the receipt and collection of the money, and refusal or neglect to pay over the same to the plaintiff,1 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; 2 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 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.1 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. Several of the cases cited in the last preceding sub

1 Moore v. Smith, 10 How. Pr. 361. 2 Callaghan v. McMahan, 33 Mo. 111. 3 Gray v. Dougherty, 25 Cal. 266. 4 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. See also Gertler v. Linscott, 26 Minn. 82 (if a cause of action on contract and one for a tort arise out of the same transaction, or out of a series of connected transactions,

they may be joined); Barr v. Shaw, 10 Hun, 580 (causes of action for different torts may arise out of the same transaction, and be joined); Young v. Young, 81 N. C. 91.

5 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 sepa rate 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,

division 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.1

*

§ 371. 477. Examples of Causes of Action Held not to have arisen out of the same Transaction. 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;2 for 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; 3 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.4

§ 372. * 478. What Facts must be averred herein. 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.5

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.

1 See supra, §§*459, *460, and especially Bidwell v. Astor Mut. 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 Wis. 672; Fish v. Berkey, 10 Minn. 199.

2 Anderson v. Hill, 53 Barb. 238, 245; Dragoo v. Levi, 2 Duv. 520. But, per contra, see Harris v. Avery, 5 Kan. 146; Brewer v. Temple, 15 How. Pr. 286.

3 Sweet v. Ingerson, 12 How. Pr. 331. In accordance with the principles maintained in the text, the two causes of ac

tion in this case clearly arose out of the same transaction; indeed, a more illustrative example could hardly be found among purely legal actions.

The

4 Viall v. Mott, 37 Barb. 208. 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. v. Beatty, 69 N. C. 329, 334.

5 Flynn v. Bailey, 50 Barb. 73. See Woodbury v. Delap, 1 N. Y. S. C. 20, 65 Barb. 501.

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.

§ 373. * 479. Statement of Question Examined in this Subdivision. 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 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.2

1 [Hayden v. Pearce (1898), 33 Ore. 89, 52 Pac. 1049; The Victorian Number Two (1894), 26 Ore. 194, 41 Pac. 1103; Pretzfelder v. Merchants' Ins. Co. (1895), 116 N. C. 491, 21 S. E. 302; Cook v. Smith (1896), 119 N. C. 350, 25 S. E. 958; Burrell v. Hughes (1895), 116 N. C. 430, 21 S. E. 971; Barry v. Wachosky (1899), 57 Neb. 534, 77 N. W. 1080; A. T. & S. F. Rld. Co. v. Comm'rs of Sumner Co. (1893), 51 Kan. 617, 33 Pac. 312; Draper v. Brown (1902), 115 Wis. 361, 91 N. W. 1001; Stewart v. Rosengren (1902), Neb. 92 N. W. 586; State v. Krause (1897), 58 Kan. 651, 50 Pac. 882; Hughes v. Hunner (1895), 91 Wis. 116, 64 N. W. 887; John R. Davis Lumber Co. v. Home Insurance Co. of New York (1897), 95 Wis. 542, 70 N. W. 84, the objection that the causes joined do not affect all the parties to the action must be raised by demurrer on that ground; Blakely v. Smock (1897), 96 Wis. 611, 71 N. W. 1052; Egaard v. Dahlke

(1901), 109 Wis. 366, 85 N. W. 369; Hilton v. Hilton's Adm'r (1901), 110 Ky. 522, 62 S. W. 6 ; Clayton v. City of Henderson (1898), 103 Ky. 228, 44 S. W. 667; Jamison v. Culligan (1899), 151 Mo. 410, 52 S. W. 224; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Anderson v. Scandia Bank (1893), 53 Minn. 191, 54 N. W. 1062; Carrier v. Bernstein (1898), 104 Ia. 572, 73 N. W. 1076; Smith v. Day (1901), 39 Ore. 531, 65 Pac. 1055; Beane v. Givens (1898), 5 Idaho, 774, 51 Pac. 987; Insley v. Shire (1895), 54 Kan. 793, 39 Pac. 713.]

2 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.

§ 374. *480. Effect of Code Provision Requiring that Causes of Action Joined in one Complaint must affect all the Parties. 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. 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 common-law 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

1 Vermeule v. Beck, 15 How. Pr. 333. The following cases furnish illustrations of the questions discussed in this and the succeeding paragraphs. Schnitzer v. Cohen, 7 Hun, 665; Barton r. Speis, 5 id. 60; Nichols v. Drew, 19 id. 490; Cook v. Horwitz, 10 id. 586; Brown v. Coble, 76 N. C. 391; Mendenhall v. Wilson, 54 Iowa, 589; Thorpe v. Dickey, 51 id. 676; Cogswell v. Murphy, 46 id. 44; Addicken v. Schrubbe, 45 id. 315; Hackett v. Carter, 38 Wis. 394; Heath v. Silverthorn Min. Co., 39 id. 146; Greene v. Nunnemacher, 36 id. 50; Lull v. Fox & Wis. Imp. Co., 19 id. 101; Arimond v. Green Bay & Miss. Canal Co., 31 id. 316. See also Kelly v. Newman, 62 How. Pr. 156 (defendants); Higgins v. Crichton, 11 Daly, 114; Hynes v. Farmers' Loan & Tr. Co. (Supreme, 1890), 9 N. Y. Suppl. 260 (plaintiffs); Mitchell v. Mitchell (N. C. 1887); 1 S. E. Rep. 648 (defendants); Himes v. Jarrett (S. C. 1887), 2 S. E. Rep. 393; Hoffman v. Wheelock, 62 Wis. 434; Waddell v. Waddell, 99 Mo. 338; Levering v. Schnell, 78 Mo. 167 (persons injured by fraud, whose interests are distinct, cannot join as plaintiffs unless the fraud was accomplished through a joint transaction); Mullen v. Hewitt, 103 Mo. 639 (fraudulent conveyances to separate grantees, no common design shown); Faivre v. Gillan (Iowa, 1892), 51 N. W. Rep. 46; Berg v. Stanwood, 43 Minn. 176 (im

proper joinder, where complaint alleges separate promises by two defendants to pay for the same work, and does not allege a joint promise); Langevin v. St. Paul (Minn. 1892), 51 N. W. Rep. 817; Brenner v. Egly, 23 Kan. 123; Lindh v. Crowley, 26 Kan. 47 (a cause of action against all the parties to a promissory note cannot be united with a cause of action on a judgment rendered on the note against one of the parties thereto); Heutig v. S. W. Mut. Benev. Ass., 45 Kan. 462; Rizer v. Davis Cy. Comm'rs, 48 Kan. 389; Haskell Cy. Bank v. Bank of Santa Fé (Kan. 1893), 32 Pac. Rep. 624; Hoye v. Raymond, 25 Kan. 665; Johnson v. Kirby, 65 Cal. 482; Powell v. Dayton, etc. R. Co., 13 Ore. 446. It is not a misjoinder to sue the sureties on a guardian's original bond and those on his additional bond in a single action; as "the rights and liabilities of each set of sureties depend for their extent on a correct ascertainment and adjustment of those of the other set, each is interested in the result of the liti gation with the other; hence all the parties are affected as required by the code;" 26 Weekly Law Bulletin (Cincinnati Com. Pleas), 147, 148, citing Allen v. State, 61 Ind. 268; Matthews v. Copeland, 79 N. C. 493; Holeran v. School Dist., 10 Neb. 406; and other cases. [Grady v. Maloso '1896), 92 Wis. 666, 66 N. W. 808.]

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.

§ 375. * 481. Illustration. 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 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