3 wrongfully paid as usury to such person by the debtor, to compel this assignee to account for actual securities placed in his hands by the debtor, and to set aside certain transfers of personal property made by the debtor;1 an action in which the plaintiff sought to recover the agreed price in a contract for building a house, damages caused by the defendant's delay to have the premises ready in time for the work to go on, and the price of extra work and materials, and finally to set aside, on the ground of fraud an award made in reference to certain of the matters in dispute;2 an action to recover damages for the conversion of goods by the defendant, a common carrier, and to recover back money mistakenly paid as freight for the same goods; where lands incumbered by an outstanding mortgage had been conveyed by a warranty deed, and the grantee therein brought an action against the grantor and the holder of the mortgage, and prayed a judgment fixing the amount due upon the mortgage, if any, and directing the same to be delivered up and cancelled upon payment by the plaintiff of the amount so ascertained, and ordering the grantor thereupon to repay that sum to the plaintiff; action against a constable and the sureties upon his official bond, alleging the issue of an execution to such officer and a levy by him upon property of the judgment debtor sufficient to have made the amount due, a neglect to return the execution, the receipt and collection of the money, and refusal or neglect to pay over the same to the plaintiff; 5 where the plaintiff alleged that he had placed $100 in the defendant's hands for the purpose of entering an eighty-acre lot in the plaintiff's name, at the expected price of $1.25 per acre; that the defendant thereupon entered the lot in his own name, but paid therefor only $10, and converted the residue of the money to his own use; and demanded judgment for the $90 and interest, and also for a conveyance of the land to himself; an action to recover a specified sum due upon a written contract, and damages for the breach of certain covenants in the same instrument, and also to compel the specific performance of 1 Palen v. Bushnell, 46 Barb. 24. It might, perhaps, have been better to say that there was but one cause of action. 2 See v. Partridge, 2 Duer, 463. 3 Adams v. Bissell, 28 Barb. 382, 385. 4 Wandle v. Turney, 5 Duer, 661. Although Bosworth J. says the causes of action all arose out of the same transac- 5 Moore v. Smith, 10 How. Pr. 361. a covenant to convey land contained therein; where one cause of action was for the defendant's deceit practised in the sale of oil leases to the plaintiff, and the other was for money had and received, being the price paid by the plaintiff in the same sales.2 The owner in fee of land having been induced by the defendant's fraud to convey the same by a deed in which the wife joined, the grantor and his wife brought a joint action to recover damages for the deceit. The New York Court of Appeals held that the husband had a cause of action for the loss of the land which he owned in fee; that the wife had a cause of action for the loss of her inchoate dower right; that they could recover one joint judgment as a satisfaction for both claims; and, finally, that the two causes of action were properly united, since they arose out of the same transaction, namely, the bargaining and sale of the premises and the fraudulent representations made therein by the defendant.3 Several of the cases cited in the last preceding subdivision of this section might perhaps be regarded as instances of causes of action arising out of the same transaction; they certainly would be so if they were to be considered as embracing more than one cause of action.4 § 477. The following are examples of causes of action contained in the same complaint or petition which have been held not to arise out of the same transaction: for an assault and battery and for a slander, although committed simultaneously; 5 for 1 Gray v. Dougherty, 25 Cal. 266. 2 Woodbury v. Delap, 1 N. Y. S. C. 20; s. c. 65 Barb. 501. The first count set out the sale and the deceit and the damages; the others, for money had and received, alleged that the money had been had and received by the defendant "as above stated." This, it was held, incorporated into the latter counts the averments of the former, and showed that all arose out of the same transaction. 3 Simar v. Canaday, 53 N. Y. 298, 305, per Folger J. The complaint was not framed at all upon the theory which the court adopted in making this decision. It did not purport to set forth two separate causes of action; it was a joint complaint, and alleged a joint cause of action in favor of the plaintiffs, and demanded a single joint judgment. The peculiar feature of the decision is that which sustains a single judgment for one sum as damages in satisfaction of both demands, although the case is expressly based upon the doctrine that there were separate and distinct causes of action. Assuming that the court was correct in this position, they plainly both arose out of the same transaction. 4 See supra, §§ 459, 460, and especially Bidwell v. Astor Ins. Co., 16 N. Y. 263; Phillips v. Gorham, 17 N. Y. 270; Laub v. Buckmiller, 17 N. Y. 620; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357; Lattin v. McCarty, 41 N. Y. 107; Howe v. Peckham, 10 Barb. 656; Blake v. Van Tilborg, 21 Wisc. 672; Fish v. Berkey, 10 Minn. 199. 5 Anderson v. Hill, 53 Barb. 238, 245; Dragoo v. Levi, 2 Duv. (Ky.) 520. But, per contra, see Harris v. Avery, 5 Kans. 146; Brewer v. Temple, 15 How. Pr. 286. a breach of a warranty of soundness given on the sale of a horse, and for fraudulent representations as to the soundness made at the same sale;1 a claim by the plaintiffs as next of kin and legatees of A., two of the defendants being A.'s executors, and a claim by them as legatees of B., one of the defendants being B.'s executor, the action being for an account and settlement of both estates.2 § 478. When the plaintiff unites two causes of action which can only be joined because they arise out of the same transaction, or out of transactions connected with the same subject of action, the facts showing such common origin or connection must be averred, so that the court may see whether the joinder is proper. A mere general allegation that the causes of action all arose out of the same transaction, is of no avail, and would be surplusage.3 V. Instances in which the proper Joinder of Causes of Action is connected with the proper Joinder of Defendants; Discussion of the provision that all the Causes of Action must affect all of the parties. § 479. Questions relating to the uniting of causes of action may be presented in two forms: In whatever one of the enumerated classes they fall they may (1) be against the single defendant, or the several defendants all equally liable, perhaps jointly liable, -in which case the inquiry has to do solely with the joinder of the causes of action themselves, and is not concerned with the joinder of the defendants; or (2) they may be against several defendants unequally and differently liable, one cause of action affecting a portion of the defendants more directly and 1 Sweet v. Ingerson, 12 How. Pr. 331. In accordance with the principles maintained in the text, the two causes of action in this case clearly arose out of the same transaction; indeed, a more illustrative example could hardly be found among purely legal actions. 2 Viall v. Mott, 37 Barb. 208. The Supreme Court of North Carolina, in a very recent case, seems to deny any operative force whatsoever to the first clause of the section under consideration, which, as it occurs in the code of that State, is identical with the one given in the text. Although the language used by the court is only a dictum, it is a strong expression of opinion that no causes of action can be united by reason of that particular provision unless they are embraced within some of the other classes mentioned by the section. See N. C. Land Co. . Beatty, 69 N. C. 329, 334. 3 Flynn v. Bailey, 50 Barb. 73. See Woodbury v. Delap, 1 N. Y. S. C. 20; 65 Barb. 501. substantially than it does others. In such case the inquiry has to do with the joinder of the defendants as well as with the union of the causes of action. I shall, in the present subdivision, examine the latter of these cases. It is required by all the codes as a prerequisite to the uniting of different causes of action, that, notwithstanding they may all belong to the same class, they must affect all the parties to the action. The only exception mentioned in any statute is the action to foreclose a mortgage.1 § 480. While the causes of action thus united must affect all of the parties, it is not necessary that they should affect them all equally or in the same manner.2 If equality and uniformity were required, a large part of the equity jurisdiction would be swept away at one blow; for it is the distinguishing feature of that system that all persons having any interest in the subject-matter of the controversy or in the relief granted should be made parties, however various and unequal their interests may be. Indeed, equality of right or of liability was not essential in all commonlaw actions. It was only when the proceeding was in form joint that this equality was indispensable according to legal conceptions. The provision of the codes has not changed any of these former doctrines; it simply enacts in one statutory and comprehensive form the principle which controlled the courts, both of law and equity, under the former practice. It leaves an equitable action to be governed by the same rules as to parties which controlled it when equity was a distinct department, and it extends the theory at least to legal actions as well. The practical effect of this clause in the statute will be best learned from an examination of the cases in which it has been applied, and from the judicial construction which has been thereby put upon it. Those which are quoted first in order pronounce against the propriety of the union made by the plaintiff, because the causes of action did not affect all the parties. § 481. The owner of a tract of land had made O. his agent for the purpose of selling it, and O. had sold the land to S., who also stood in a fiduciary relation to the owner, and S. had conveyed 1 This exception, in fact, confounds "relief" with "cause of action." It simply permits defendants to be joined against whom some special relief is demanded, and is therefore entirely unnecessary. In every such suit there is only one cause of action, unless a common-law action on the note or bond is combined with the foreclosure. 2 Vermeule v. Beck, 15 How. Pr. 333. portions of the land to different purchasers. The original owner thereupon brought an action against O. and S., charging fraud and a violation of their fiduciary duty against both. The complaint demanded a judgment of damages against O. for his deceit, and against S. an account and payment of all the proceeds and profits that he had or might have made from his own sales, and a reconveyance of the portion yet remaining unsold. The New York Court of Appeals held that the causes of action were improperly united; and, as its opinion is instructive, I quote from it at some length. "The plaintiff has elected to regard S. as his trustee, and the complaint as to him and the decree proceed on this basis. The plaintiff therefore elects to affirm the sale as to S. He cannot uno flatu affirm it as to him, and disaffirm it as to the defendant O. It is difficult to see how under the provision of § 167 of the code these causes of action may be united in the same complaint. Although it may be said that both causes of action arise out of the same transaction, namely, the sale of the plaintiff's land to the defendant S., yet the cause of action against O. is for an injury to the plaintiff's property, while that against S. is a claim against him as a trustee by operation of law. The causes of action joined in the complaint do not affect both of the parties defendant. O. is not affected by nor in any way responsible for S.'s acts as plaintiff's trustee, and the complaint does not profess to make him liable therefor. So S. is not sought to be made responsible for the fraudulent acts of O. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants which cannot be joined under the code."1 § 482. The same doctrine was asserted and ruling made in the following cases, the causes of action being held improperly united in each because they did not affect all of the parties: Where one cause of action was on a judgment against the defendant and two others, a second on a judgment against the defendant and one other, while a third was on a judgment against the defendant alone; 2 where the first cause of action was against a husband and wife for a slander by the wife, and the second against the husband for his own slander; an action against a husband and wife on a contract made by both in the wife's business, where a personal judgment was demanded against him, and a judgment 1 Gardner v. Ogden, 22 N. Y. 327, 340, per Davies J. 2 Barnes v. Smith, 16 Abb. Pr. 420. 3 3 Malone v. Stilwell, 15 Abb. Pr. 421. And see Dailey v. Houston, 58 Mo. 361, 366. |