plaintiffs' counsel, which he repudiates, was certainly simple and intelligible. That view regarded both causes of action as arising out of one and the same transaction, the transport of the grain, with all of its incidents. After rejecting it, the judge, in fact, returns to this theory at last, and rests his decision upon it. In his discussion, however, he reverses the order of the statute; he treats it as though it required the "subjects of action" to be connected with one "transaction," instead of prescribing that the "transactions" should be connected with the same "subject of action;" and, finding that this construction leads him into difficulties from which there is no escape, he finally pronounces the important clause of the section useless surplusage, to be entirely rejected. I need hardly say that courts have no authority to reject any portion of a statute, unless it be absolutely meaningless. This clause is certainly not thus without meaning. Causes of action may arise from the same transaction, and they may arise from transactions which are connected with the same subject of action, that is, which have a common point of connection with which they are all united, and which common point is the subject of the action. This, I say, is far from meaningless; on the contrary, it is a simple and plain expression, as far as the language is concerned, when that language is used in its ordinary and popular signification. The difficulty, and the only difficulty, springs from the question, whether the words are thus used in their proper sense, or whether they must receive a special and technical legal interpretation in order to arrive at the legislative intent, and to frame from them a definite rule which shall be applicable to all possible cases. It is an abuse of judicial power to reject an express provision of a statute on the sole ground of a difficulty in understanding and enforcing it.

§ 364. * 470. Same Subject. In an action by a judgment creditor against his debtor and an assignee of such debtor to set aside transfers, to recover property, and for other relief, it was said by the court: "What is the subject of the action in this case? It is the restitution of the property of the judgment debtor, whom the plaintiff represents. To entitle himself to this relief, the plaintiff avers in his complaint different transactions out of which his right to a restitution flows." There is here a plain confusion of ideas. The restitution of the debtor's property, which is the relief de

1 Palen v. Bushnell, 46 Barb. 24.

manded, is the object of the action. If there is anything connected with this matter clear, it is that the authors of the code. used the terms "subject of action" and "object of the action" to describe different and distinct facts.

§ 365. *471. Jones v. Steamship Cortes. The general theory of pleading and of actions embodied in the new system was stated with some fulness by the Supreme Court of California, in an action brought against a steamboat company by a passenger to recover damages. The plaintiff had purchased a ticket from San Francisco to San Juan, being led to believe, by public advertisements of the defendants, that the vessel landed at the latter place. She was carried on to Panama, the boat not stopping at San Juan, and was subjected to many personal discomforts and injuries, and also suffered consequential pecuniary losses and damage. The complaint was in the form of an action for deceit, rather than on the contract, and contained allegations of false and fraudulent representations. In respect to this complaint, the court pronounced the following opinion: "Our system of pleading is formed upon the model of the civil law, and one of its principal objects is to discourage protracted and vexatious litigation. It is the duty of the courts to assist as far as possible in the accomplishment of this object, and it should not be frittered away by the application of rules which have no legitimate connection with the system. The provisions for avoiding a multiplicity of suits are to be liberally and beneficially construed; and we see no reason why all matters arising from, and constituting part of, the same transaction, should not be litigated and determined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united; but the object of this rule is to prevent the confusien and embarrassment which would necessarily result from the union of diverse and incongruous matters, and it has no application to a case embracing a variety of circumstances, so connected as to constitute but one transaction. . . . Every action under our practice may be properly termed an action on the case; and it would seem that every ground of relief which can be regarded as a part of the case may with propriety be included in the action. . . . The plaintiffs have brought their suit upon the whole case to recover damages, not only for the breach of the contract, but for the wrongs and injuries committed by the owners and agents of the defendants in that connection. The

defendants are liable for all the damages resulting from these causes; and there is certainly no impropriety in adjusting the whole matter in one controversy." The section found in all the codes defining a "counter-claim" contains the expressions "transaction" and "connected with the subject of action," used in the same sense as in the passage now under consideration. In a few of the decisions which have been based upon that section, there is some approach towards a general interpretation of these phrases. The cases are collected in the succeeding chapter, in the section which treats of the counter-claim, and may be consulted for whatever light they throw upon the present discussion.

§ 366. * 472. Observations of the Author. Two Alternatives. It is plain that little real help can be obtained from the foregoing judicial explanations, and we must return to the very language of the statute itself. This language must be carefully studied, and the proper force and effect given to all its words. In order that different causes of action may be united, they must arise out of a transaction, or out of transactions. Nothing is said about their being connected with or arising out of the same "subject of action." There are two alternatives only: First, these different causes of action may arise out of the same transaction, — that is, out of one; or, secondly, they may arise out of different transactions; but in that case these transactions must be connected with the same subject of action." The words "arise out of" are important and emphatic. They indicate a sequence of cause and effect, so that the causes of action must result as consequences from, or be produced by, the transactions. It is plain that there must be a close connection between the transaction, as the origin, and the causes of action, as the products.

66

"Transaction" is de

§ 367. * 473. Meaning of "Transaction." fined by Worcester as "the act of transacting or conducting any business; negotiation; management; a proceeding." We must recur to the definition of cause of action already given. It includes the plaintiff's primary right which has been invaded, and the wrongful act or default- the delict of the defendant by which the right is broken. In order that causes of action may arise out of a transaction, there must therefore be a negotiation, or a proceeding, or a conduct of business, between the parties, of such a nature that it produces, as necessary results, two or more 1 Jones v. Steamship Cortes, 17 Cal. 487, 497, per Cope J.

different primary rights in favor of the plaintiff, and wrongs done by the defendant which are violations of such rights. The proceeding, or negotiation, or conduct of business, must, of course, be a unit, one affair, or else it would not be a single transaction; and yet it must be in its nature complex, for it must be the origin of two or more separate primary rights, and of the wrongs which violate them. In order that this may be so, the facts from which the different primary rights flow must be parts of, or steps in, the transaction; and, for the same reason, the wrongful acts or omissions of the defendant must be parts of the same transaction. If a single transaction that is, a single, continuous, and complex proceeding, or negotiation, between the parties analyzed and reduced into its series of acts and defaults, and some of these acts are the facts from which spring one primary right in favor of the plaintiff, and other acts are the facts from which spring a different primary right in his favor, and others still are the violations or breaches of these rights, these two causes of action do truly arise out of the same transaction.

is

$368.474. * 474. Same Subject. It is clear that every event affecting two persons is not necessarily a "transaction" within the meaning of the statute; indeed, the word as used in common speech has no such signification. "Transaction" implies mutuality, something done by both in concert, in which each takes some part. Much less can it be said that, because two events occur to the same persons at the same time, they are necessarily so connected as to become one transaction. The case cited above, in which a cause of action for an assault and battery and one for a slander were united, illustrates this statement. Two events happened simultaneously, the beating and the defamation, but neither was a "transaction" in any proper sense of the word. The wrong which formed a part of one cause of action was the beating; that which formed a part of the other was the malicious. speaking. The plaintiff's primary rights which previously existed were broken by two independent and different wrongs. The only common point between the causes of action was one of time; but this unity of time was certainly not a "transaction." 1 Much of

1 [See De Wolfe v. Abraham (1896), 151 N. Y. 186, 45 N. E. 455, in which "the plaintiff sued the defendants, merchants in the city of Brooklyn, for slander, alleging that at their place of business, and in

the presence and hearing of a large number of people, the defendants, through their lawful agents, charged plaintiff with theft, in that she had stolen from them a certain ring. The plaintiff's

the difficulty in construing this language has from a failure to apprehend the true nature of a from a forgetfulness that it includes two factors,