it consists in seizing goods, when the property itself may be reclaimed; while for injuries without force, trespass on the case is the appropriate remedy.83 Similar causes of action arising ex delicto may, at common law, be united in one action, but, as in contracts, they must be such as can be prosecuted by the same form of action; thus, counts in trespass cannot be united with counts in case. 84 The phrase "with or without force" is intended to change this rule, and the restriction to injuries to person and property excludes those affecting character. The term "injuries to property" comprehends such injuries as one sustains in his rights of property, whether directly affecting or depriving one of the possession and enjoyment of things the subject of property or not.85 Thus, fraud 88 Those not familiar with the common-law system are liable to be confused by observing that trespass on the case lies for injuries, while trespass on the case upon promises, or assumpsit, is the form of action most frequently resorted to in enforcing contracts. Although case for injuries and assumpsit upon contracts are both actions of trespass on the case, they are radically different in their character. Debt was the old remedy upon simple contracts, but, to avoid some inconveniences in the practice, and especially the defendant's right to wage his law, a new remedy was devised, in form ex delicto, and, instead of alleging indebtedness, the defendant was charged with a wrong and injury in breaking his promise, from which arose consequential damages, precisely as a plaintiff might be injured by negligence, or some other wrong not committed with force. The modern action of assumpsit thus came into vogue with all its generalities and loose rules of pleading; and that of debt came to be but little resorted to, except in actions upon bonds or penal statutes. When, however, common-law pleaders speak of the action of case, or trespass on the case, they do not include assumpsit, although in form it belongs to that class, but refer to actions where the wrong is an actual injury committed without force. 841 Chit. Pl. (Ed. 1867) 200, 201. There is one exception. The action for seducing the plaintiff's daughter, per quod, etc., is laid vi et armis, like trespass, and a count for this injury can be joined with a count in trespass. 85 CLEVELAND v. BARROWS, 59 Barb. 364. [In this case the court said: "Fraud is a wrong, and, if a party thereby obtains from another property, it is an injury to the property of such other, in the same sense precisely as though the wrongdoer had taken the property tortiously and converted it. The law affords the injured party the same remedy in either case. Fraud belongs to the class of injuries denominated 'injuries to property.'" [An action for a trespass to real property may be joined with one for 87 86 and deceit, which affect one's estate-as, by inducing him to pay more than an article is worth-is an injury to property, and a statement setting out such fraud can be united in the same action with another counting upon an injury in seizing and taking away chattels. So, then, in this class is included every form of action for an injury-as distinguished from a wrong by breach of contract -excepting libel, slander, and malicious prosecution, which are embraced in class fourth, and excepting the dispossession of real or personal property, where one seeks to recover the possession, which are embraced in the fifth and sixth classes. That is, class third includes causes of action for assault and battery, for false imprisonment, for trespass upon land, for an injury to personal property, for conversion of such property where the relief is in damages, for nuisances, for all kinds of negligence in the performance of a duty either by the defendant or his servants, for criminal conversation, for enticing a child or servant, or enticing or harboring a wife, for seduction of a servant or daughter, for fraud and deceit in sales, in false recommendations, etc. 130. The Joinder when the Tort may be waived. I speak not in this connection of causes of action that spring from, or are connected with, the same transaction, but where they are wholly disconnected. We have seen that all causes of action arising from contract can be united in one complaint, and so can all which arise from injuries to person or property, except those affecting character, or where the specific property is sought to be recovered; but unless they belong to the "first class," causes arising from contract cannot be united with those that spring from a tort. assault, Craig v. Cook, 28 Minn. 232, 9 N. W. 712; also, an action for waste and deceit in the sale of personal property, Gilbert v. Loberg, 83 Wis. 189, 53 N. W. 500; Clark v. Hannibal & St. J. Ry. Co., 36 Mo. 214; More v. Massini, 32 Cal. 590; Cincinnati, S. & C. R. Co. v. Cook, 37 Ohio St. 265. Separate and distinct injuries to property may be joined. Brickner WoolenMills Co. v. Henry, 73 Wis. 229, 40 N. W. 809; Strohlburg v. Jones, 78 Cal. 381, 20 Pac. 705.] 86 Cleveland v. Barrows, 59 Barb. 364; 1 Hil. Torts (4th Ed.) c. 17, § 1; 2 Hil. Torts, c. 26, § 1. 87 Cleveland v. Barrows, 59 Barb. 364. Yet this is not always true, for there are some injuries where the injured party is permitted to waive the tort and sue as upon contract, and if he thus elect, he should be permitted to unite the causes of action thus arising, with others founded upon an actual contract.88 § 131. Fourth Class: Injuries to Character. Actions arising from injuries to character are usually brought for libel or slander, although malicious prosecutions, while they affect property in the expense they cause, are chiefly injurious to the character of those who suffer, and are hence, held to be embraced in this class.89 Distinct libels in the same newspaper published at different times, are each distinct causes of action and should be separately stated.00 So as to words spoken at different times, although repetitions of the same words and, if alleged with a continuando, the words "at divers other times," etc., will be stricken out.91 But different sets of words spoken at the same time, although charging distinct offenses, constitute but one cause of action." 92 A more natural classification would separate actions for injuries 88 See, ante, § 13, and post, §§ 152-154. 89 MARTIN v. MATTISON, 8 Abb. Pr. 3. [The complaint in this case contained statements of four causes of action,-one for malicious prosecution; one for libel; and two for slanderous words spoken. The defendant demurred to the complaint, upon the ground of a misjoinder of several causes of action for injuries to character. The demurrer was overruled, and the complaint sustained. See, as to what constitutes injuries to character or reputation, 3 Bl. Comm. 123.] See, also, Hull v. Vreeland, 42 Barb. 543, 18 Abb. Pr. 182; Shore v. Smith, 15 Ohio St. 173; Noonan v. Orton, 32 Wis. 106; [Hargan v. Purdy (Ky.) 20 S. W. 432.] 90 Fleischmann v. Bennett, 87 N. Y. 231. 91 Swinney v. Nave, 22 Ind. 178. But if the defendant goes to trial without objecting to the duplicity, it is not error. Alpin v. Morton, 21 Ohio St. 536. 92 Cracroft v. Cochran, 16 Iowa, 301. Cole, J., applies to slanderous words the language of Strong, J., in Secor v. Sturgis, 16 N. Y., on page 558, that: "In case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of the wrong or damage may be." to person from those affecting property, and unite all affecting the person only-as, assault and battery, slander, etc. This union would be natural for the reason that, by the law of England, as adopted in most of the states, there is a marked distinction between injuries affecting the person only and those affecting the estate or property of the person injured, in this: that actions based upon the former abate by the death of either party, and the right of action is not assignable; while actions on account of injuries to property survive in favor of or against the proper representativės of a deceased party, and the right of action may be assigned." The Code of Indiana alone follows this classification, making of the second class "injuries to property," and one of the third, "injuries to person or character; " ** while the codes of California,95 of Oregon,96 and of Nevada," preserving in a distinct class injuries to character, separate injuries to person from injuries to property. 132. Fifth Class: Ejectment. The fifth class embraces "claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same." They are enforced at common law chiefly by the action of ejectment, and by trespass for mesne profits. The object of the clause is not so much to authorize the recovery of damages in real actions as the union in one proceeding of causes of action for the recovery of distinct parcels of land. In prosecuting this action, whether the wrong is a single one, furnishing but one cause of action, or whether there has been a dispossession of different parcels, at different times, having no connection with each other, thus making a separate cause of action in regard to each parcel, it is not disputed that, as to each cause of action, the plaintiff may claim pos session, with the damage and rents spoken of, or may claim possession alone and prosecute the money demand by an independent action." 93 Ante, §§ 39-43. 94 Section 70 (Rev. St. 1881, § 278). 95 Code Civ. Proc. 1876 and 1885, § 427. 96 Code Civ. Proc. § 91. 97 Comp. Laws 1873, § 1127. 98 BOLES v. COHEN, 15 Cal. 150. 98 99 VANDEVOORT v. GOULD, 36 N. Y. 639; Walker v. Mitchell, 18 B. Mon. If the complaint claims possession only, failing to set out the facts which show the money demand or its amount, it is held to be error to admit evidence in regard to the damages, or to render a judg ment for them.100 The statute authorizes the plaintiff to elect whether to seek possession alone or possession with damages, and the omission to describe and ask for the latter indicates the election. Whether one or both be sought, there is but one cause of action, one wrong—the dispossession; the success of the claim for damages and rents depends upon the success of the claim for possession,101 and it is but a claim for additional relief. Though there is but one cause of action yet the permission given by the words "with or without," etc., relieves a pleader, who seeks possession only and by another action seeks for damages, etc., from the consequences of splitting a cause of action; thus is followed the common-law practice in ejectment. The permission to unite applies to actions to recover the property itself, hence a claim to recover possession of one parcel of land cannot be united with a claim for the rents and profits only of another parcel.102 In prosecuting this action, equitable relief in respect to the land in suit, is sometimes and properly sought, more often to prevent injuries in the nature of waste. This is not, however, a joinder under this clause of the statute, but is either the ancillary relief which the court will sometimes give, or if the injury or other matter complained of be a separate cause of action, it is one connected with the subject of the action, that is, with the land.103 541; Burr v. Woodrow, 1 Bush, 602; Sullivan v. Davis, 4 Cal. 291; Armstrong v. Hinds, 8 Minn. 254 (Gil. 221). 100 LARNED v. HUDSON, 57 N. Y. 151, approving Livingston v. Tanner, 12 Barb. 481. The causes of action are said to be distinct, and each must be sustained by proper averments. But, in fact, there is but one cause of action; [Armstrong v. Hinds, 8 Minn. 254 (Gil. 221).] 101 "They are one cause of action." Sullivan v. Davis, 4 Cal. 291. See, also, Lord v. Dearing, 24 Minn. 110. 102 Holmes v. Williams, 16 Minn. 164 (Gil. 146). 103 In NATOMA WATER & MIN. CO. v. CLARKIN, 14 Cal. 544 [this was an action to recover certain lands in an action of ejectment, and also an injunction to restrain the commission of trespass in the nature of waste, pending the action. Complaint held good], Field, J., recommends, when an injunction is sought pending the action of ejectment, that the complaint should |