of action for slander and false imprisonment, and denied the motion. On appeal, the appellate division reversed the order of the special term, and allowed the amendment, holding that "injury at the same time to the person by physical violence and to the character by the language may well be regarded as parts of a single tort." The question of law is certified to us, "whether, under all the circumstances of the case, the plaintiff should have been allowed to amend her complaint for slander by adding thereto the statement of a cause of action for false imprisonment.'

We are unable to agree with the conclusion, reached by the learned appellate division, that injury at the same time to the person by physical violence and to the character by language may well be regarded as parts of a single tort. We think to so hold is to ignore a distinction that exists in all jurisdictions where the common law is administered. It is not necessary, however, to examine precedents, as the code of civil procedure (section 484) is decisive of this appeal. This section provides that the plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as set forth in nine subdivisions. The second, third and ninth are the only ones material to this controversy. They read as follows: "(2) For personal injuries, except libel, slander, criminal conversation or seduction. (3) For libel or slander.

(9) Upon claims arising out of the same transaction or transactions connected with the same subject or action and not included within one of the foregoing subdivisions of this section." The section then provides generally "that it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section." It thus appears that the legislature has indicated with great clearness and particularity the causes of action that may be united in the same complaint. The test is very simple, as all causes of action united must belong to the same subdivision of the section we are considering. False imprisonment is an injury to the person, and is embraced within subdivision 2, while slander is in express terms excluded therefrom, and placed in subdivision 3. The plaintiff's case is not aided by subdivision 9 of the section, which provides for uniting causes of action upon claims arising out of the same transaction. It does not follow

that two causes of action, originating at the same time, arose, as a matter of law, out of the same transaction, or are proved by the same evidence. Anderson v. Hill, 53 Barb., 245, 246. In the case last cited the general term of the supreme court held that causes of action for assault and battery and slander could not be united in the same complaint. Mr. Pomeroy, in his work on Code Remedies (section 474), in commenting on that case, says: "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 transaction 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 existing wrongs. The only common point between the causes of action was one of time, but this unity of time was certainly not a 'transaction.'"' The separate and distinct nature of the causes of action of false imprisonment and slander are apparent when we apply the test, under the circumstances of the case at bar, whether the same evidence would prove the plaintiff's case in the two actions. It is obvious that it would not. In the action for false imprisonment, plaintiff must show an unlawful arrest and detention. In the action for slander, the proof would be the uttering of the slander in the presence of others, its falsity, if justified, and extrinsic evidence of malice, if any existed. The measure and proof of damages in the two causes of action would be entirely different. The order appealed from should be reversed, with costs, the order of the special term should be affirmed, and the question of law certified to us is answered in the negative. All concur. Ordered accordingly.

t

CODE PROVISIONS:

CHAPTER IV.

THE ANSWER.

Answer; what to contain.-The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.-N. Y. Code, Civ. Proc., Sec. 500.

Answer shall contain, what.-The answer of the defendant shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief; second, a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition. Mo. R. S., 1899, Sec. 604.

Counter-claim defined. The counter-claim, specified in the last section, must tend in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action:

1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action on contract, any other cause of action on contract, existing at the commencement of the action.-N. Y. Code, Civ. Proc., Sec. 501.

Counter-claim must arise from what.-The counter-claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the sub

ject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer.Mo. R. S., 1899, sec. 605.

Defendant may interpose several defenses or counter-claims; rules relating thereto.

A defendant may set forth in his answer, as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counter-claim must be separately stated, and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.-N. Y. Code, Civ. Proc., Sec. 507.

When defendants shall answer jointly.-Two or more defendants, making the same defense, shall answer jointly. Different consistent defenses may be separately stated in the same manner.-Mo. R. S., 1899, Sec. 606.

Section 1. General and Specific Denials.

BOMBERGER v. TURNER.

13 Ohio St., 263. [1862.]

The defendant in error filed his petition, in said superior court, against the plaintiffs in error and one William M. Seely, setting forth the rendition of a decree in Montgomery common pleas, in 1849, against said Seely, and in favor of said Clyne for $1,191.05 and costs of suit, and a revival of that decree in 1856, in the name of said administrator; that Seely has no property subject to levy, but that, during the pendency of said first suit, he was the owner of lot No. 988, in the city of Dayton, and combined with one George W. Bomberger, his attorney and friend, to defraud said Clyne, and prevent the collection of his anticipated judgment; that, in furtherance of such combination,

the two went to Troy, Miami county, where judgments, wholly without consideration, were confessed by said Seely, before a justice of the peace, in favor of said Bomberger, for $297.75; that executions thereon against the lands of said Seely were awarded by the Miami common pleas, upon which said lot No. 988 was sold to said Bomberger, who purchased the same under an express agreement to take the title and hold it in trust for said Seely; that Bomberger died long after said sale, but without having received any deed for said lot; that, in 1852, a deed was made to the plaintiffs in error, as his heirs at law. The petition asks that said sale and conveyance be adjudged fraudulent and void as against said judgment, and that the lot be sold to satisfy the same.

PECK, J. *

4. It is insisted that the court also erred in rendering judg ment for plaintiff below, without proof that Seely had no property subject to levy, that fact having been put in issue, it is said, by the pleadings.

The petition avers, that, "the said Seely has no property whereon to levy," while the answer says merely, "these defendants do not admit that said Seely has no property on which to levy." Here certainly is no denial of the averment, much less any affirmation that Seely had such property, the proper way to controvert such negative averment. Nor is there any reason stated for the absence of such affirmation or denial. then no such controverting of the averment, as put the plaintiff upon proof of its truth. Code, sec. 127. A mere call for proof unaccompanied by a denial, would not have imposed such obligation upon the plaintiff. Bentley v. Dorcas, 11 Ohio St. Rep., 309. Judgment reversed on other grounds.

There was

WADLEIGH v. MARATHON COUNTY BANK.

58 Wis., 546. [1883.]

LYON, J. 1. Did the circuit court err in denying plaintiff's motion for judgment, for the alleged frivolousness of the original answer? If the answer was frivolous-that is, if it contained no denial of any material allegation of the complaint