 5 How. Pr. 188.

26 Lamport v. Abbott, 12 How. Pr. 340. The law does not require that legal and equitable causes of action shall be united, even when they arise out of the same transaction, or are connected with the subject of the action. It is a privilege conferred upon the plaintiff, which he may avail himself of or not, solely at liis own election: Bruce v. Kelly, 5 Hun, 229.

238. What constitutes a single cause of action. — Since the law, in order to prevent vexatious or oppressive legislation, forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions for each, it becomes important to ascertain when the causes of action are identical, or what is to be deemed a single or entire demand within the meaning of the authorities.1 The distinction usually made between demands or rights of action which are single and entire, and those which are several and distinct, is that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts.2 In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be;3 and in respect to contracts, express or implied, each contract affords one and only one cause of action. Nor does the case of a contract, containing several stipulations to be performed at different times, constitute any exception to the rule; 5 for although an action may be maintained upon each stip

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