is, within the meaning of the statute, an action to recover possession of lands, and may be united with a cause of action for damages on account of defendant's delay in performing the contract.1 In like manner, a claim to recover possession of chattels may be united with a claim for damages for their taking or detention.2

§ 495. Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims arising from injuries of all kinds, whether with or without force, whether direct or consequential, and whether to real or to personal property. Singularly enough, injuries to the person are placed in the same group in most of the States, rather than in a class by themselves, or with injuries to character. The following are examples of causes of action arising from injuries to property which have been held properly united in a single suit: in an action against a railroad company (1) for damages resulting from the unlawful throwing down the fences on plaintiff's farm, whereby cattle entered and destroyed the growing crops; (2) for damages caused by water thrown on to the farm by means of an embankment; (3) for damages from earth piled upon the farm, obstructing the passage of teams and the free use of the land; (4) for damages occasioned by the killing of cattle by means of passing engines; an action by a mine-owner, alleging (1) injuries caused by the bursting of defendant's dam, negligently constructed, whereby goldbearing earth was washed away, and (2) damages resulting from the delay and hinderance in working the mine; where the complaint contained two counts, the first being for trespasses done to the land prior to its conveyance to the plaintiff, the claim having been assigned to him, and the second alleged that the plaintiff was owner and in possession of the land, that the defendants were about to enter upon the same and quarry and carry away minerals therefrom, and prayed an injunction restraining the trespasses, the two causes of action were held to be properly joined, although one was legal and the other equitable. On the same principle, in a suit to recover possession of land, a separate cause

1 Worrall v. Munn, 38 N. Y. 137. A demand for a specific performance against A. cannot be united with a demand to recover possession against B. Fagan v. Barnes, 14 Flor. 53, 56.

Pharis v. Carver, 13 B. Mon. 236. 8 Clark's Adm'r v. Han. & St. Jo. R. R.,

36 Mo. 202; and see Tendesen v. Marshall, 3 Cal. 440.

4 Fraler v. Sears Union Water Co., 12 Cal. 555.

5 More v. Massini, 32 Cal. 590, 595, per Shapter J. The opinion in this case is instructive.

of action may be added to restrain a threatened trespass and commission of waste. A cause of action for deceit practised in the sale of chattels may be joined with one for the unlawful taking and conversion of other goods; the claim of damages for the fraud in such a case arises from an "injury to property" within the meaning of the codes.2

§ 496. Within the class of "injuries to character" fall not only actions for libel and for slander, but those for malicious prosecution; the gist of the latter, according to the old authorities, being the wrong done to the plaintiff's reputation. A cause of action for malicious prosecution may, therefore, be joined with one for libel or slander, or both.3

§ 497. The following are some special cases. In Wisconsin a complaint was sustained in an action by a creditor, one count of which set up a cause of action against a bank to recover certain property or its value, and another count alleged a cause of action against delinquent stockholders of the corporation. Where a complaint contained two causes of action, the first to enforce an implied trust alleged to have arisen in favor of the plaintiff on the conveyance of lands from himself to the defendant, and the second to enforce a vendor's lien on the same lands, they were held to be properly united, since both arose out of trusts, the one by virtue of a contract, and the other by operation of law. In another equitable suit the joinder of four causes of action was sustained, where the first was to reform a certain trust deed by inserting the name of a trustee, and to foreclose it when reformed, the second was to foreclose a mortgage upon the same land, while the third and fourth were to enforce certain charges which were liens on the land, and which the plaintiff had been compelled to pay in order to protect his security.

§ 498. All of the foregoing cases were decided under State codes which contain substantially the same provisions and the same division into classes. In Indiana and Iowa, it will be remembered, the corresponding sections of the statute are peculiar, and

more latitude is permitted, especially in the latter State, in the joinder of unlike causes of action. As in Iowa, all legal or equitable causes of action may be united, a claim arising upon contract may be included in the same petition with one for damages resulting from any kind of tort. And where twenty-two different parcels of land belonging to the same owners had been conveyed to the plaintiff by as many separate tax deeds, he was permitted to foreclose all these deeds, and thus cut off the owner's right of redemption in one action. In construing the sections of the Iowa code which give the trial court a discretion in reference to the joinder of unlike causes of action, and which authorize it to compel an election, or to strike out on the defendant's motion, it is held that the provision for compelling the plaintiff to elect applies only to a case where the various causes of action set forth in the petition are merely different modes of stating one and the same demand, and the defendant must file an affidavit showing this fact as the basis of his motion; but the court may, on defendant's motion, strike out a cause of action which it deems impossible or inconvenient to try with the others, but in no case is a demurrer the proper remedy.3

§ 499. In Indiana, a cause of action by a wife for an absolute divorce was held properly joined with a cause of action to compel the specific performance of an agreement to convey certain lands to her made 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.

$500. 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

1 Turner v. First National Bank, 26 Iowa, 562.

2 Byington v. Woods, 13 Iowa, 17, 19. See, per contra, Turner v. Duchman, 17 Wisc. 500.

3 Reed v. Howe, 28 Iowa, 250, 252; Iowa, &c R. R. v. Perkins, 28 Iowa, 281. In the following cases, the causes of action were held to have been improperly joined an action by two piaintiffs for the destruction of chattels owned by them jointly, and also for an assault and battery

committed upon each; but, no motion
having been made to strike out, the ir-
regularity was thereby waived. Grant ».
McCarty, 38 Iowa, 468: an action by two
persons not partners for a slander of each,
but on the trial the case was severed, and
the trial proceeded on behalf of one alone,
and this was held proper. Hinkle v.
Davenport, 38 Iowa, 355.

Fritz v. Fritz, 23 Ind. 388.
5 Pearkes v. Freer, 9 Cal. 642.

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: 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 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. To 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 mistaken.

§ 501. 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 Butt v. Cameron, 53 Barb. 642; but see Wiles v. Suydam, 6 N. Y. S. C. 292. 2 Coster v. N. Y. & E. R. R., 3 Abb. Pr. 332.

The joinder of a count for

Springsteed v. Lawson, 14 Abb. Pr. 328; Sweet v. Ingerson, 12 How. Pr. 331. Colwell v. N. Y. & E. R. R. 9 How. Pr. 811; Hoagland v. Han. & St. Jo. R. R., 39 Mo. 451.

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.2 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 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. 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. 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.“

§ 502. 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 for this rule when applied to defendants is, that the judgment

1 Cobb v. Dows, 9 Barb. 230, and cases demised premises and injuring the lessee's in last note. property thereon, cannot be joined. Keep v. Kaufman, 56 N. Y. 332.

2 Hunter v. Powell, 15 How. Pr. 221. 3 Ehle v. Haller, 6 Bosw. 661.

4 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

5 Jamison v. Copher, 35 Mo. 483.

6 Forkner v. Hart, Stanton's Code (Ky.) 60; Wilson v. Thompson, Ibid. 60; Hubbell v. Meigs, 50 N. Y. 480, 487; Booth v. Farmers' and Mechanics' Bank, 1 N. Y. S. C. 45.