by the husband at the time of their separation. In California, by virtue of the provisions of a special statute, a cause of action against a sheriff to recover damages for his neglect to execute and return process may be joined with a claim to recover a statutory penalty for the failure in his official duty.2

§ 394. *500. Cause of Action upon Contract cannot be joined with one to recover Damages for a Tort. Illustrations. Author's Criticism. I shall conclude this section with a classified series of decisions which will illustrate the improper union of different causes of action. Except in Iowa, the rule is universal that a cause of action upon contract cannot be joined with one to recover damages for a tort, unless both should arise out of the same transaction, and thus fall within the inclusive terms of the first class. The following are examples merely of this elementary rule.3 A count against the defendant for his wrongful acts as president of a bank, and one against him as a stockholder in such bank to recover on its notes, were improperly embraced in the same complaint, also a claim against certain part owners of a vessel to recover her hire, which they had received, and one to restrain them from a threatened wrongful sale of the ship. It has been held that a demand arising from the breach of a warranty given upon the sale of chattels cannot be joined with one based upon the vendor's deceit practised in the same sale. Notwithstanding

1 Fritz v. Fritz; 23 Ind. 388.

[See late cases in Indiana as follows: Coddington v. Canaday (1901), 157 Ind. 243, 61 N. E. 567; State ex rel. v. Peckham (1893), 136 Ind. 198, 36 N. E. 28; Richwine v. Presbyterian Church (1893), 135 Ind. 80, 34 N. E. 737.]

2 Pearkes ". Freer, 9 Cal. 642.

8 [Clough v. Rocky Mountain Oil Co. (1898), 25 Colo. 520, 55 Pac. 809: A cause of action in contract against a corporation cannot be joined with a cause of action against the directors of the same corpora tion brought under a statute making the directors liable for the debts of the company in case they failed to make certain reports as to the condition of the company, the latter being the cause of action in tort. Allen v. Macon, etc. R. R. Co. (1899), 107 Ga. 838, 33 S. E. 696: A cause of action on contract cannot be joined in a single suit with a cause of action arising from a tort. Corbett v. Wrenn (1894),

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25 Ore. 305, 35 Pac. 658: Where a complaint contains allegations of a covenant against incumbrances and its breach, and also allegations of the representations of the defendant as to the freedom of the property from incumbrances, their falsity, defendant's knowledge that they were false, and plaintiff's reliance on them, there is a misjoinder of causes, one being in contract, the other in tort, but unless the objection is taken by demurrer it is waived. See also Conant v. Storthz (1901), 69 Ark. 209, 62 S. W. 415.]

4 Butt v. Cameron, 53 Barb. 642; but see Wiles v. Suydam, 6 N. Y. S. C. 292. 5 Coster v. N. Y. & E. R. Co., 3 Abb. Pr. 332.

these decisions, it is impossible to conceive of two legal causes of action which more completely and accurately correspond to the language of the codes, as "arising out of the same transaction." The bargain between the parties is certainly a transaction; certain language used by the seller may amount to a contract of warranty; certain other language may be the false representations; indeed, it is possible, and not at all unlikely, that the selfsame words. spoken by the vendor might be at once the fraudulent representations and the promise, for language otherwise sufficient is none the less a promise because the person using it knowingly lied when he uttered it. Το say that these two demands do not arise out of the same transaction is virtually to say that no two different legal claims ever can so arise. I cannot regard these decisions, therefore, otherwise than as mistaken.

$395. *501. Illustrations. In an action against a railroad company, the complaint contained three counts: the first for wrongfully carrying away and converting cattle; the second for the same injury done to hogs; and the third set up an agreement to transport cattle from a specified place to another, and averred a breach thereof by means of a negligent omission whereby the plaintiff lost his cattle. On demurrer, it was said that the first two causes of action, being for torts, could be joined; but the third was upon contract, and its union with the others was error.1 The joinder of a count for the conversion of chattels with one for money had and received would be clearly wrong; and the same is true of any tort and implied contract. It is doubtful whether a cause of action on contract and one for a tort to the person can be conceived of as arising out of the same transaction, so that they may be embraced in the same pleading. The attempt, however, has been made to unite a claim for the breach of a written contract to convey land with a cause of action for assault and battery

1 Colwell v. N. Y. & E. R. Co., 9 How. Pr. 311; Hoagland v. Han. & St. Jos. R. Co., 39 Mo. 451. See also Stark v. Wellman, 96 Cal. 400.

2 Cobb v. Dows, 9 Barb. 230, and cases in last note. See also Teall v. Syracuse, 32 Hun, 332.

8 Hunter v. Powell, 15 How. Pr. 221. It was held in Thomas v. Utica & B. R. R. Co., 97 N. Y. 245, that a cause of action for the omission by a railroad company to

construct and maintain a farm crossing. as required by statute, arises upon the breach of an implied contract to perform a statutory duty, and therefore cannot be united with a cause of action for damages for injuries to real property caused by the diversion of a stream. Followed in Hodges v. Wilmington & W. R. Co, 105 N. C. 170, a case presenting similar facts.

committed by the defendant in forcibly taking the instrument from the plaintiff's possession, but it was unsuccessful. In like manner, a cause of action against a lessee arising upon the lease cannot be joined with a claim for damages on account of injuries done to the property, unless, of course, the latter is embraced within some stipulation or covenant of the lease, so that it would in fact be a demand on the contract.2 It can make no difference with the rule that the tort is a fraud consisting in false statements or concealments. Thus, a complaint by an indorsee against his immediate indorser was held bad on demurrer, one count of which alleged the ordinary liability of defendant as indorser, and the other set up certain false representations as to the solvency of the maker, by which the plaintiff was induced to purchase the paper.3 The rule, in short, applies to all cases of demands based upon a promise, express or implied, and claims based upon fraud, unless the tort may be waived, and the complaint be framed so as to present both causes of action as arising from contract.4

§ 396. *502. Cause of Action against one in Personal Character cannot be united with one against him in Representative Character. Reason. Author's Criticism. Illustrations. Another particular rule, which is but an application of the same doctrine, requires that the several causes of action against or for a given person should all affect him in the same capacity. In other words a demand for or against a party in his personal character cannot be united with another demand for or against him in a representative character as trustee, executor, administrator, receiver, and the like. The reason usually given

1 Ehle v. Haller, 6 Bosw. 661.

2 Ederlin v. Judge, 36 Mo. 350. Conversely, a claim of damages for the breach of the lessor's covenant of quiet enjoyment, and a claim of damages for a trespass in his wrongful entering upon the demised premises and injuring the lessee's property thereon, cannot be joined. Keep . Kaufman, 56 N. Y. 332.

3 Jamison v. Copher, 35 Mo. 483.

4 Forkner v. Hart, Stanton's Code (Ky.), 60; Wilson v. Thompson, Id. 60; Hubbell v. Meigs, 50 N. Y 480, 487; Booth v. Farmers' & Mech. Bk. of Rochester, 1 N. Y. S. C. 45.

high Coal Co. (1901), 111 Wis. 545, 87 N. W. 472. Plaintiff was a retail coaldealer in the city of Superior, and filed his complaint in two counts against the defendants, who are wholesale and retail coaldealers. His first count stated a cause of action in favor of himself alone, for damages caused by an alleged malicious conspiracy on the part of the defendants to destroy his business, said defendants having combined for the purpose of establishing a monopoly and preventing plaintiff from purchasing coal. His second count stated an equitable cause of action in favor of himself and a number of other retail coal

5 [Hawarden v. Youghiogheny & Le- dealers similarly situated, in whose behalf

for this rule when applied to defendants is, that the judgment upon one cause of action would be against the defendant personally, to be made de bonis propriis, while the judgment upon the other cause of action would be against him in his representative or official capacity, and not perhaps to be made out of his own property; as, for example, it might be made de bonis testatoris. This reasoning, borrowed from the old law, is a mere formula of words, for there is nothing in the nature of things which prevents such a double judgment. It is just as easy for such a judgment to be rendered in one action as it is for two distinct judgments to be granted in separate suits. The argument, however, like so much of so-called legal reasoning, still has convincing force with most of the courts, even while administering the reformed system. The following cases are given as illustrations of this doctrine, and in all of them the joinder was pronounced improper: a complaint on a partnership debt against the defendant as surviving partner, and against him in a separate count as executor of his deceased partner;1 against the defendant personally, and also as an executor or administrator;2 in a suit against an executor or administrator, a demand which existed against the deceased in his lifetime, and a different demand which arose from a promise made by the executor or administrator after the death, for as to the latter claim the defendant is personally liable. On the

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he sued to restrain the defendants from a further enforcement of said conspiracy. A general demurrer was filed to the whole complaint on the ground that two causes of action were improperly joined. The court said: "The statute provides that causes of action, in order to be united in one complaint, must affect all the parties to the action.' Stats. 1898, sec. 2647. It is clear that this limitation would be violated if the two causes of action in this complaint were allowed to be united in one complaint. The first cause of action is a straight action at law for damages to the plaintiff alone. No one else has any interest in the judgment in that action, whatever it be. But the second cause of action is a cause of action in favor of a large number of persons constituting a class represented by the plaintiff. Potentially all of the class are parties. They are invited to become formal parties plaintiff, and presumably will accept the invitation. Thus the first cause of action

affects but one party plaintiff, whereas the second cause of action affects numerous parties plaintiff. The doctrine is frequently stated that the several causes of action for or against a person must affect him in the same capacity in order to make them capable of being joined. Pomeroy, Code Remedies, § 502. These conclusions are conclusive to the effect that the general demurrer to the whole complaint on the ground of improper joinder should have been sustained."]

1 Landau v. Levy, 1 Abb. Pr. 376.

2 McMahon v. Allen, 3 Abb. Pr. 89. By C. C. P. of New York, § 1815, such joinder is allowed in certain specified cases. [Crowley v. Hicks (1898), 98 Wis. 566, 79 N. W. 348.]

3 Ferrin v. Myrick, 41 N. Y. 315, 322; Austin v. Munro, 47 N. Y. 360, 364; s. c. 4 Lans. 67. See, however, Tradesman's Bank v. McFeely, 61 Barb. 522, which cannot be regarded as correct in the light of these other decisions.

same principle, a demand upon a contract between the plaintiff and the defendant, and a claim by the plaintiff as a shareholder in an unincorporated company against the defendant as president thereof, in respect of matters connected with the management of its affairs, were held to be improperly joined, since the defendant's liability, if any, in the latter cause of action existed against him as a trustee. The plaintiff must also sue in the same capacity in respect of all the causes of action. He cannot in one count sue as an executor or administrator, and in another sue in his personal character. In an action for malicious prosecution the complaint contained three counts: the first for the malicious prosecution of the plaintiff himself; the second for the same wrong done to his wife, she having been imprisoned; and the third for a like tort to his minor children. The only legal ground for recovery on the second and third of these counts. was declared to be the loss of the wife's society in the one case, and of the children's services in the other; as these injuries were personal to the plaintiff, they could be joined with the cause of action alleged in the first count for the tort directly to himself.3

§ 397. *503. Some Unclassified Cases. Author's Criticism. The cases which follow do not admit of any classification, and several of them are of doubtful authority, even if not palpably erroneous. A cause of action for a limited divorce on the ground of cruelty, desertion, and the like, cannot be united with one for an absolute divorce on account of adultery, or of any other matter prescribed by statute. The two demands are simply incompatible. It was decided by one judge in New York that a

1 Warth v. Radde, 18 Abb. Pr. 396. See, however, Logan v. Wallis, 76 N. C.

416.

2 Lucas v. N. Y. Cent. R. Co., 21 Barb. 245. But see Armstrong v. Hall, 17 How. Pr. 76, per C. L. Allen J., at Special Term, -a decision in direct opposition to the rule stated in the text; also, Hart . Metrop. El. Ry. Co., 15 Daly, 391. See also Quellen v. Arnold, 12 Nev. 234; Cincinnati, etc. R. Co. v. Chester, 57 Ind.

299.

Rogers v. Smith, 17 Ind. 323. [A cause of action for pain and suffering cannot be joined with the statutory cause of action for death. See Louisville Ry.

Co. v. Will's Adm'r (1902), — Ky. —, 66 S. W. 628; Lewis Adm'r v. Taylor Coal Co. (1902), 112 Ky. 845, 66 S. W. 1044; Page v. Citizens Banking Co. (1900), 111 Ga. 73, 36 S. E. 418. "Causes of action for malicious prosecution, malicious arrest, and false imprisonment, all sounding in tort, may be joined in the same action when the plaintiff and defendants in each cause of action thus joined are identical. Civil Code, § 4944." See also Sams v. Derrick (1898), 103 Ga. 678, 30 S. E. 668.]

Henry v. Henry, 17 Abb. Pr. 411; McIntosh v. McIntosh, 12 How. Pr. 289; Zorn v. Zorn, 38 Hun, 67; but see contra, Grant v. Grant (Minn. 1893), 54 N. W.