་ right and the wrong which invades it. A "cause of action cannot be said to "arise out of" an event, when the event produces or contains but one of these factors, the delict or wrongful act.1 Gutzman v. Clancy (1902), 114 Wis. 589, 90 N. W. 1081, holds that the word "transaction," in the statute, is broad enough to include an entire, continuous physical encounter; Gilbert v. Loberg (1894), 86 Wis. 661, 57 N. W. 982; Story & Isham C. Co. v. Story (1893), 100 Cal. 30, 34 Pac. 671, quoting the author. In Knapp v. Walker (1900), 73 Conn. 459, 47 Atl. 655, the court said: "The complaint before us, containing but one count, describes a cause of action for fraud. It alleges that the defendant by certain false and fraudulent representations, which are set forth, induced the plaintiff to part with his horse of the value of $100. It also describes a cause of action for breach of contract. It alleges that the defendant failed to perform his agree ment to deliver a certain gray mare in exchange for the horse which he had received from the plaintiff. The dealings between the plaintiff and defendant with reference to an exchange of horses was the transaction out of which both the alleged causes of action arose, and a statement of all the claimed facts of the entire transaction therefore involved a statement of both of said causes of action." In Craft Refrigerating Machine Co. . Quinnipiac Brewing Co. (1893), 63 Conn. 551, 29 Atl. 76, the court said: "As the word is employed in American codes of pleading and in our own Practice Act, a transaction is something which has taken place whereby a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered. The transaction between the parties to the present action began when they made the contract for the manufacture and sale of the two machines. Then followed the delivery of the machines, the refusal to accept them, the attempt of the plaintiff to retake them, the forcible prevention of their removal, and the subsequent continuance of their use in the defendant's business. Without taking each and all of these events into consideration, the legal relations of the parties could not be fully determined. From the delivery of the machines to the commencement of the action, they had remained continuously in the defendant's possession. It had simply dealt with them in a different way at different times. The Practice Act is to be favorably and liberally construed as a remedial statute.' . . . It has taken the word transaction, not out of any legal vocabulary of technical terms, but from the common speech of men. So far as we are aware it has never been the subject of any exact judicial definition. It is therefore to be construed as men commonly understand it, when applied, as in our Practice Act it certainly is applied, to any dealings between the parties, resulting in wrongs, without regard to whether the wrong be done by violence, neglect, or breach of contract. It seems to us hardly to be doubted that any ordinary man would consider everything stated in the complaint as properly belonging to a narrative of the whole transaction between the parties, and necessary for the information of one who was to form a judgment as to their respective rights. That a broader meaning should be given to the term 'transaction' than it has received in some of the courts of our sister States, is plain from the provision in the Practice Book, . . . that where several torts are committed simultaneously against the plaintiff (as a battery accompanied by slanderous words) they may be joined as causes of action arising out of the same transaction, notwithstanding they may belong to different classes of action.' This was the deliberate adoption of a view of the meaning of the word in question which had been previously disapproved in New York, as well as by Judge Bliss in his treatise on * 66 § 369. 475. Meaning of "Subject of Action." The same analysis applies also to the remaining portion of the clause, the sole difference being that the causes of action arise out of different transactions instead of one. The common tie between the causes of action in that case is, that the transactions themselves are connected with the same "subject of action." What is meant by this term? It cannot be synonymous with "cause of action." This appears from making the substitution, since the result would be, "causes of action may be united when they arise out of transactions connected with the same cause of action;" which is an absurdity, a mere statement in a circle. Subject of action ' must, therefore, be something different from "cause of action." It is also different from "object of the action." The object of the action is the thing sought to be attained by the action, the remedy demanded and finally awarded to the plaintiff. Causes of action cannot arise out of transactions connected with the "object of the action," because that object is something in the future, and could have had no being when the transactions took place out of which the causes of action arose. As the causes of action arise out of certain transactions, and as these transactions are connected with a "subject of action," it is plain that this subject must be in existence simultaneously with the transactions themselves, and prior to the time when the causes of action commence. This fact also shows that the "subject" must be something other than the cause of action. The phrase was not used in legal terminology prior to the code, but another one very similar to it was in constant use, and had acquired a well-defined meaning; namely, "subject-matter of the action." Thus the rule is familiar, that courts must have jurisdiction of "the subjectmatter of the action," as well as over the parties. Courts might have the power in a proper case to grant any kind of relief, legal or equitable, and to entertain any form of proceeding, and yet not have jurisdiction over some particular "subject-matter." The term "subject of action," found in the code in this and one or two other sections, was doubtless employed by its authors and the legislature as synonymous with, or rather in the place of, "subjectmatter of the action." I can conceive of no other interpretation Code Pleading (§ 125), though accepted in Kansas. Anderson v. Hill, 53 Barb. 238, 245; Harris v. Avery, 5 Kans. 146." See also McHard v. Williams (1896), 8 which will apply to the phrase and meet all the requirements of the context. Subject-matter of the action" is not the "cause of action," nor the "object of the action." It rather describes the physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted. It is possible, therefore, that several different "transactions" should have a connection with this "subject-matter," or, what seems to me to be the same thing, with this “subject of action." The whole passage is, at best, a difficult one to construe in such a manner that any explicit and definite rule can be extracted from it.1 I remark, in bringing this analysis of the language to a close, that the latter clause of the subdivision "or transactions connected with the same subject of action" can probably have no applica 1 [Meaning of the Term "Subject This is because the plaintiff alleged the of Action," In Box v. Chicago, R. I. & P. Ry. Co. (1899), 107 Ia. 660, 78 N. W. 964, the court quotes as follows from Rodgers v. Association, 17 S. C. 406: "What is a cause of action? We must keep in view the difference between the subject of the action and the cause of the action. The subject of the action was what was formerly understood as the subject-matter of the action." See Adkins v. Loucks (1900), 107 Wis. 587, 83 N. W. 934; Jordan v. Estate of Warner (1900), 107 Wis. 539, 83 N. W. 946; Foster v. Posson (1899), 105 Wis. 99, 81 N. W. 123. In Zinc Carbonate Co. v. First National Bank of Shullsburg (1899), 103 Wis. 125, 79 N. W. 229, the court said: "There is but one subject of action, the conspiracy to defraud and its consummation to the damage of plaintiff. All the allegations of fact are parts of the presentation of that one subject." Dinan v. Coneys (1894), 143 N. Y. 544, 38 N. E. 715: "The subject-matter of the plaintiff's action was the alleged right of possession of the land sought to be recovered. The subject-matter of the counter-claim was the right to recover against the plaintiff the amount of the legacy, and also.. the right to relief by sale of the land for its payment." Ponca Mill Co. v. Mikesell (1898), 55 Neb. 98, 75 N. W. 46: other ground of demurrer was that two causes of action are improperly joined. "An proceedings to set aside the conveyance to Jordan and the lien resulting to himself, and prayed a foreclosure. The Code of Civil Procedure provides (sec. 87) that the plaintiff may unite several causes of action relating to the same transaction or transactions connected with the same subject of action.' The vagueness of that language has caused the profession much difficulty; but the facts out of which the lien arose embrace a part of the fraudulent conduct justifying interposition through a receivership; they resulted in giving plaintiff a special interest aside from that of a stockholder, and it would certainly seem that the language quoted is broad enough to cover such a state of facts." McHard v. Williams (1896), S. D. 381, 66 N. W. 930. In Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co. (1893), 63 Conn. 551, 29 Atl. 76, it is said: "It follows that both the causes of action were properly united in the same complaint. The same result would also be reached if what we have viewed as one transaction could be regarded as consisting of several transactions, since such would all be connected with the same subject of action, that is, the two machines and the title to them;" Daniels v. Fowler (1897), 120 N. C. 14, 26 S. E. 635; Solomon v. Bates (1896), 118 N. C. 311, 24 S. E. 746: "There is the same subject of action' throughout, i. e. the plaintiff's loss of his deposit."] tion to legal causes of action, and can only be resorted to in practice as describing some equitable suits which involve extremely complicated matters. In fact, Mr. Justice Comstock's position is doubtless correct, that the entire subdivision finds its primary and by far most important application to equitable rather than to legal proceedings.1 § 370. *476. Examples of Causes of Action Held to have arisen out of the same Transaction. Although the courts have generally refrained from any discussion of this clause, they have had frequent occasion to invoke its aid; and the following cases will furnish some examples of judicial decisions based upon it. The causes of action united in the same complaint or petition were held to have arisen out of the same transaction, where one was for the recovery of the possession of land, and the other was for the value of its occupation by the defendant; for an accounting and payment of the balance found due, and for the surrender up of securities; for injuries to the person and for those to the 4 1 In support of the interpretation of the phrase "subject of the action," suggested by the text, namely, that it "describes the physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted," see Holmes v. Abbott, 53 Hun, 617, 6 N. Y. Suppl. 943. A cause of action entitling to injunction and damages for continuous interference with rights of property by the maintenance and operation of a steam railroad in a highway may be united with a claim for damages for personal injuries suffered by the plaintiff while driving along the highway in consequence of his horses being frightened by the noise of a passing engine and train; since both claims are "connected with the same subject of action," which in this case is the unlawful obstruction of the highway by the defendant: Lamming v. Galusha, 135 N. Y. 239. 2 [Bush v. Froelick (1896), 8 S. D. 353, 66 N. W. 939. "Under Comp. Laws, sec. 4932, authorizing the joinder of causes of action arising out of the same transaction, or transactions connected with the same subject of action,' the holder of a note secured by a trust deed may in one action seek to foreclose the trust deed, to set aside a prior foreclosure made by the trustee without plaintiff's knowledge or consent, to enjoin the county treasurer from issuing to the trustee a tax deed for the mortgaged premises, and to adjust the equities of the various parties." Dinges v. Riggs (1895), 43 Neb. 710, 62 N. W. 74; for malicious prosecution, for damage to plaintiff's business by arresting occupants of her place of business, and for slander. Maldaner v. Beurhaus (1900), 108 Wis. 25, 84 N. W. 25; Alliance Elevator Co. v. Wells (1896), 93 Wis. 5, 66 N. W. 796: one count alleged the withholding of premises wrongfully after expiration of lease therefor; the other count, that certain personal property, that by the terms of the lease defendant was entitled to the use of, had been converted. Held, upon demurrer for improper joinder of causes, that both causes arose out of the same transaction or transactions connected with the same subject of action. Porter v. International Bridge Co. (1900), 163 N. Y. 79, 57 N. E. 174; Scott v. Flowers (1900), 60 Neb. 675, 84 N. W. 81, a cause of action for false imprisonment joined with a count for malicious prosecution.] 3 Armstrong v. Hinds, Minn. 254. See Larned v. Hudson, 57 N. Y. 151; also post, § 494, and note. 351. * 4 Montgomery v. McEwen, 7 Minn. 4 3 property of a passenger, committed by the wrongful acts and frauds of a steamboat company on the same voyage; where the owner of stereotype plates of a book alleged a breach of defendant's contract to furnish paper and print a book therefrom, and also injuries negligently done to the plates themselves while in the defendant's possession; 2 detaining the plaintiff's chattels, and wrongfully and negligently injuring them while thus detained; an action by a judgment creditor against his debtor and another to recover back money 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; 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; 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; 7 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, 6 1 Jones v. Steamboat Cortes, 17 Cal. 487, 497. See, however, Grant v. McCarty, 38 Iowa, 468. Injury to the person and injury to the property of the plaintiff by one negligent act of the defendant: Rosenberg v. Staten Island Ry. Co. (Com. Pl. 1891), 14 N. Y. Suppl. 476. But see Taylor v. Metropolitan El. Ry. Co., 52 N. Y. Super. Ct. 299. 2 Badger v. Benedict, 4 Abb. Pr. 176. 3 Smith v. Orser, 43 Barb. 187. 4 Palen v. Bushnell, 46 Barb. 24. It might, perhaps, have been better to say that there was but one cause of action. 5 Lee v. Partridge, 2 Duer, 463. Adams v. Bissell, 28 Barb. 382, 385. Wandle v. Turney, 5 Duer, 661. Although Bosworth J. says the causes of action all arose out of the same transaction, yet, upon the principles already stated in the text, there was actually but one cause of action. |