§ 462. I have thus described the cases in which but one cause of action is alleged, although the many and sometimes conflicting demands for relief may make it appear that several causes of action have been united and mingled together in the pleading.. I have stated a general principle which will furnish a certain test for determining all such cases, by ascertaining what allegations contain the cause of action," and what contain the demands for relief, and by showing the essential nature of each, and the necessary distinctions between them. I shall now proceed to consider the classes of cases in which different causes of action are united either properly or improperly.

IV. The Joinder of Causes of Action arising out of the same Transaction or Transactions connected with the same Subject of Action; Legal meaning of the terms "Transaction" and "Subject of Action."

§ 463. The class which is described by the language of the codes quoted in the above heading is broad, comprehensive, vague, and uncertain. The principal design was undoubtedly to embrace the vast mass of equitable actions and causes of action which could not be classified and arranged in any more definite manner; and the language was properly left vague, so that it might not in any manner interfere with the settled doctrines of equitable procedure and pleading, parties and remedies. Although this general design is very apparent, yet it is no less evident that the author of the clause failed to distinguish between the "cause of action" and the remedy or relief which is sought to be obtained by means of the action. The most frequent application of this class in the actual administration of justice has been and will be to equitable actions: but the language is not confined to them; it includes legal controversies as well. If all the other requisites of the statute are complied with, legal causes of action of the most dissimilar character — for example, contract and tort-may be united in one proceeding, provided they all arise out of the same transaction, or out of transactions connected with the same subject of action. With respect to equitable cases, there cannot be much difficulty; it is always easy to say, and perhaps to see, that the facts constituting the causes of action arise at least in some vague manner from the

same transaction, or from transactions connected with the same subject of action. With respect to legal cases the difficulty is much greater, and is sometimes impossible to be overcome by any logical reasoning. The question will be sometimes presented, not only whether the facts constituting two or more causes of action have arisen from the same transaction, but whether it is possible, in the nature of things, that they could arise in such a

manner.

.

§ 464. A full interpretation of the language used in the codes would result in a general rule applicable to all actions; a rule which should determine when causes of action may and do arise out of the same transaction, or out of transactions connected with the same subject of action. This rule would be obtained, not from an analysis of all possible causes of action, but from a construction of the language used by the legislature; and it would require a legal definition, in an accurate but universal manner, of the terms " transaction," "connected with," and "subject of action." These three terms are the controlling words upon which the whole clause turns; and until the courts shall have defined them in a general and positive manner, all attempts at interpreting the language and deducing any comprehensive and practical rule from it must be futile. Until such a definition is made, each case must be decided upon its own. circumstances, in a mere empirical method, so that the confusion and uncertainty will continue, and even increase, in the place of the uniformity and certainty in the practice which the profession and suitors have the right to demand. In short, the courts must break away from the judicial habit which has of late years grown upon them, and must be willing to attempt the discussion and settlement of definitions, principles, and doctrines connected with the reformed procedure, in a general and comprehensive form. Although little aid can be derived from judicial decisions, I shall attempt the extremely difficult task of defining these terms, or, to be more accurate, shall attempt to describe their legal significance and effect, and thus to aid in reaching a general rule or principle by which to determine whether any given cases are embraced within the class designated by the legislature.

§ 465. In corroboration of the statement made above in regard to the general purport and object of the class in question, I quote

the language used by an eminent judge of the New-York Court of Appeals, which, while it contains some unjust remarks upon the authors of the New-York code, is a very pointed and accurate description of the clause and of its immediate design: “In respect to the joinder of causes of action, the provision of the law, so far as is material to the question, now is, that the plaintiff may unite in the same complaint several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, where they all arise out of the same transaction or transactions connected with the same subject of action.' The authors of the code, in framing this and most of its other provisions, appear to have had some remote knowledge of what the previous law had been. This provision as it now stands was introduced in the amendment of 1852, because the successive codes of 1848, 1849, and 1851, with characteristic perspicacity, had in effect abrogated equity jurisdiction in many important cases by failing to provide for a union of subjects and parties in one suit indispensable to its exercise. This amendment, therefore, was not designed to introduce any novelty in pleading and practice. Its language is, I think, well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretation which shall be found most convenient and best calculated to promote the ends of justice. It is certainly impossible to extract from a provision so loose, and yet so comprehensive, any rules less liberal than those which have long prevailed in courts of equity."1 Mr. Justice Comstock plainly regards it unnecessary, if not impossible, to attempt a definition of the terms employed in the passage which he quotes, and would leave each case to be decided upon its own circumstances. This is undoubtedly the easier method for the courts to pursue; but suitors, as well as the profession, have a right to ask from them some rules by which a reasonable degree of certainty as to the correct manner of bringing and conducting causes shall be secured. Regarded as a statutory enactment of the equity doctrine touching the joinder of causes of action in one suit, the clause perhaps requires no special interpretation, since it may be assumed to permit the previous equitable principles and rules of procedure to exist unchanged. In this light alone it is treated by Mr. Justice

1 N. Y. & N. H. R. R. v. Schuyler, 17 N. Y. 592, 604, per Comstock J.

Comstock in the extract taken from his opinion. But as it applies also to legal actions, and as there were no prior doctrines and rules of practice in courts of law which it reproduces or suffers to remain operative, it does as to them "introduce a novelty in pleading and practice." In order to fix its application in such cases, the meaning of its controlling terms must be determined. There was no prior rule of the common-law procedure which permitted the union of a claim upon contract with another arising from violence to property or person under any circumstances, and yet it is possible that such a combination may be made by virtue of this particular provision.

§ 466. I shall first collect some general observations which have been made by the courts upon the legal import of these terms, and shall, with whatever aid is derived from the judicial interpretation, attempt an independent analysis. A complaint united a cause of action for an assault and battery with one for slander, alleging that the defamatory words were uttered while the beating was in actual progress. To a demurrer for a misjoinder, it was answered that both causes of action arose out of the same transaction. The court disposed of this position in the following manner: "It by no means follows, that, because the two causes of action originated or happened at the same time, each cause arose out of the same transaction. It is certainly neither physically nor morally impossible that there should be two transactions occurring simultaneously, each differing from the other in essential attitudes and qualities. As here, the transaction out of which the cause of action for the assault springs is the beating, the physical force used; while the transaction out of which the cause of action for the slander springs, is not the beating or the force used, but the defamatory words uttered. The maker of a promissory note might, at the very instant of its delivery and inception, falsely call the payee a thief; and yet who would say that the two causes of action arose out of the same transaction? It has been held that a contract of warranty and a fraud practised in the sale of a horse at the same trade did not arise out of the same transaction, so as to be connected each with the same subject of action, and that a complaint containing both causes of action was demurrable.1 Assault and battery and slan

1 Sweet v. Ingerson, 12 How. Pr. 331.

der are as separate and distinct causes of action as any two actions whatever that can be named. The subjects of the two actions are not connected with each other. Each subject is as distinct and different from the other as the character of an individual is from his bodily structure. The question is not whether both causes of action sprang into existence at the same moment of time. Time has very little to do with solving the real question. The question is, Did each cause of action accrue or arise out of the same transaction, the same thing done? It is apparent that each cause of action arose, and indeed must necessarily have arisen, out of the doing of quite different things by the defendant, different in their nature, in all their qualities and characteristics, and inflicting injuries altogether different and dissimilar. The same evidence would not sustain each cause of action, and they may require different answers." It has been held, however, that the two causes of action under exactly the same circumstances do arise out of the same transaction, and may be united in the same complaint.2

§ 467. A complaint contained one cause of action for the breach of a warranty given on the sale of a horse, and a second cause of action for fraudulent representations respecting the quality and condition of the horse made at the same sale, the plaintiff claiming that both causes of action arose out of the same transaction. The court said: "It is somewhat difficult to deter

1 Anderson v. Hill, 58 Barb. 238, 245, per T. A. Johnson J.; and see Dragoo v. Levi, 2 Duval (Ky.), 520, which reaches the same conclusion. It should be noticed that Judge Johnson offers no affirmative definition of 66 'transaction," except in making "the same transaction" equivalent to "the same thing done."

2 Brewer v. Temple, 15 How. Pr. 286; Harris v. Avery, 5 Kans. 146. The first of these was a special term decision, and is expressly overruled in Anderson v. Hill. I quote from the opinion in the other as an example of the argument on the other side of the question. The defendant had wrongfully arrested the plaintiff, and at the same time called him a thief. The court say: "We think that these facts constitute only one transaction.... Our code has abolished all common-law forms of action, and has estab

lished a system for the joinder of actions more philosophical and complete in itself. It follows the rules of equity more closely than it does those of the common law, one object seeming to be to avoid the multiplicity of actions, and to settle in one suit as equity did, as far as practicable, the whole subject-matter of a controversy. It is probably true that the two causes of action for assault and battery and for slander cannot, under our code, be united, unless both arise out of the same transaction; but we do not know any reason why they should not be united when both do arise out of the same transaction." The court here simply assumes that both causes of action did arise out of the same transaction, but does not venture upon any reasons for that opinion. The decision is a mere begging of the question.