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upon the fraudulent practices of the officers; where a debtor who had executed a deed to A. in trust for his creditor B. alleged that the two had fraudulently sold the land which had been bought in by B., and sought to set aside the sale and to redeem; 2 an accounting against the executor of a father and the administrator of his son, where the estates were so mingled and confused that a separate accounting was impossible; an action against the executor of a lessee who had continued to occupy the premises, to recover the rent accruing before the death, as well as that accruing after; an action to recover damages for negligently driving against and injuring the plaintiff and his horse and carriage; 5 an action to recover damages for fraudulent representations in the sale of some sheep, the plaintiff claiming special damages for the destruction of his entire flock, caused by the communication of disease from those which he had purchased; an action for malicious prosecution, in which special acts of wrong and damage were alleged ; and, it has been said, an action to recover damages for several distinct and separate breaches of one contract. § 355. 461. Cases in Missouri. To the principle which I have thus stated, and the doctrine approved by such an overwhelming weight of judicial authority, there was opposed a series of decisions in Missouri, which, while they remained unquestioned, rendered the law of the State widely different in this respect from that which was established in other commonwealths. The Supreme Court held in numerous cases, and a great variety of circumstances, that where upon the facts the plaintiff would ultimately be entitled to different kinds of relief, such as, for example, the setting aside deeds of conveyance to the defendant, and the recovery of the possession of the land, — if, after alleging 1 Mitchell v. Bank of St. Paul, 7 Minn. the injury to them created two causes of 252, 255. action.

*

6 Wilcox v. McCoy, 21 Ohio St. 655, citing Packard v. Slack, 32 Vt. 9.

7 Schenck v. Butsch, 32 Ind. 338.

8 Fisk v. Tank, 12 Wis. 276, 298, per Dixon C. J. The acts and defaults complained of in this case can hardly be called distinct and separate breaches. See also Smiley v. Daweese (Ind. App. 1891), 27 N. E. Rep. 505. See Roehring v. Huebschmann, 34 Wis. 185; Kansas City Hotel Co. v. Sigement, 53 Mo. 176, that different items of an account or claim constitute but one cause of action.

all the facts, he should demand the separate reliefs, his complaint would contain different causes of action, and would be held bad on demurrer, or even judgment arrested after verdict, or reversed on appeal because of the error. In other words, the court completely identified the relief, and even the prayer for it, with the cause of action.1 The court has, however, recently receded from this most untenable position, and seems to have overruled this long series of decisions.2 The Missouri court seems to have finally brought the law of that State in reference to the subject-matter under consideration into harmony with the plain intent of the code and the well-settled doctrines of equity jurisprudence, as well as into a conformity with the rule settled by the unanimous consent of other courts.3

§ 356. *462. Summary. -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."

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In

§ 357. * 463. Most Frequent Applications of this Class. cludes Legal Controversies. 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

1 Curd v. Lackland, 43 Mo. 139; Wynn v. Cory, 43 Mo. 301; Gray v. Payne, 43 Mo. 203; Peyton v. Rose, 41 Mo. 257; Gott v. Powell, 41 Mo. 416; Moreau v. Detchemendy, 41 Mo. 431.

2 Henderson v. Dickey, 50 Mo. 161, 165, per Wagner J.; Duvall v. Tinsley,

54 Mo. 93.

8 [In State ex rel. v. Horton Land and Lumber Co. (1901), 161 Mo. 664, 61 S. W. 869, it is said: The character of the action is determined by the facts stated in the petition and not by the prayer for relief." See also Liese v. Meyer (1898), 143 Mo. 547, 45 S. W. 282.]

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.

§ 358. * 464. Controlling Words herein. Necessity of Judicial Definition of. A full interpretation of the language used in the

1 [Pollock v. Association (1896), 48 S. C. 65, 25 S. E. 977, citing the text. See also Dinges v. Riggs (1895), 43 Neb. 710, 62 N. W. 74, a suit where the " petition set up three causes of action: First, malicious prosecution; second, damage to plaintiff's business by arresting occupants of her place of business; third, slander." The court in sustaining the ruling of the District Court in overruling the motion of the defendant to compel plaintiff to elect upon which one of the three causes of action stated in her petition she would rely, said: "There was no error in this ruling of the court. The causes of action,

and each of them, sounded in tort, and they all grew out of and were connected with the same transaction, and were therefore properly joined. (Code of Civil Procedure, sec. 87; Freeman v. Webb, 21 Neb. 160.)" See Commercial Union Assurance Co. v. Shoemaker (1901), 63 Neb. 173, 88 N. W. 156, for case suggesting that "contract and tort" may not be united. See also Bank v. Grain Co. (1898), 60 Kan. 30, 55 Pac. 277, where this question was raised but not decided; and see further Willey v. Nichols (1898), 18 Wash. 528, 52 Pac. 237.]

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.

§ 359. 465. Language of Comstock J. and Author's Criticism. 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 transac

tions 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 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.

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