mine the precise extent and boundaries of the first subdivision of § 167 of the code, which provides for the joinder of causes of action where they arise out of the same transaction or transactions connected with the same subject of action. In this case the plaintiff first counts in assumpsit on an alleged warranty of the horse, and in the second count for fraud and deceit in wrongfully concealing the defects of the same horse. It may be true that these causes of action arise out of the same transaction, to wit, the bargain for the purchase of the horse; but are they connected with the same subject of action? The subject of the action is either the contract of warranty, or it is the fraudulent concealment of the defects complained of. These causes of action cannot consist with each other. I am inclined to think that the object of the section was to allow the plaintiff to include in his com plaint two or more causes of action actually existing, arising out of the same transaction, and when a recovery might be had for both in the same action; and that the joinder must be of those causes of action which are consistent with, not those which are contradictory to, each other." 1 The judge here fell into at least one palpable error and misreading of the statute. If the causes of action arise out of the same transaction, it is not necessary that they should also be connected with the same subject of action. There are two alternatives: first, the causes of action must arise out of the same transaction, that is, one transaction; or, secondly, they must arise out of transactions which are themselves connected with the same subject of action. When it was conceded by the learned judge that the two causes of action in this case arose out of the same transaction, namely, the bargain for the sale of the horse, he had no room for further argument; the case was practically decided. The real question was, whether they did in fact arise out of the same transaction; whether the negotiation preceding the sale was the "transaction" within the legal meaning of the provision. The rule laid down at the end of the citation affords no help in solving the difficulty, if indeed it has any meaning whatever.

§ 468. In a case where the defendants

Sweet v. Ingerson, 12 How. Pr. 331, per Bacon J. What inconsistency exists between these two causes of action? Does the learned judge mean to be under

common carriers

stood that a vendor cannot enter into a contract of warranty, and also make false representations at the same sale, and in the same language?

had carried a quantity of wheat of the plaintiff on their boats from Buffalo to New York, the complaint separately stated two causes of action. The first alleged a wrongful conversion of 340 bushels of wheat, and demanded judgment for their value, as damages; the second alleged an overpayment of freight on the shipment to the amount of $170, and demanded judgment for that sum. In passing upon the question raised by the defendants' demurrer, the court said: "It must be admitted that the first cause of action is for a tort, and that the second is on an implied contract to recover back money paid by plaintiffs under a mistake of facts. But the counsel for the plaintiffs insists that both causes of action arise out of the same subject of action, viz., the transportation of wheat from Buffalo to New York, or arise out of transactions connected with that subject of the action, and are therefore joined under the first subdivision of § 167 of the code. Cases throw but little light on the unmeaning generality of the first subdivision of this section. Now, I do not think the transportation of the wheat to New York is the subject of the plaintiffs' action. The plaintiffs have two causes of action. The subject of the first would be the loss, waste, or wrongful conversion, of the 340 bushels of wheat by the defendants, and their wrongful neglect or act by which the plaintiffs lost their property. The subject of the second cause of action would appear to be the $170 of the plaintiffs' money, which the plaintiffs overpaid to the defendants on account of freight, and which the defendants ought to have paid back to the plaintiffs. But have both these causes of action, or subjects of action, arisen out of the same transaction, within the meaning of this provision of the code? I do not want to nullify the code, and I have no right to nullify it; and this provision has, or was intended to have, some meaning. Why, then, should I not say that the transaction in this case, out of which have arisen the plaintiffs' two causes of action, and subjects of action, commenced with the shipment of wheat at Buffalo, and has not ended yet, even by the commencement of this action; the plaintiffs' two causes of action being links in the chain of facts containing the transaction, and thus arising out of, or connected with, the same transaction? By the subject of action' in this section of the code must be intended, not the subjects of the different counts, or of the several causes of action, but of the action as a unit. To say that by the subject of action' is

meant the several causes of action nullifies this provision of the code. To give force and effect to it, it appears to me you must say that it means that the plaintiff can unite several causes of action against the same party, arising out of the same transaction, and nothing more; and you must treat the concluding words, or transactions connected with the same subject of action,' as useless and unmeaning surplusage. Upon the whole, I have come to the conclusion that the plaintiff had a right to unite the two causes of action in this complaint; but I have done so, knowing that no reasoning on this point can have much logical precision, or lead to a satisfactory result." 1

§ 469. This opinion, which I have quoted in full, is one of the most elaborate attempts to be found in the reports at an analysis and definition of these terms. Some observation's upon it are appropriate here, before passing to the other citations. It is plain that the learned judge labored under a hopeless confusion, both in respect to his notions of the meaning of the important terms, and in respect to his reading of the clause itself. He is completely afloat as to the legal import of "subject of action," constantly treating it interchangeably with "transaction," and, notwithstanding his disclaimer, confounding it with "cause of action." Why, in the one case, is the "subject of action" declared to be the conversion of the wheat, the wrongful act or neglect by which the wheat was lost to the plaintiff, that is, the very delict committed by the defendant, and in the other case declared to be the money, the very physical thing which the plaintiffs had mistakenly paid to the defendants, and which the defendants were under an implied contract to repay? It is selfevident that, if by the term "subject of action" is meant the delict or wrong by which the plaintiffs' primary right of property in their wheat was invaded, it must also mean the wrong in the other case, that is, the breach of the implied contract to repay the money; and if it denotes, in the one instance, the money which is the subject of the plaintiffs' claim, it must denote the same in the other. But the great error of the learned judge consists in his mistaken reading of the statute. The view of the plaintiffs' counsel, which he repudiates, was certainly simple and intelligible. That view regarded both causes of action as arising

1 Adams v. Bissell, 28 Barb. 382, 385, per Sutherland J.

out of one and the same transaction, the transport of the grain, with all of its incidents. After rejecting it, the judge, in fact, returns to this theory at last, and rests his decision upon it. In his discussion, however, he reverses the order of the statute; he treats it as though it required the "subjects of action" to be connected with one "transaction," instead of prescribing that the "transactions" should be connected with the same "subject of action;" and, finding that this construction leads him into difficulties from which there is no escape, he finally pronounces the important clause of the section useless surplusage, to be entirely rejected. I need hardly say that courts have no authority to reject any portion of a statute, unless it be absolutely meaningless. This clause is certainly not thus without meaning. Causes of action may arise from the same transaction, and they may arise from transactions which are connected with the same subject of action, that is, which have a common point of connection with which they are all united, and which common point is the subject of the action. This, I say, is far from meaningless; on the contrary, it is a simple and plain expression, as far as the language is concerned, when that language is used in its ordinary and popular signification. The difficulty, and the only difficulty, springs from the question, whether the words are thus used in their proper sense, or whether they must receive a special and technical legal interpretation in order to arrive at the legislative intent, and to frame from them a definite rule which shall be applicable to all possible cases. It is an abuse of judicial power to reject an express provision of a statute on the sole ground of a difficulty in understanding and enforcing it.

§ 470. In an action by a judgment creditor against his debtor and an assignee of such debtor to set aside transfers, to recover property, and for other relief, it was said by the court: "What is the subject of the action in this case? It is the restitution of the property of the judgment debtor, whom the plaintiff represents. To entitle himself to this relief, the plaintiff avers in his complaint different transactions out of which his right to a restitution flows.”1 There is here a plain confusion of ideas. The restitution of the debtor's property, which is the relief demanded, is the object of the action. If there is any thing connected with this matter clear,

1 Palen v. Bushnell, 46 Barb. 24.

it is that the authors of the code used the terms "subject of action and "object of the action" to describe different and distinct facts.

§ 471. The general theory of pleading and of actions embodied in the new system was stated with some fulness by the Supreme Court of California, in an action brought against a steamboat company by a passenger to recover damages. The plaintiff had purchased a ticket from San Francisco to San Juan, being led to believe, by public advertisements of the defendants, that the vessel landed at the latter place. She was carried on to Panama, the boat not stopping at San Juan, and was subjected to many personal discomforts and injuries, and also suffered consequential pecuniary losses and damage. The complaint was in the form of an action for deceit, rather than on the contract, and contained allegations of false and fraudulent representations. In respect to this complaint, the court pronounced the following opinion: "Our system of pleading is formed upon the model of the civil law, and one of its principal objects is to discourage protracted and vexatious litigation. It is the duty of the courts to assist as far as possible in the accomplishment of this object, and it should not be frittered away by the application of rules which have no legitimate connection with the system. The provisions for avoiding a multiplicity of suits are to be liberally and beneficially construed; and we see no reason why all matters arising from, and constituting part of, the same transaction, should not be litigated and determined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united; but the object of this rule is to prevent the confusion and embarrassment which would necessarily result from the union of diverse and incongruous matters, and it has no application to a case embracing a variety of circumstances, so connected as to constitute but one transaction. . . . Every action under our practice may be properly termed an action on the case; and it would seem that every ground of relief which can be regarded as a part of the case may with propriety be included in the action. ... The plaintiffs have brought their suit upon the whole case to recover damages, not only for the breach of the contract, but for the wrongs and injuries committed by the owners and agents of the defendants in that connection. The defendants are liable for all the damages resulting from these causes; and there