decision, held that since such an amendment states a new cause of action, and could not have been joined originally in the same complaint, it was barred under the one year statute of limitations.

The retrogressive character of this decision is particularly unfortunate, turning as it does against the modern tendency to liberalize the rules as to amendments. A natural aversion to defeating the honest claim of a litigant by a mere technicality prompted the adoption of the code systems of practice and pleading. It was, perhaps, that same aversion which prompted the inclusion of section 9513 into the Alabama Code. A significant clause of that section reads: "Such an amendment shall relate back to the commencement of the suit and it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction, property, title and parties as the original." The Alabama courts, under this provision, have permitted a count in trover to be amended to a count in assumpsit,2 and amendment from a count in detinue to a count in trover. They have held, in cases similiar to the principal one, that an amendment based on the same transaction, between the same parties and for the same injury is not a departure, and that no new cause of action is thereby set up.4

Whether this particular clause is mandatory and compels the court for the purposes of amendment to call two causes of action one; or whether this is another instance of the enlargement of the concept of the cause of action, is not clear. In either event it permitted the court in the instant case to allow this amendment after the statute of limitations had run, because it does relate to the same transaction and parties, even though (under the more rigid concept of the cause of action herein advocated) it does constitute a new cause of action. Even courts hampered by less liberal code provisions are beginning to arrive at this result, albeit indirectly.

5

Instead, the court reached its reactionary conclusion, and that on the singular ground that such causes of action could not have been joined originally in the same complaint. A mere citation of authorities would be sufficient to refute this reasoning. The interpretations of the practically universal phrase in the codes of "arising out of the same transaction" have permitted the joining of causes of action more at variance with, and further removed from, each other than these in question. The court, as one would suspect, rendered its opinion without the citation of a single authority, though cases in point are legion. The minority of the court, on the other hand, 2Gambill v. Fox Typewriter Co. 190 Ala. 36, 66 So. 655 (1914). Wilson v. Ratcliff, 197 Ala. 548, 73 So. 84 (1916).

Ala. Cons. Coal Co. v. Heald, 154 Ala. 581, 45 So. 686 (1908)-where by the amended complaint the same substantial facts are pleaded, merely differing in form from that of the original complaint, no new cause of action is set up by the amendment. Dallas Mfg. Co. v. Townes, 162 Ala. 630, 50 So. 157 (1909). Gaines v. Birmingham R. Co. 164 Ala. 6, 51 So. 238 (1909) Louisville & N. R. Co. v. Echols, 203 Ala. 627, 84 Šo. 827 (1919)-a complaint for injuries to a railroad employee which was silent as to whether his employment was in intrastate or interstate commerce may be amended after two years to allege that it was interstate. 37 C. J. 1068, § 507.

521 R. C. L. 468, § 34.

with so much of authority and equity to sustain its view, contents itself with the citation of two relatively unimportant cases-the inevitable result of the localization of a problem which is basically universal.

The controversy about which this case really centers is the very fundamental one-what constitutes a cause of action? All agree that an amendment which does not set up a new cause of action, but merely amplifies the one stated in the original complaint, relates back to the date of the complaint and hence is not barred by any period of limitation. But authority is divided as to whether the type of amendment here in question does or does not set up a new cause of action. It is conceded that the weight of authority holds such an amendment to be merely an amplification of the first cause of action. But in analyzing the cases in point, in a representative jurisdiction like New York, we find so many inconsistencies that we are inclined to doubt their persuasiveness.

As opposed to the cases cited as illustrative of New York's position, there is the case of Hughes v. N. Y. O. & W. R. Co.10 In that case the plaintiff based his action for negligence on the Pennsylvania common law; subsequently he died and his administratrix was substituted as plaintiff and the complaint amended, after the Federal Statute of Limitations had run, to conform to the Federal Employers' Liability Act. The court held this to be a new cause of action and barred by the Statute of Limitations. The court's position here that there are two causes of action is unassailable. There never existed a cause of action at common law for an injury causing death." Hence to say that this amendment is an amplification of the original cause of action is a contradiction in terms. That which does not exist cannot by any manner of means be amplified.

12

Or, consider the interesting case of Kinney v. N. Y. C. R. Co.,12 which began its career in the law courts of New York in 1908, and after appearing ten times in the appellate courts of New York was finally disposed of in 1922 by the Supreme Court of the United States. In that case the plaintiff based his action on the state's Workmen's Compensation Act, and after being finally defeated in the Court of Appeals, asked leave to amend his complaint so as to claim under the

7Ibid.

8(1920) 8 A. L. R. 1405 n. That it does not set up a new cause of action, see supra note 6; that it does, 37 C. J. 1074, § 511.

'Supra note 6.

10158 App. Div. 443, 143 N. Y. Supp. 603 (2nd Dept. 1913); accord, Hall v. Louisville R. Co. 157 Fed. 464 (N. D. Fla. 1907).

118 R. C. L. 719, § 15.

12 The same case in: 148 App. Div. 900, 132 N. Y. Supp. 1134 (4th Dept. 1911); 157 App. Div. 942, 142 N. Y. Supp. 1126 (4th Dept. 1913); 217 N. Y. 328, III N. E. 1048 (1916), 98 Misc. 11, 162 N. Y. Supp. 42 (Sup. Ct. 1916); 164 N. Y. Supp. 1098 (1917); 166 N. Y. Supp. 868(1917); [(in accord, Seaboard Air Line R. Co. v. Renn 241 U. S. 290, 36 Sup. Ct. 567 (1915); Luichetti v. Phil. & R. R. Co. 233 Fed. 137 (E. D. Pa. 1916); Hogarty v. Phil. & R. R. Co. 255 Pa. 236, 99 Atl. 741 (1916); Carpenter v. Central R. Co., 93 Vt. 357, 107 Atl. 569 (1919)]; 185 App. Div. 903 171 N. Y. Supp. 1090 (1918); 175 N. Y. Supp. 241 (1919); 190 App. Div. 967, 179 N. Y. Supp. 929 (1920); 231 N. Y. 578, 132 N. E. 895(1921); 257 U. S. 626, 42 Sup. Ct. 49 (1921); 260 U. S. 340, 43 Sup. Ct. 122 (1922).

Federal Employers' Liability Act, after the Federal Statute of Limitations had already run. The court12 granted the permission to amend on the basis of one cause of action. In the next trial of this case a verdict was returned for the plaintiff, which was reversed 125 on the ground that there were two causes of action and the new cause of action was barred by the Statute of Limitations. This court criticized the previous decision allowing the amendment. This case in turn was reversed in the appellate court in a memorandum decision, but upon another ground. The last Court of Appeals case affirmed a judgment on the verdict for the plaintiff by a four to three decision without rendering an opinion. This case was finally affirmed by the Supreme Court of the United States, 13 but on the ground that the complaint alleged facts which might have constituted a wrong either under the state or federal statute according to the nature of the employment, and a subsequent amendment alleging the employment to be interstate, did not introduce a new cause of action.

14

Then there are the analogous situations represented in the case of Shephard Co. v. Taylor Co., where a plaintiff, defeated in his common law action, brought a statutory action for the same injury. The court there held, correctly, that the former action was not res judicata. This is obviously inconsistent with the one cause of action view. It is obvious therefore, that the one cause of action view, sponsored by the majority, does not lend itself to a consistent treatment. On the other hand it is only necessary to refer to a recent convincing discussion of the problem, 15 to see why the position of the minority, in holding such an amendment to be a new cause of action, is the more logical and correct one. A cause of action is there defined as "that group of operative facts which standing alone, would show a single right in the plaintiff and a single delict to that right, giving cause for the state through its courts to afford relief to the party whose right was invaded. The singleness of the right and delict is determined by a study of the old remedies in connection with which the concepts as to singleness of rights and delicts developed." The reasons there given for thus asserting that the legal cause of action under the codes is the same as before the codes, is well nigh conclusive. It is there pointed out that centuries of experience under the common law demonstrated that the scope of the common law cause of action was best suited for the lay jury and that since the system of trial by jury has been preserved, the cause of action must necessarily retain its common law simplicity. To enlarge the scope

12a98 Misc. II, 162 N. Y. Supp. 42 (1916).

12b166 N. Y. Supp. 868 (1917).

13 Supra note 14.

14198 App. Div. 638, 109 N. Y. Supp. 837 (4 Dept. 1921); accord, Troxell v. Del. L. & W. R. Co. 227 U. S. 434, 33 Sup. Ct. 274 (1913); Dennison v. Payne 293 Fed. 333 (1924); but cf, Luce v. N. Y. C. R. R. Co., 213 App. Div. 374, 211 N.Ÿ. Supp. 184 (1925)-where the plaintiff defeated in his state workmen's compensation action brings another action, based upon the federal act, for the same injury. Here the court, by a three to two decision, held that the former action was res judicata as to the present. Accord, Chicago etc., R. Co. v. Schenkel, 270 U. S. 611, 46 Sup. Ct. 420 (1926).

15 McCaskill, Actions and Causes of Action (1925) 34 YALE L. J. 614, 638.

of the cause of action, not only tends to confuse the jury, but the busy trial judge as well. It causes, for example, the mixing up of facts calling for the application of unrelated principles of law, and introduces new and inconvenient applications of the rule which forbids the splitting of single causes of action.

The New York courts have always liberally allowed amendments, for the very purpose of protecting litigants from the loss of rights by the running of the Statute of Limitations.16 But in their anxiety to do so, and believing themselves hampered by the Civil Practice Act, they have adopted the confusing method of achieving this result by extending the concept of the cause of action. However, their recent interpretations of Rule of Civil Practice 166, and sections 23, 105, and III of the Civil Practice Act have gone a long way towards removing the necessity of maintaining this anomaly.

Under Rule of Civil Practice 16617 the trial court is now empowered to permit an amendment of any pleading at the trial, even though the amendment changes the cause of action.18 In Copeland v. Hugo19 the court held that under the provisions of section 105 of the Civil Practice Act, and Rule 166, the court has the power to allow an amendment changing the cause of action, where the result sought to be reached is the same. Section 23 of the Civil Practice Act20 is particularly analogous in this connection. Under this section, if an action is timely begun but is terminated by the reversal of a judgment for the plaintiff or for any reason other than (a) voluntary discontinuance, (b) dismissal for neglect to proceed, or (c) a judgment against the claimant on the merits, the claimant may commence a new action for the same cause within one year after such termination, although the time limited by the statute has expired. A fortiori, where only an amendment, like that in the principal case, is sought before

16Rowell v. Moeller, 91 Hun. 421, 424, 36 N. Y. Supp. 223 (1st Dept. 1895) See also Hatch v. Central Nat. Bank, 78 N. Y. 487 (1879), after the satisfaction of a judgment in favor of the plaintiff, it is within the discretion of the court to vacate it and to amend the complaint by adding new causes of action, although by so doing, the Statute of Limitations is avoided.

17Rule 166: "If a pleading be defective, whether for failure to state a cause of action, or a defense, or otherwise, and objection thereto has not been raised before the trial, the judge may permit it to be amended."

Civ. Prac. Act, § 111: "Whenever in any action or special proceedings it shall appear at any stage of the proceedings, or upon appeal, that the appropriate remedy upon the facts pleaded or alleged, or proved, is different from that asked for in the pleadings... the proceedings may be amended ... in order that the relief may be finally granted which is appropriate to the facts, to the same extent as if the application had been in the first instance for the relief granted." This is a new section in the code which apparently has not yet been discovered by the courts. As to the effect of this section see Rothchild, (1926) 4 N. Y. L. REV. 272. Civ. Prac. Act, § 105, "At any stage of any action... a mistake, omission, irregularity or defect may be corrected or supplied.

18MEDINA, PLEADING AND PRACTICE UNDER N. Y. CIV. PRAC. ACT, 196 (1923). 19212 App. Div. 229 207 N. Y. Supp. 446 (4th Dept. 1925).

20Civ. Prac. Act § 23: "If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal without awarding a new trial... the plaintiff... may commence a new action for the same cause after the expiration of the time so limited and within one year after such a reversal or termination." See Billing v. German Ins. Co. 51 Misc. 463, 100 N. Y. Supp. 424 (Sup. Ct. 1906) Gaines v. City of N. Y., 215 N. Y. 533, 109 N. E. 594 (1915).

a judgment is rendered, the court should find no difficulty in permitting it.

What is uppermost in the judicial mind in the determination of this problem is made evident in the two recent and important cases cited in support of the majority view. With respect to the plaintiff, we find this language in the dissenting opinion by Davis, J., in Luce v. N. Y. C. R. Co.21 in point: "I cannot believe that it is the policy of the law to so penalize the plaintiff as to deny her a remedy actually given her under one statute because she made a mistake as to legal effect of another statute and sought vainly to pursue a remedy not given her under the particular facts. She is still entitled to her fair day in court." While as to the defendant's position, the following language by Holmes, J. is apt: "When a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of a specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule shall be applied."'22

These progressive views leave no room for the limitations of the one cause of action theory. Nor can they be given effect by enlarging its concept without creating the confusion and inconsistencies evidenced in the principal case, and the cases above discussed. On the contrary, they permit of but one logical sequence to recognize such an amendment to be what it really is a new cause of action-but for the very views expressed, allow it to relate back to the original complaint and so toll the statute of limitations. There is nothing in the New York Civil Practice Act, nor in the Alabama Code, that prevents the consistent application of this principle. The instant case seems merely a sporadic reactionary gesture which inevitably appears in the wake of all progressive thought.

Samuel Willig.

Rule against Perpetuities: Interests subject to the rule: Contracts. It has become settled law in most jurisdictions, since the decision in London & Southwestern R. Co. v. Gomm,' that options to purchase land create in the option holder an interest that is subject to the rule against perpetuities. The greater body of American courts today follow the rule thus broadly laid down,2 though there is

22 Supra note 12, at 346.

21 Supra note 14, at 381. 120 Ch. Div. 562 (1882). The Gomm case has not been extended in England. See In re Doyle's Estate, (1907) I I. R. 204; S. E. Ry. v. Associated Portland Cement Mfrs. (1900) Limited, (1910) 1 Ch. 12. But it is still law there. In re Tyrrell's Estate, (1907) I I. R. 292; Rider v. Ford, (1923) 1 Ch. 541. But see Manchester Ship Canal Co. v. Manchester Race Course Co., (1901) 2 Ch. 37, in which a contractual agreement for first refusal, is the contract vendor ever decided to use a certain course for docking purposes was upheld as not too remote. 2H. J. Lewis Oyster Co. v. West, 93 Conn. 518, 107 Atl. 138 (1919); Turner v. Peacock, 153 Ga. 870, 113 S. E. 585 (1922); Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918); Winsor v. Mills, 157 Mass. 362, 32 N. E. 352 (1892); Eastman Marble Co. v. Vermont Marble Co,. 236 Mass. 138, 128 N. E. 177 (1920); Parton v. Thaw, 246 Pa. 348, 92 Atl. 312 (1914); Skeen v. Clinchfield Coal Co., 137 Va. 397, 119 S. E. 89 (1923); Starcher Brothers v. Duty, 61 W. Va. 373, 56 S. E. 524 (1907); Woodall v. Bruen, 76 W. Va. 193, 85 S. É. 170 (1915).