§ 360. * 466. Observations Made by Courts Respecting Meaning of these Terms. I shall first collect some general observations which have been made by the courts upon the legal import of these terms, and shall, with whatever aid is derived from the judicial interpretation, attempt an independent analysis. “A complaint united a cause of action for an assault and battery with one for slander, alleging that the defamatory words were uttered while the beating was in actual progress. To a demurrer for a misjoinder, it was answered that both causes of action arose out of the same transaction. The court disposed of this position in the following manner: "It by no means follows that, because the two causes of action originated or happened at the same time, each cause arose out of the same transaction. It is certainly neither physically nor morally impossible that there should be two transactions occurring simultaneously, each differing from the other in essential attitudes and qualities. As here, the transaction out of which the cause of action for the assault springs is the beating, the physical force used; while the transaction out of which the cause of action for the slander springs is not the beating or the force used, but the defamatory words uttered. The maker of a promissory note might, at the very instant of its delivery and inception, falsely call the payee a thief; and yet who would say that the two causes of action arose out of the same transaction? It has been held that a contract of warranty and a fraud practised in the sale of a horse at the same trade did not arise out of the same transaction, so as to be connected each with the same subject of action, and that a complaint containing both causes of action was demurrable.1 Assault and battery and slander are as separate and distinct causes of action as any two actions whatever that can be named. The subjects of the two actions are not connected with each other. Each subject is as distinct and different from the other as the character of an individual is from his bodily structure. [The question is not whether both causes of action sprang into existence at the same moment of time. Time has very little to do with solving the real question. The question is, Did each cause of action accrue or arise out of the same transaction, the same thing done? It is apparent that each cause of action arose, and indeed must necessarily have arisen, out of the doing of quite different things by the defendant, — different in 1 Sweet v. Ingerson, 12 How. Pr. 331. their nature, in all their qualities and characteristics, and inflicting injuries altogether different and dissimilar. The same evidence would not sustain each cause of action, and they may require different answers." 1 It has been held, however, that the two causes of action under exactly the same circumstances do arise out of the same transaction, and may be united in the same complaint.2 § 361. * 467. Author's Criticism. A complaint contained one cause of action for the breach of a warranty given on the sale of a horse, and a second cause of action for fraudulent representa 1 Anderson v. Hill, 53 Barb. 238, 245, per T. A. Johnson J.; and see Dragoo v. Levi, 2 Duv. 520, which reaches the same conclusion. It should be noticed that Judge Johnson offers no affirmative definition of "transaction," except in making "the same transaction equivalent to "the same thing done." See also Wiles v. Suydam, 64 N. Y. 173, per Church C.J.: Held, that the two causes of action cannot be joined; one is on contract, and the other is for a penalty given by statute; they do not "arise out of the same transaction," nor are they "connected with the same subject of action." Hay v. Hay, 13 Hun, 315; French v. Salter, 17 id. 546; Douglas Cy. Sup., 38 Wis. 179; Ogdens burgh & L. C. R. Co. v. Vt. & Can. R. Co., 63 N. Y. 176 (meaning of "subject-matter of the action "). 2 Brewer v. Temple, 15 How. Pr. 286; Harris v. Avery, 5 Kans. 146. The first of these was a special term decision, and is expressly overruled in Anderson v. Hill. I quote from the opinion in the other as an example of the argument on the other side of the question. The defendant had wrongfully arrested the plaintiff, and at the same time called him a thief. The court say: "We think that these facts constitute only one transaction. . . . Our code has abolished all common-law forms of action, and has established a system for the joinder of actions more philosophical and complete in itself. It follows the rules of equity more closely than it does those of the common law, one object seeming to be to avoid the multiplicity of actions, and to settle in one suit as equity did, as far as practicable, the whole subject-matter of a controversy. It is probably true that the two causes of action for assault and battery and for slander cannot, under our code, be united, unless both arise out of the same transaction; but we do not know any reason why they should not be united when both do arise out of the same transaction." The court here simply assumes that both causes of action did arise out of the same transaction, but does not venture upon any reasons for that opinion. The decision is a mere begging of the question. [Benton v Collins (1896), 118 N. C. 196, 24 S. E. 122. In this case a cause of action for assault and battery and an equitable cause of action to set aside a deed alleged to have been fraudulently executed to defeat plaintiff in the collection of his claim for damages for the assault, were held to be properly joined in the same complaint. See also Ferst's Sons v. Powers (1900), 58 S. C. 398, 36 S. E. 744. in which it is held that a legal cause of action for goods sold and delivered may be joined with an equitable cause of action to set aside a sale of a stock of goods as a fraud upon creditors. See also Endress v. Shove (1901), 110 Wis. 133, 85 N. W. 653, to the effect that "a cause of action to enforce a mortgage, and one to recover on the personal liability of the mortgagor, grow out of the same transaction and are connected with the same subject thereof, hence may be joined under the statute on that subject regardless of the statutory provision for deficiency judgments in foreclosure cases, provided no one other than the debtor is made a defendant and the two causes of action are separately stated."] tions respecting the quality and condition of the horse made at the same sale, the plaintiff claiming that both causes of action arose out of the same transaction. The court said: "It is somewhat difficult to determine 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 complaint 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 1 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 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? the citation affords no help in solving the difficulty, if indeed it has any meaning whatever. § 362. *468. Same Subject. In a case where the defendants common carriers - had carried a quantity of wheat of the plaintiffs 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 plaintiffs 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 plaintiffs 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 6 § 363. * 469. Same Subject. 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 observations 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 66 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 plaintiffs, 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 self-evident 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 1 Adams v. Bissell, 28 Barb. 382, 385, per Sutherland J. |