may be joined in one action,103 and cannot be divided into several claims and separate actions; 104 as by the plaintiff, as devisee, for rent, and, as executrix, for breach of covenant, all arising out of the same lease.1 105 So, also, claims against the same defendant in different capacities may be united.106 For money received on account of an estate, and also for a promissory note which is part of the estate, but payable to the executor individually.107 So of claims against various parties, liable to contribute their proportion for repairs, for the general benefit of all.108 Against a constable for different breaches of duty, and against his surety, held capable of joinder.109 It would also seem that in New York, a claim by a stockholder, who is also a judgment creditor of a corporation, may in certain cases maintain an action against the corporation, and against its other stockholders, and its other creditors, with a view to ascertain and provide for the rights of all parties.110

§ 210. Several counts.-A complaint which contains a count setting forth the facts attending the purchase of a county warrant by plaintiff, and charging that defendants are liable upon an implied contract to repay the purchase money, and a second count charging defendants as indorsers of negotiable paper, and a third count in the usual form for money had and received, is not demurrable on the ground of a misjoinder of causes of action.111 In Iowa, a party may state in one count a cause of action on a note, and in another a cause of action on the consideration of a note.112

§ 211. Single cause of action.-A complaint for the enforcement of an attorney's lien, in which both parties to the suit and sureties upon the appeal-bond are made defendants, does not state more than one cause of action.113

§ 212. Specific performance.-A claim for specific performance of a contract to convey real estate, and for payment of a reason

103 Durant v. Gardner, 19 How. Pr. 94, 10 Abb. Pr. 445.

104 Tootle v. Kent, 12 Okla. 674, 73 Pac. 310.

105 Armstrong v. Hall, 17 How. Pr. 76.

106 Pugsley v. Aikin, 11 N. Y. 494; Lord v. Vreeland, 13 Abb. Pr. 195. 107 Welles v. Webster, 9 How. Pr. 251.

108 Denman v. Prince, 40 Barb. 213. 109 Moore v. Smith, 10 How. Pr. 361.

110 Geery v. New York etc. S. S. Co., 12 Abb. Pr. 268.

111 Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78.

112 Camp v. Wilson, 16 Iowa, 225. 113 Coombe v. Knox, 28 Mont. 202, 72 Pac. 641.

able sum for use and occupation, is not setting up two distinct. causes of action which cannot be united.114 A cause of action for damages for breach of a contract and one for specific performance of the same contract may properly be joined in the same complaint without separately stating them.115 Grantor with warranty, and holder of an incumbrance, may be joined, to obtain satisfaction of such incumbrance, and a recovery over for any amount found due on it.118

§ 213. Specific personal property.-Claims for the recovery of specific personal property, with or without damages for the withholding thereof, may be joined.117 So, also, replevin and fraud may be united.1

118

§ 214. Specific real property.-Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits on the same may be united,119 but the common-law rule prevails, and they cannot be united in absence of such statutory provision.' 120 A complaint in ejectment may be for two separate and distinct pieces of land, but the causes of action must be separately stated, and affect all the parties to the action, and not require different places of trial.121 Otherwise, it would appear that the old form of declaring in ejectment by separate counts is no longer admissible.122 Two causes of action to enforce distinct and different trusts respecting different tracts of land, and arising out of different acts of fraud, may properly be united.123 A property-owner suing a railroad company for injuries from fire escaping from its premises may allege both statutory and common-law liability, and not be compelled to elect between the two causes. 124

114 Spier v. Robinson, 9 How. Pr.

325.

115 San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549, 41 Pac. 495, 29 L. R. A. 839.

116 Wandle v. Turney, 5 Duer, 661. 117 Cal. Code Civ. Proc., § 427. 118 Truebody v. Jacobson, 2 Cal. 269. 119 Cal. Code Civ. Proc., § 427; Sullivan v. Davis, 4 Cal. 291; Hoffman v. Tuolumne Water Co., 10 Cal. 413; Gale v. Tuolumne Water Co., 14 Cal. 25; Hotchkiss v. Auburn etc. R. R.

Co., 36 Barb. 600; Sternberger v. Mc. Govern, 56 N. Y. 12; Perry v. Richardson, 27 Ohio St. 110.

120 McKenzie v. Porter, 40 Colo. 340, 91 Pac. 916.

121 Boles v. Cohen, 15 Cal. 150. 122 St. John v. Pierce, 22 Barb. 362. 128 Murphy v. Crowley, 140 Cal. 141, 73 Pac. 820; Trubody v. Trubody, 137 Cal. 172, 69 Pac. 968.

124 Crissey etc. Lumber Co. v. Denver etc. R. R. Co., 17 Colo. App. 275, 68 Pac. 670.

§ 215. Specific relief.-Claims by a debtor to have obligations delivered up and canceled, and an account of the securities pledged for them, and payment of the overplus, is but one cause of action.125 A cause of action for reformation of mortgage, and for simultaneous foreclosure, may be united.126 So suit against indorser for liability on note, and for decree against mortgagor foreclosing the mortgage, may be united;127 and a claim to reform an assignment in part, and for accounting under it when reformed.128 An action for damages and for injunction to prevent further damage is properly united, and it is not necessary to have. the equitable issues first tried by the court.129 Under the Oklahoma Code of Civil Procedure, all the rights of the parties, both legal and equitable, so far as they are consistent with one another and affect the rights of the same parties, may be united in one action.130

§ 216. Trespass.-In Massachusetts, under trespass, the several species of quare clausum and de bonus asportatis may be joined.131 Counts in trespass upon the case may be joined with a count in trover.1 132 So a cause of action for cutting wood, and also one for the conversion of wood, may be combined.133 A cause of action for damages for a trespass, and a cause of action for an injunction to restrain further or additional trespass threatened to be committed upon the same property, may be joined ;134 and the objection that they are not separately stated cannot be reached by demurrer on that ground, but only by motion, unless the complaint is thereby made ambiguous, unintelligible, or uncertain.135 Under subdivision 9 of section 484 of the New York Code of Civil Procedure, a cause of action for trespass upon land, and a cause of action for conversion of personal property, when both arise out of the same transaction, may be united.136 A complaint setting forth two causes of action, one for entering upon

the plaintiff's land under water and taking and carrying away fish, the other for a like entry upon the plaintiff's land and catching and killing animals thereon, states two causes of action for injuries to real estate, which may be properly joined.137 The additional allegations of injuries to personal property are not statements of separate causes of action, but mere averments in aggravation of the wrongful entry.138 Allegations as to seduction, in a complaint for breach of promise of marriage, are merely in aggravation of damages, and do not make the complaint open to the charge of embracing two causes of action, where seduction is not actionable at the suit of the person seduced.139 Counts may be joined in the same declaration for malicious prosecution and slander.140

A complaint in an action to remove a cloud on title is not obnoxious to the objection that it improperly unites several causes of action because it sets out several reasons why the outstanding title is invalid.141 Nor is a complaint in an action by a principal for an accounting from an agent demurrable for misjoinder of different causes of action because it alleges various kinds of misconduct on the part of the agent.142 A complaint. against an executor individually and to recover a deposit of purchase money paid him as executor is demurrable for misjoinder of parties defendant and for misjoinder of causes of action.148 A joint action will not lie against the separate owners of dogs which unite in destroying the property of a third person. Each owner is liable only for the damage done by his own dog, and not for that which is done by the dogs which do not belong to him.144

§ 217. Cause of action under the money counts.

[TITLE.]

Form No. 65.

The plaintiffs complain, and allege:

I. That at the times hereinafter mentioned, the plaintiffs were partners, doing business at the city and county of San Francisco,

137 Whatling v. Nash, 41 Hun, 579. 138 Id.; Gilbert v. Pritchard, 41 Hun, 46. But compare Gunn v. Fellows, 41 Hun, 257.

139 Getzelson v. Bernstein, 37 N. Y. Supp. 220, 15 Misc. 627, 72 N. Y. St. Rep. 799.

140 Bible v. Palmer, 95 Tenn. 393, 32 S. W. 249.

141 Day v. Schnider, 28 Or. 457, 43 Pac. 650.

142 San Pedro Lumber Co. v. Reynolds, 111 Cal. 588, 44 Pac. 309.

143 Schlicker v. Hemenway, 110 Cal. 579, 52 Am. St. Rep. 116, 42 Pac. 1063.

144 State (Nierenberg) etc. V. Wood, 59 N. J. L. 112, 35 Atl. 654.

state of California, under the firm name of A. B. & Co., and the defendants were partners doing business at the said city and county of San Francisco, under the firm name of C. D. & Co. First. For a first cause of action, the plaintiffs allege:

I. That on the . . . day of . . ., 19.., at .. at the request of the defendants, the plaintiffs deposited with the defendants the sum of . . . dollars, gold coin of the United States, which sum the defendants promised to pay to the plaintiffs on demand.

II. That on the . . . day of . . ., 19.., at . . ., the plaintiffs demanded payment of the same from the defendants, but they have not paid the same.

Second. And for a second cause of action, the plaintiffs allege: I. That on the . day of 19.., at . the defendants received dollars from one E. F., to be paid to

the plaintiffs.

II. That the defendants have not paid the same.

Third. And for a third cause of action, the plaintiffs allege: I. That on the . . .. day of tiffs loaned to the defendants . .

.

., 19.., at

the plain

dollars.

II. That the defendants have not paid the same.

[DEMAND OF JUDGMENT.]