the courts of California.20 The Indiana Code expressly provides that a contract may be reformed and enforced by one action.21 The judges of the Supreme Court of Wisconsin, when relief of a legal and of an equitable nature is given in one action, usually speak of the ac

defendant was ascertained, there was but one cause of action. Jewitt and Welles dissenting, and holding it to be a union of two causes of action without stating them separately. In the Supreme Court the same view is taken. Thus, an action for cutting off the plaintiff's access to the river by a railroad running across a bay, and between his landing and the main stream, was for a single grievance, and he was allowed a judgment for damages and an order upon the defendant to construct a bridge and passway as required by statute. Getty v. Hudson River R. Co., 6 How. Pr. 269. It was also held, in Spier v. Robinson, 9 How. Pr. 325, that a specific performance of a real contract, and for the rents and profits of the land while in the vendor's possession after sale, constituted but one cause of action, the judge (Cady) remarking that "it was a specification of what he [the defendant] ought to do to make full compensation for the wrong done him." See, also, LATTIN v. MCCARTY, 41 N. Y. 107, where a complaint seeking to set aside a fraudulent deed, and to obtain possession, was held to contain but one cause of action; [Guernsey v. American Ins. Co., 17 Minn. 104 (Gil. 83), action to reform a policy of insurance, and to recover the amount due on it as reformed; Walkup v. Zehring, 13 Iowa, 306, action to correct a series of title deeds, to set aside another deed of the same land, and to quiet plaintiff's title; Reedy v. Smith, 42 Cal. 245; Johnson v. Golder, 132 N. Y. 116, 30 N. E. 376; Louvall v. Gridley, 70 Cal. 507, 11 Pac. 777. Contra, Harrison v. Juneau Bank, 17 Wis. 340.]

20 In WALKER v. SEDGWICK, 8 Cal. 398, the court treats an action brought for a personal judgment founded upon a promissory note given for the purchasemoney of land, and another action to enforce the lien, as both being for the same cause of action, although a judgment without satisfaction in the first suit is no bar to the second. But inasmuch as under the Code the plaintiff might, in one action, have obtained his full relief, he should be required to pay the costs of a second suit. After referring to the old necessity of going into a court of law to obtain a personal judgment, and to a court of equity to enforce the lien, the following language is used: "But under our system of practice, when law and equity are both administered by the same tribunal, and may be in the same suit, the reason for the former rule does not exist, and the rule itself should cease. Why should the purchaser be harassed with the costs of two separate suits to obtain the end that as well might be reached by one? The whole spirit of our system and its leading intent is to avoid a

21 MONROE v. SKELTON, 36 Ind. 302. [A mortgage may be reformed and foreclosed in the same suit. Miller v. Kolb, 47 Ind. 220; Smith v. Kyler, 74 Ind. 575; Conger v. Parker, 29 Ind. 380; Rev. St. Ind. § 279.]

tion as embracing more than one cause; and so do those of Minnesota.22 The position taken in Missouri is somewhat ambiguous, but the legal and equitable relief seems to have been treated as showing two causes of action.23

multiplicity of suits. This is the best feature of the system. All the party has to do is to make a concise and true statement of the facts that constitute his cause of action and defense, and then the court will give him such relief as by the rules of law or equity he may be entitled to receive. In this case the plaintiff should have stated all the facts in the suit upon the notes, and the court could have given him such a decree as he was entitled to have." 1 have given so much of the language of the court in this case because it shows, for the time when it was used (1857), an unusual appreciation of the spirit and object of the code, better than in some of the other early cases. In California there is no express permission to unite causes of action of a legal and equitable nature, and it is nowhere intimated that to seek relief by a personal judgment, and by an order charging land upon which the demand may be a lien, shows two causes of action. See Gray v. Dougherty, 25 Cal. 266; Murphy v. Rooney, 45 Cal. 78.

22 In SAUER v. STEINBAUER, 14 Wis. 70, in an action to foreclose a mortgage, a judgment was sustained which had been rendered against the mortgager for an unsatisfied balance that may remain after the sale, and upon the ground that the statute authorized the union in one complaint of more than one cause of action. There was but one count, nothing was said in regard to the necessity of separate statements. In Stillwell v. Kellogg, Id. 461, in affirming a similar judgment, the court does not speak of it as a joinder of two causes of action, but as a customary judgment in an action for foreclosure; treats the whole case as equitable, and denies the right to a jury trial. But in Faesi v. Goetz, 15 Wis. 231, the same judge (Paine) treats a similar complaint as containing two causes of action. Also, an action seeking a personal judgment and to enforce a vendor's lien was afterwards said to contain two causes of action properly united. Stephens v. Magor, 25 Wis. 533. In Harrison v. Juneau Bank, 17 Wis. 340, the court distinctly speaks of a complaint seeking to reform a contract and to enforce it, as reformed, as embracing two causes of action, which should have been separately stated. In none of these Wisconsin cases was an attempt made to define a cause of action, nor does the distinction seem to have been presented by counsel, or considered by the court,

23 The Supreme Court of Missouri, from Peyton v. Rose, 41 Mo. 257, to Henderson v. Dickey, 50 Mo. 161, held that if a party sought legal relief in an equitable action, he combined two causes of action, and that in order to obtain such relief he should seek it by another action, or by another count in the equitable action. This position is more fully discussed hereafter. Post, § 170, 171.

§ 117. The Causes of Action must be between the same Parties in the same Right.

The pleader will not be likely to overlook the express requirement that, in the joinder of causes of action, they must affect all the parties to the action. But not only must the same parties be affected, but they must be affected in the same right. Thus, one cannot be sued upon his personal liability, and in the same action upon his liability as executor or administrator;24 nor can one sue, though by different statements, as executor or administrator, and in his personal capacity.25 In requiring that each cause of action should affect all the parties, it is not meant that they are all to be affected equally; oth

between actions seeking more than one kind of relief, and a union of different causes of action. To show the narrow view which continued to be taken by a court of excellent character and reputation, see Supervisors of Kewaunee Co. v. Decker, 30 Wis. 624; Horn v. Ludington, 32 Wis. 73. The Supreme Court of Minnesota, in Guernsey v. American Ins. Co., 17 Minn. 104 (Gil. 83), treats an action for the reform of an insurance policy and for a judgment, as reformed, as containing two causes of action, the first of which should be passed upon by the court before the other issues could be submitted to a jury.

24 FERRIN v. MYRICK, 41 N. Y. 315. The court in this case treats the following principles as settled: (1) that for all causes of action arising upon a contract made by a testator in his life-time, an action can be sustained against the executor as such, and the judgment would be de bonis testatoris; (2) that in all causes of action, where the same arises upon contract made after the death of the testator, the claim is against the executor personally, not against the estate, and the judgment must be de bonis propriis; (3) that these different causes of action cannot be united in the same complaint." The second proposition is affirmed in Austin v. Munro, 47 N. Y. 360. [Cincinnati, H. & D. Ry.

Co. v. Chester, 57 Ind. 299.]

[The case of Tradesmen's Nat. Bank v. McFeely, 61 Barb. 522, would seem on first reading to be in conflict with the rule here laid down in the text, and the one supported by Ferrin v. Myrick, supra; but there was no attempt to hold the defendant here liable in his two capacities. The rule here given, which is: "A count on a promise made by an executor or administrator as such, and in which he is not charged as personally liable, may be joined with a count on a promise made by the intestate or testator,"-is well settled at common law. Segar v. Atkinson, 1 H. Bl. 102; 1 Chit. Pl. 205b; 2 Chit. Pl. 61.]

25 LUCAS v. NEW YORK CENT. R. CO., 21 Barb. 245.

erwise, but few causes for the enforcement of equitable demands could be united. If one cause of action be joint (that is, be a wrong done to the plaintiffs in respect to their joint rights), causes of action that are several (that is, wrongs in respect to the individual rights of each of the plaintiffs) cannot be united with it.""

§ 118. As to splitting a Cause of Action.

It is a rule that a cause of action-as, one springing from a single contract—cannot be so split as to authorize more than one action; and the same rule would make it improper to so divide a single cause of action, by separate statements in one complaint, as to show more than one cause of action.

It is sometimes difficult to decide whether a given matter-as, a running account for the sale of different articles of property, or distinct breaches of a written agreement-constitutes but one cause of action, or more than one; and the courts have not always been in accord upon this subject. Logically, every wrong furnishes itself a cause of action, but different wrongs may be so blended as to be called a single wrong, as to furnish but a single cause of action, especially with reference to the policy of the law, which discourages a multiplicity of suits. A distinguished common-law judge in New York says: "All damages arising from a single wrong, though at different times, make but one cause of action; and all debts and demands already due by the same contract make one entire cause of action." " This language was quoted in the New York Court

27

26 GRANT v. MCCARTY, 38 Iowà, 468; [Hinkle v. Davenport, 38 Iowa, 355; Faivre v. Gillman, 84 Iowa, 573, 51 N. W. 46; Dailey v. Houston, 58 Mo. 361; Greene v. Nunnemacher, 36 Wis. 50.]

27 Cowen, J., in BENDERNAGLE v. COCKS, 19 Wend. 207. [In this case, Cocks sued Bendernagle for breaches of certain covenants on the part of the defendant. The defendant had covenanted to pay the one-third of the manure which should be brought by Cocks upon the demised premises during the term, and also to pay him $25 for plowing and working a certain lot on the premises during the first year of the term. Actions were brought for breaches of the separate covenants. In rendering the decision, Cowen, J., says: "Where there were breaches of several and distinct covenants contained in the same instrument, and a suit was brought claiming damages for some of the breaches, and subsequently a second action was commenced

of Appeals by Strong, J., who further remarks: "Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. 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; in respect to contracts, express or implied, each contract affords one, and only one, cause of action. The case of a contract containing several stipulations, to be performed at different times, is no exception; although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others, the ground of action is the stipulation, which is in the nature of a several contract. Where there is an account for goods sold, or labor performed; where money has been lent to, or paid for, the use of a party at different times, or several items of claims spring in any way from contract, whether one only or separate rights of action exist, will, in each case, depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract-as, on an agreement to sell and deliver goods, or perform work, or advance money; and usually, in case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both the parties. But there must be either an express contract or the circumstances must be such as to raise an implied contract embracing all the items, to make them, where they arose at different times, a single or entire demand or cause of action." 28

claiming damages for other breaches, all of the causes of action having accrued at the time of the bringing of the first suit, that the first action might be pleaded in abatement of the second." This rule seems to extend to several actions against the same person for the same wrong, but not to several and distinct trespasses or wrongs. Willard v. Sperry, 16 Johns. 121; Stark v. Starr, 94 U. S. 477.]

28 SECOR v. STURGIS, 16 N. Y. 548. In this case the business of the plaintiff consisted of two branches, which were designed to be, and were, kept entirely distinct from each other. In an action upon an account accruing in respect to one branch of his business, it was held that the two branches were so distinct that separate actions would lie upon the accounts of each. Nor