Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN * FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. m. BOARDMAN and ELLEN D. WILLIAMS KF8840.A5T"""""''''"""'"'^ Brief for the argument of questions aris 3 1924 020 178 749 t^l Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020178749 < By the same Author : A BRIEF FOR THE TRIAL OF CIVIL ISSUES BEFORE A JURY. 1 Vol., $3.50, delivered. It is equally important to know the exact extent and limit of a riglit, whetlier counsel intends to insist or thinks wise to let it pass. A BRIEF FOR THE TRIAL OP CRIMINAL CASES. 1 Vol., $5.75, delivered. To determine the policy of counsel, neither principles nor precedents alone suffice. In the conflict of precedents a knowledge of sound principles is of paramount importance, but to apply a principle safely attention to the technical signiflcance of the precedents is essential. A BRIEF ON THE MODES OF PROVING THE FACTS IN CIVIL OR CRIMINAL CASES. 1 Vol., $2.75, delivered. To get in our legal evidence and to keep out illegal evidence of the adversary, is the great art of trying causes ; and the policy of counsel is to choose among various modes of proof that evidence which is competent, either of right or in the discretion of the judge, prudent in the face of the ..liversary, and likely to be not only eifective now, but safe in case of appeal. BRIEF FOR THE ARGUMENT OF QUESTIONS ARISING UPON THE PLEADINGS ON THE TRIAL OP ISSUES OF LAW OR FACT IN CIVIL ACTIONS AT LAW, IN EQUITY, AND UNDER THE NEW PROCEDURE. By AUSTIN ^BOTT, OF THE NEW YORK BAR. The pleadings now more frequently than ever before determine the fate of the cause. Technicalities have lost importance ; and the just principle of fair notice to counsel and court has gained control, and calls for free reasoning in view of the results of forensic and judicial experience. ■HEW YORK : THE DIOSSY LAW BOOK COMPANY, |Jitblt0l)£ra. 1891. Entered according to Act of Congress, in the year 1891, By Austin Abbott, In the OiHce of the Librarian of Congress, at Washington. ROBEBT DRTTUHOHD, EUotrotyper and Printer, Ml & 140 Pearl St, New York, PREFACE. This volume is the first in plan and place, though not the first in publica tion, of the series of Brief Books with which I have been endeavoring to make the path of the practitioner in American courts more plain. This object is worthy of all the powers of all who can aid it. Our communities need and want far more professional service than they actually employ; and the two things which chiefly deter them from employing more professional assistance are, the inability of the appellate courts to dispose of all the business brought before them, and the lamentable frequency of mistrials in the courts of first instance. Whatever is done to reduce the number of mistrials below, at once diminishes the discouraging and deterrent effect which such experiences have upon clients, and diminishes the number of appeals to crowd the calendars of the courts of last resort. I have great satisfaction in the indications I have received that this effort to elucidate the most frequently contested technical questions has aided counsel and the courts in disposing fairly of questions of procedure, and in getting readily at those worthy contests on the merits of the cause which afford the noblest field for the skill of attorney and counsel, and the real opportunities of distinction for the judge. The present volume is larger than the others of the series, chiefly because it includes two distinct aspects of pleading. Demurrer, and Trial upon the Evi- dence. I should have presented them separately but for the fact that the princi- pal questions discussed on demurrer — viz., the sufficiency of the allegations to constitute a cause of action or defence, and the jurisdiction of the subject of ac- tion — are discussed also at the trial, and determined there on the same general principles as on demurrer, subject to such modification only as fairly results from holding that he who takes issue and goes to trial thereby accepts a merely uncertain pleading in the sense most favorable to its sufficiency for purposes of trial. Therefore if the rules on Demurrer were in a separate volume, an ade- quate treatment of the rules applicable at trial would require the repetition of a large part of them in both volumes. By treating them together, much repe- tition is saved, and the reader, using the volume for either purpose, has at hand the cognate rules and authorities established in respect to the other. They have, however, been separated in statement, so as to make easy the necessary discrimination where there is any ground for refusing to allow the rules on demurrer to be applied at the trial of issues of fact, or vice versa. For the like reason, the rules applied at different stages of the trial of issues of fact have been separately stated, for every practitioner of much ex- perience knows the disappointment of relying too far on a rule that holds good at the outset of the trial, but not at its close. A pleading is at once a notice to the adversary of what he must prepare to meet ; a rule of order by which the court may restrain the latitude of conten- iii IT PREFACE. tion at the trial ; and.'after judgment, a record of justice done -whieli the court, may enforce and compel the parties to respect. The rules applicable on demurrer have grown up chiefly in view of the- first of these requirements, and turn on the questions, Do the pleadings present a fit question for litigation? and, Do tho incidents of parties, jurisdiction, etc., make this a fit occasion? The rules applicable at the opening of a trial of issues of fact, before going into evidence, assume that the present is a fit occasion, btit leave open the ques- tions whether the pleadings present a question within the jurisdiction of this court, and are all indispensable parties before the court; and may introduce the further questions, What mode of trial do the contents of these pleadings call for, and in what order shall the parties and issues be heard? The opening by counsel, and the resulting reception of evidence, introduce such modification of this aspect of the case as is required by the practical con- struction thus actually put by the parties in the presence of the court upon the language in which they have framed the issue. The court still holds them to questions within the general scope of the- pleadings, but disregards technical objections which the objector by his own course has already disregarded. The course of the trial, proceeding on this relaxation of the original rules, frequently obscures the linos which strict adherence to the pleadings might have preserved; and when the time for submission of the cause arrives, the question whether each party gave his adversary fair notice of the question which they have actually tried has gone by, for each has taken his part in try- ing it; and the time for applying the rules of order as to the method of trial is also gone; while the question what sort of judgment can the court properly render and perpetuate on its record, and enforce by its process, on the foot of these pleadings, comes into prominence. Attention to these distinctions will at once explain the order of treatment I have pursued, which is distinctly shown in the following table of contents, and will enable the reader safely to judge how far the rules and authorities stated in one division are applicable by analogy in the stage of the proceed- ings treated by another division. As in the previous volumes of this scries, I have not sought to state all the cases, nor all the peculiarities of local statutory rules. My aim has been, looking at the actual practice of the courts as we see it in operation, to state the existing rules of general usefulness, and to support them with an adequate selection of authorities from all jurisdictions, and to guard them with a suflicient indication of any reasonable conflict of opinion now existing. It will be at once seen how useful is the light which the substantial rules of common-law pleading, equity pleading, and code pleading throw upon each other, and also that which the decisions in various states throw upon char- acteristic provisions of the statutes of other states. I cannot hope that every proposition which I have stated here -will be found correct, but my aim has been in settling the terms of each proposition, to state nothing positively un- less clear that it correctly represents the present practice of the courts of my own State, or of the Federal courts sitting in it, and useful also in the other- States generally, and to exclude, or to mention in the notes, that which on careful consideration appears to be doubtful. Austin Abbott, 71 Broadway, New Tobk, May, 1891. TABLE OF CONTENTS. DEMURRER. I. THE FORM OF DEDIURRER IN GENERAL. SEO. PAGE. 1. Statutory grounds exclusive 2 2. Precise language of statute not essen- tial S 8. — intelligible indication enough 3 4. Omission to assign the right ground.. 4 5. Wrong speciScatiou under right ground 4 -€. Creneral and special demurrers 5 7. Stipulation cannot aroid statute 7 S, Several specifications, part only being good 7 EEC. PAGE. 9. Inconsistent objections 7 10. Speaking demurrer 8 11. Objections on face of pleading alone noticed 9 12. — facts appearipg by the process 10 13. Pacts necessarily implied by the ex- istence of the pleadings 11 14. Joint demurrer 18 15. Verification not ■ required 13 16. Informality disregarded 13 II. RULES TURNING ON WHAT ARE THE PLEADINGS DEMURRED TO. SEC. PAGE. 17. The copy served controls 33 18. Origtual not considered after amend- ment 14 19. Slip in addressing 14 20. Decision on original 15 21. One count or defence not aided by another 15 S2. Qeneral allegation applicable to all of several divisions 18 SBC. PAGE. 23. Several causes of action or defences, and demurrer to the whole 18 24. Demurrer to part of commingled state- ment 80 25. Effect of answering pending de- murrer 20 26. Amending, 21 in. WHAT LAW GOVERNS IN THE UNITED STATES COURTS. SEC. PAGE. I 27. State practice in U. S. Court.— Gen- eral rule 21 1 28. — " as near as may be." SEC. PAGE. 29. Statutory action given by common- law name 24 30. Use and form of demurrer m 31. Time of hearing 25 rv. WHAT KIND OF ALLEGATIONS ARE ADMITTED BY DEMURRERS. PAGE. SEC. 82. Immaterial allegation 26 83. Gteneral allegation and inconsistent specific allegations 26 34. Conclusions of fact which the details do not sustain 27 95. Factnot alleged 27 PAGE. 36. Fact judicially noticed 28 37. Prediction 28 38. Impossible fact 29 39. Damages 29 40. Conclusions of law 29 41. Construction of writing 81 V. VI TABLE OF CONTENTS. V. GENERAIi RULES (APPIilCABLE ON DESIURRER) AS TO THE INTERPRETATION OP ALLEGATIONS. SEC. PAGE. 42. Liberal construction of pleadings 31 43. C!ommon usages of speech 38 44. Tile wliole of what is demurred to, considered 38 45. Inconsistency 89 46. Alternative or equivocal allegation. . . 40 47. Description as an allegation 41 48. Clerical error. 42 SBC. PAOB. 49. Grammatical ambiguity 44 50. Fact necessarily implied 45 51 . Fact not necessarily implied 47 52. Fact presumed by law from what is alleged 47 53. Presumption of continuance of tact. . 50' 54. Legal fiction 61 55. Matters judicially noticed 52 VI. GENERAL RULES (APPLICABLE ON DEMURRER) A& TO THE FRAME AND SUFFICIENCY OF ALLEGATIONS. SEC. PAGE. 56. Directness of allegation S3 67. — tecbniceil words not necessary 54 58. — information and belief 65 59. — recital— " whereas " 67 60. — videUcet 58 61. Objection to mode of statement, not available 58 62. Generality 58 SEC. PAGE. 63. General limited by specific allegations. 59^ 64. General averment of negative 59 65. Indeflniteness and uncertainty 59 66. — sometimes fatal 61 67. Omission of formal allegation re- quired by rule of court 68' 68. Mixed question of law and fact 62- Vn. DEMURRER FOR INSUFFICIENCY. SEC. PAGE. 1. Form of Assigning Ground. 69. Kight to raise any objection to cause of action 63 70. Equivalent to want of equity 64 71. Specification of defect 64 2. Objections Relating to Par- ties. 72. Want of capacity to sue 64 73. Not the proper plaintiff. 65 74. — state practice in tlnited States Court 66 75. Detect of parties plaintiff 66 76. Improper joinder, —of plaintiffs 67 77. — application of the rule to husband and wife 68 78. —form of assigning ground 69 79. —of defendants; insufSciency against one demurring 70 80. insufiSciency as against co-de- fendant not demurring 71 81. Defect of parties defendant 71 S. Objections Involving the Form of the Pleading Demurred to. 82. Fact common to several causes of ac- tion or defences 72 8S. Demurrer, without discrimination, to commingled statement 73 SEC. PAGE. 84. — with discrimination 74 85. Improper division of a single cause of action or defence 74 86. Separate counts for same recovery... 75 87. Separate counts presumed to refer to separate transactions 76 88. Verification lacking 76 4. Objections Touching the Na- ture or Substance of the Cause of Action or Relief. A. NATURE OF CLAIM. 89. Theory of case need not be stated ... 78 90. General rule for sustaining complaint against demurrer 78 91. Informal pleading 78 92 Statutory change of burden of proof. 79 93. Penal actions 80 94. Actions without precedent 80 95. Allegations stating insufilcient grounds with other and sufScient grounds 81 96. Allegations involving mistake as to the law 82 97. Immaterial allegations not regarded.. 83 98. Variousgroundsfor same recovery.. 84 99. Alternative grounds 85 100. Alternative version and relief not de- murrable 87 101. — by trustee of a special trust 89 TABLE OF CONTENTS. Vll SBC. PAGE. B. LEGAL OR EQUITABLE CAUSE. 102. Jurisdiction 90 103. Equitable title 90 104. Action for money or chattel 91 C. ACCOUNTING. 105. Mutual accounts 92 106. Existence of fiduciary relation, or necessity for discovery 94 107. — Remedy at law 99 108. Royalty contracts 100 109. Facts showing ground of equitable cognizance to be specially alleged. 101 D. NO ADEQUATE REMEDY AT LAW. 110. Form of demurrer. 101 111. Showing want of adequate remedy. .. 101 112. — in case of several groimds o£ relief. 104 113. Assignee 104 114. What is a " remedy at law " 104 115. Statutory remedy in equity 105 116. What is a " plain, adequate, and com- plete '' remedy 106 117. " Jurisdiction clause " directly alleg- ing want of remedy 109 118. Estoppel against this objection 110 E. CONTRACT OR TORT. 119. Uncertainty as ground of demurrer.. Ill F. DEMURRER TO RELIEF. 120. General rule 112 121. Relief against demurrant 115 122. — against codefendant 115 123. Alternative relief 115 5, Objection that the Action is Premature, or that a Defence is Disclosed. 124. Prematurity not presumed 116 165. Violation of positive prohibition 118 J£6. Enough that any relief is due at time of argument 119 127. Disclosure of defence 119 128. — with avoidance 120 6. Particular Subjects of Alle- gation (Alphabetically Ar- ranged.) Abbreviations. 129. General rule 122 Acceptance. 130. Acceptance of bill implies writing — 123 Acconnt. 131. General form of pleading indebted- ness on account 124 132. "Justly due" 125 133. Account or particulars coupled with pleading 125 138. 139. 140. 141. 142. 143. 144. 145. 147. 148. 149. 160. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. Ad-rerse Claim. Formal allegation, not essential 126 Insufflcient if tacts alleged show validity 126 Agency. Agency an allegation of fact 127 Act by agent alleged as that of prin- cipal 128 Alternative Charges. Embarrassing ambiguity 130 Amount. Evasive or argumentativa allegation.. 130 Appearance. An issuable allegation 131 Assignment. Mode 131 Consideration 132 Time ,. 132 Leave 132 Principal and accessory obligation.... 133. Audit. Audit, demand, presentation, or no- tice, etc. . required by statute must be alleged 133^ Time of presentation 135* Autborlty, Statutory authority 135 Relation of husband and wife 135 Revocation 136 BUI of Particulars. Not considered on demurrer 136 Bona Fide FiZrchaser. Conclusion of law 137 By-Iiaws. Must be pleaded 187 Cause and Effect. Relation between wrong and injury must be sworn 138 Collusion. Must be specially stated 138 Compulsion. General allegation 139 Concealment. Effect of allegation 139 Confederacy. Tort committed through agent or confederate 140 Consent. General allegation i — 140 Conspiracy. Damage necessary 141 Contracts. A. The Making of the. Contract. Implied contract— facts raising im- plied promise 141 Vlll TABLE OF CONTENTS. 162 168. 160, 170. PAGE. Coutracta—centinued. Express contract,— technical words not necessary 143 163. — Mutuality. 144 164. — Execution and delivery 144 165. —Seal 147 166. — Statute of Frauds, where contract appears to be oral 148 167. where it does not appear to be oral 150 — Agency in making 150 ; contract not purporting to be that of the party 151 appearing on face of the con- tract 153 B. Terms. 171. Legal effect 152 173. — Term omitted implied by law 153 C. Consideration. 173. Necessity of alleging 153 174. Formal woi-ds not necessary 155 175. Executed consideration 156 176. Unconscionable consideration 157 D. Extrinsic Facts, 177. Oral to vary writing. . . 157 178. Usage or custom to aid 158 E. Performance of Conditions. 179. Performance by plaintiff 159 180. — exception or proviso 160 181. Conditions not alleged 161 182. Form of allegation at common law. . . 161 183. Statutes sanctioning allegation that he duly performed 162 184. — what are "' conditions," within the statute 165 185. — Form of allegation under the stat- ute 167 186. Performance by acts of third persons. 168 187. Acceptance of work 169 188. Mutual and dependent conditions 169 189. Conditions subsequent 172 190. Excuses for non performance of con- ditions 173 F. Breach. n91 Necessity of allegation, on money contracts 174 ; .; — in other actions 175 1 i. General allegation 175 1 U. Allegation in terms of contract 176 135. Exception or proviso 177 196. Several parties indebted 177 197. Disabling one's self: Anticipatory re- •fusal 179 G. Insti'uments for the Payment of Money Only. 198. What are within the statute 180 199. Validity, execution, ownership, and conditions 182 200. Form of allegation 18.3 201. Language 183 SEC. PAOE. Corporations. 203. Necessity of alleging incorporation... 184 204. General allegation of organization ... 185 205. Power to act 185 206. Private or foreign corporation 186 207. Modeofact 186 Damages. 208. Allegation showing,— by breach of contract 186 209. — bytort 189 210. Distinction between general and spe- cial damages 190 ZW. Ad damnum; demand of judgment. . 191 212. Demanding too much 193 Sate. 213. Dates, if essential to the cause of ac- tion 192 214. Form of allegation 193 215. Several events 194 216. Continuance of fact or right 194 217. On or about 195 Delay. 218. Delay, laches, etc 195 Delivery. 219. Delivery and acceptance 198 Demand. 220. Necessity— Promise to pay, naming time or place 197 221. to pay on demand 197 323. Form of allegation 198 223. Demand implied from other allega- tions 199 Descent. ^4. Effect of allegation 199 Detention. 225. Wrongfidness 199 Disclaimer. 225a. Sufficiency 200 Documents. A. Documents Pleaded in the Absence of Statutory Regulation. 226. Necessity of copy or substance 201 227. Pleading legal effect 202 328. Copy embodied in the pleading 302 229. Copy annexed and referred to 203 330. Language 205 231. Ambiguities 206 332. Copy accompanied by allegation of legal effect; inconsistency between pleading and exhibit 206 233. Demurrer not aided by original 308 B. Documents Furnished under Statutes or Rules of Court requiring Exhibits to be Annexed or Filed. 334. What deemed a. written "instru- ment " 208 335. — subscription paper 309 TABLE OF CONTENTS. IX 237. 240, 841. 242. 544. 345. 346. 249. 250. 251. 252. 253. 254. 257. 258. PA»£, Socuments— con^muecZ. What is ■' foundation " of the action.. 209 in action to construe, reform, or cancel 212 Documents collaterally invol ved . — ctions on contract 213 action of tort 214 muniments of tide 314 Exhibit not rallied for by the statute. . 215 False reference to filing 316 Indorsements.— Ownership of chose in action 216 Demurrer for failure to furnish ex- hibit 217 Copy in body of pleading enough. ... 217 Exhibit which is mere evidence not noticed on demurrer 218 Contract not shown to be in writing. . 220 Beference to exhibit; and identifying. 230 Appropriate words of reference 221 — Several counts 2'21 What omissions in pleading supplied by exhibit 233 Excuses for not furnishing exhibit 225 Amended pleading 336 State practice in U. S. Court 336 " Duly." An issuable allegation 226 Duty. A mere conclusion 338 ]];ascment. Ground of right 329 E^lection. Under optional contract 330 Foreign Laiv. General allegation . . .' 230 Laws of sister State 231 Insanity. General allegation 239 Insolvency. Insolvency a fact, but not always enough 240 Intent. Geueral allegation 340 JTudgments. General allegation enough 341 — as to Court of sister State 343 Special jurisdiction in sister State 243 Unit«d States Court practice,— in court of first instance 243 — on error or appeal 243 Allegation of remaining in force 244 Jurisdiction of original cause of ac- tion 344 Statutoiy short allegation, — '* duly given or made" 345 — judgment, etc., of Court of United States or of sister State 248 liaches. 6. Ground of demurrer . . . 349 Former Recovery. Disclosed as a bar 264. 265. 267. 270. 271. 278. 278. Fraud. General allegation not enough 233 ADegation of evidence 233 What details necessary 233 Intent 233 Belr. Geueral allegation 234 Illegality. Disclosure of illegality on pleader's part 234 Form of allegation of illegality 235 Eeference to statute 236 Foreign Law 236 Question left in doubt 337 Inability. Mere conclusion 337 Indebtedness. "IndebU^d," or " due," as a conclu- sion 3i>l licave to Sue. 387. What must be alleged 249 288. Form of allegation 2B1 I^iability. 289. A conclusion of law 262 Lilen. 290. A conclusion of law 252 Iilmltatfons. 291. Limitation by statute, when avail- able on demurrer 353 maintaining. 393 Meaning of allegation 253 Married Women. 293. Sued as sole 254 misnomer. 294. Demurrer for misnomer 254 Mistake. 295. General allegation 254 395a. MutuaUty 354 Name. 296. Contract, etc., in wrong name 255 297. Name unlmown 256 298. Initial 256 299. Introductory description of plaintiffs. 256 300. Repeating names of parties 357 301. Title and body of pleading 257 302. Singular and plural 258 Necessity. 303. Allegation of fact 258 Negligence. 304. General allegation 259 305. Form of allegation 260 306. Agency 260 807. Indirect allegation 261 308. Contributory negligence 261 TABLE OF CONTENTS. SEC. PAGE. Non-payment. 309. By whom 262 Notice. 310. Burden to allege 262 3U. aeneral allegation 263 312. Statutory requirement 263 313. Posting notices 263 314. Reasonable notice 263 315. Denial of notice 264 316. Knowledgs.— Facts implying notice . . 264 Nuisance. 317. General rule 265 Offer. To whom and where 265 OfEer to do equity 266 Ordinances. Howpleaded 267 Onrnersblp. General allegation 268 — after ownership shown in third person 269 Evidence of title 269 Defeasible ownership 270 Alternative source of title 270 Ownership imports capacity to own . . 270 Continuance presumed 271 318. 319. 321 827. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. Fartnersblp. , General allegation 271 Payment. Payment otherwise than in money. . . 271 Permission. ImpUes knowledge and consent. 272 Ratification. An issuable fact 272 Reasonable Time. Allegation necessary 272 An issuable fact 273 Meaningof 273 Regularity. Details need not be pleaded 273 Repugnant Allegations. Inconsistency as ground of demurrer. 274 Rules of Court. Judicial notice 275 Seizin. General allegation 275 BBC. PAGE. Service. 339. General allegation 276 Statutes. 340. Public statute,— in other than penal actions - 276 341. Action for penalty for an offence 278 342: New right or remedy given by statute. 279 343. Showing conformity to statute 281 344. Allegation of compUance with statu- tory condition 282 345. Statutory condition in statutory ac- tion 283 346. Allegation of interpretation or effect. 284 347. Pleadmg in the words of the statute. . 285 348. Private statutes;— common law rule.. 286 349. — statutory short form 286 350. — effect of statutory provision 289 351. Statutes of other States 289 Succession. 852. General allegation 289 Tender. 853. Interest 289 Tbereupon. 354. " Thereupon " does not exclude other causes 290 Time. 355. Implied in allegations without dates. . 290 Title. 356. General allegation 201 357. Derivation of title; — with or without general allegation 293 358. Title under statute 293 359. "Entitled;" a mere conclusion 294 Torts. 360. Wilfulness sometimes essential 294 361. " Wilful," an allegation of fact 295 362. "Wrongful" and "imlawful" mere conclusions 295 363. Malice 296 Trustees. 364. PreUminary request to trustee, etc., tosue 297 CTsage. 365. Necessity of pleading 297 366. Form of allegation 298 Will. 367. Allegation of making 298 VIII. DEMURRER FOR WANT OF JURISDICTION. SEC. PAQE. 1. General Principles. 368. Meaning of " jurisdiction " 300 369. Form of assignmg ground 300 370. What is "appearing on the face of the complaint " 300 371. Statutory prohibition 301 SEC. 372. New York Superior City Courts . 373. Several causes of action 2. PAOE. ... 3C2 Jurisdiction of Subject-mat- ter. Place where cause of action arose . . . 302 TABLE OF CONTENTS. XI SEC. PAGE. 8. Federal Question. 375. When sufficiently shown 303 4. As Affected by the Amount Involved. 376. Apparent want of jurisdiction 303 377. Minimum amount. — " Value " in ac- tions other than for money de- mand, etc 304 378. Minimum amount,— actions for money demand 306 379. Combining several causes of action between same parties 307 380. Combining joint or several interests of different claimants 308 381. Form of allegation 310 382. Maximum amount as a limit 310 SEC. PAGE. 5. Citizenship Cases in Federal Courts. 383. Demurrer lies 311 884. Direct allegation 312 385. — as to corporation 313 386. Form of allegation 313 387. Description in title or in introduction. 314 388. Time of citizenship 314 889. Suit by assignee 315 390. Citizenship in Federal Court, not a personal privilege 316 391. Ranging parties to affect jurisdiction. 317 6. As Affected by Defendant's Residence. 392. Defendant sued out of his district ... 318 893. Defendant's inhabitanoe 318 394. Foreign corporation 819 395. No waiver by qualified appearance. . . 319 IX. DEMURRER FOR WANT OF CAPACITY. SEO. PAGE. 396. Objection must be apparent 320 397. Capacity of natural person presumed. 321 398. Use of name of guardian, committee, etc 321 399. Allegation of capacity not conclusive. 332 400. Allegation of individual cause of ac- SEC. PAGE. tion by plaintiff described as rep- resentative 322 401. Defect of plaintiff's allegation of ap- pointment 323 402. Omission to designate in caption 323 403. Subsequent reference to capacity 324 X. DEMURRER FOR MISJOINDER. SEC PAGE. 1. General Rules. 404. State practice in tr. S. Court 326 405. Specifying objection 326 2. Misjoinder of Causes of Ac- tion. A. Form of the Demurrer. 406. Goes to the whole pleading 327 407. Joint or separate 327 B. Objections for Misjoinder of Causes of Ac- tion as affected by the Question, What is a Single Cause of Action? 408. Separate statements of elements of a single cause of action 327 409. Commingled statement 328 410. Several grounds for a single recoveiy. 329 411. Several demands for rehef on same facts 330 412. Incidental demands 333 413. Inconsistent relief 334 414. Aggravation, though such as might be a cause of action by itself 334 C. Objectionfi to Misjoinder of Causes of Ac- tion turning on the Nature of the Claims. 415. Contract and tort 335 416. — electing between contract and tort. 338 SEC. PAGE. 417. Warranty and false representations.. 339 418. Express and implied contract 340 419. Covenant and trespass 341 420. Injuries to person, character, and property 341 421. Common-law hability, and penalty, or statutory liability 343 432. Legal and equitable 345 423. Action to recover debt and enforce hen 347 424. Incidential relief 347 425. Same transaction or subject 348 426. Place and mode of trial 850 437. Inconsistency 350 428. Objection to jurisdiction only 350 429. Avoiding by reason of insufficiency of one cause 351 I>. Objections to Misjoinder of Causes of Ac- tion turning on the Involving of Claims affecting Different Parties (including Multifariousness). 430. Several parties,— at common law 361 431. — under New Procedure 3.'>2 438. Equitable action — coplaintiffs 366 433. Codefeudautsin Equity — Multifarious- ness 357 xu TABLE OF CONTENTS, SEC. PAOE. ISUsiolnAer— continued. 434. — Codefendants under the New Pro- cedure 368 435. Different capacities S64 436. Allegation of two capacities, and cause of action la one 366 SKO. PAGE. 3. Misjoinder of Parties. 438. Presence of improper party 366 439. Coplaintiffs not jointly interested 367 440. Separate relief 367 441. Persons severally liable on the same instrument 86& Xn. DEMURRER FOR DEFECT OF PARTIES. SEC. PAOE. 442. Form of demurrer 369 443. What is a defect 370 444. Who may demur,— for absence of merely "necessary " party 370 SEC. PAGE'. 445. — for absence of "indispensable" party 371 446. Excuse for non- joinder 37^ 447. Presumption that needed party is liv- ing 37a XIII. DEMURRER FOR PENDENCV OF A FORMER SUIT. SEC. PAGE. I SEC PAGE. 448. When demurrer lies 373 I 449. General rule as to double vexation 373 XIV. DEMURRER TO ANSWER. 450. 451. 452. 458. 454. 455. 456. 467. 458. 460. 461. 1. General Principles. Single answer to several counts, etc. 375 Several defences in one answer 3T6 Effect of bm of particulars 376 Document required by statute to be filed, etc 877 The same — " Foundatioii of defence. ". 378 The same,— defendant's use of plain- tiff's exhibit 378 Failure to meet plaintiff's avoidance of anticipated defence 379 Equitable defences 379 Equitable bar without affirmative reUef. 380 Defences in U. S. Courts on equitable grounds 381 Inconsistency not ground of de- murrer 381 Defendant may attack declaration or complaint 384 — aider of complaint on demurrer to answer. 386 2. Demurrer to Denials (includ- ing Facts Provable under Gen- eral Issue. 463. Mere denials 387 464. Statutes requiring sworn denial 388 465. Facts provable under the general issue 389 SEC. PAGE. 3. Demurrer to New Matter Con- sidered as Constituting a Mere Defence. 466. Justification must state facts in detail. 391 467. Partial defences— purporting to meet the whole cause of action 391 468. The same— purporting to meet only a part 398 469. Facts constituting mitigation neces- sary 393 470. Answer of facts after suit not de- murrable 393 471. Mere defence not demurrable because of unnecessary demand of aflSrma- tive relief 393 472. Defensive answer aided by complaint. 394 4. Demurrer to New Matter Pleaded as Constituting a Counterclaim or Ground of AfiSrmative Relief. 473. Objection to sufficiency 395 474. Objections to availability 395 475. — in actions for specific reUet, etc 395 476. — in action for money demand.— Coimterclaim of specific relief 396 477. — contract and tort, etc 397 478. — double-face cause of action 399 479. — counterclaim as on contract by waiving tort 399 480. — allegation of " same transaction "400 481. Time of accrual or vesting 400 TABLE OF CONTENTS. Xlil SEC. PAGE. Dem. to Conntercl,— continued. 482. Omission to ask affirmative relief 400 483. Want of jurisdiction 401 484. Counterclaim not aided by complaint. 401 S. Demurrer by a Codefendant. 485. Defendant cannot demur to codefend- ant'sanswer 403 BEC. 486. 487. 488. 489. 490. XV. DEmURRER TO REPLY. PAGE. SBO. PAGE. Insufficiency 403 491. Counterclaim against counterclaim.. 406 Bad denial 404 , 492. Defendant may attack declaration or Denial coupled with avoidance 404| complaint 408 Departure 404 : 493. Demrarer to unauthorized reply 408 — allegations in support of com- pUiint, but without variance, not a departure 406 494. Plaintiff may attack plea or answer. . 409 XVI. DEmURRER TO SUPPLEMENTAL PLEADINGS. &iC. PAGE. SEC. PAGE. 1. Supplemental Complaint. 2. To Supplemental Ansvrer. 495. Facts which occurred before suit com- menced 410 496. v'acts subsequent but essential to cause of action 411 497. Curing defect of parties 412 498. FACts merely additional 413 499. Unnecessary rehearsal o£ original 413 500. Demurrer lies 413 501. Defence arising after suit, in legal ac- tion 414 502. — in equitable action 415 503. Right of new party to am-iwer 417 504. Leave to plead need not be alleged. . . 417 505. Demand of relief 418 ISSUES OF FACT. I. GE::SERAL RULES FOR DEFINING THE LIMITS OF THE ISSUE. 1. Duty of the Court. 506. Limiis of the issue to be decided by tbeCourt 419 507. Eetusal to try immaterial issue 420 3. What System of Law Applies. 508. Cause removed 421 509. State practice in U. S. Court 421 510. Some Equity Rules same as at Law . . 422 3. What Pleadings Constitute the Issue. 511. Question as to service 422 512. Question a.=> to filing 423 513. Withdrawal of part of pleading 423 514. Amended supersedes original 423 515. — unless both aro answered as one. .. 424 516. Omission to designate 424 517. Omission to amend responsive plead- ing 424 518. Delay to respond 425 .519. Demurrer overruled 425 520. Demurrer sustained 427 SEC. 521. 522. 523. 524. 525. 528. 527. 528. 529. 630. 531. 532. 533. 534. PAGE. Judgment on plea in abatement 438 Substitute for lost pleading 42S Substituted party 429 Stipulations, as to character of plead- ing 429 — for trial on the merits 429 Stipulation modifying the issue 430 Stipulation repugnant to the pleading. 430 Power of counsel 431 Executory stipulation for amend- ment 431 Amending to get rid of conce.«sion. . . 432 Denial lets in different version 4i3 Striking out 435 What Kind of Allegations Invite an Issue. Conclusion of law 435 What is a fact, and what a conclu- sion 437 Treating insufficient allegations as issuable 437 Material allegations 43T XIV TABLE OF CONTENTS. Inviting lasne— continued. 637. By virtue thereof : "virtute oujus ".. 438 538. Hypothetical allegation 439 539. Allegation of contents of document. . 440 540. Allegation of amount or value 440 541. Express admission 446 648. Approximate amount, etc 446 543. Several grounds for one recovery 446 544. Ground of recovery or defence im- plied but not alleged 449 545. Motive of pleader cannot countervail pleading 450 546. Formal allegations required by rule of court 451 647. Presumption inconsistent with allega- tions 452 548. Inconsistent protestation does not prejudice 452 549. Denial of anticipated defence does not change burden of proof 453 5. Express Admissions. 550. Interpretation of express admission.. 453 551. Admission in notice of special matter. 455 552. of similar instrument 455 553. Admission by tender and payment into Court 456 654. Denial and tender 456 555. Admission qualified in substance 457 556. Admission coupled with justification or avoidance 458 557. Protestation 469 568. Admission of conclusion of law 459 569. Admission denied 460 560. Disclaimer ;— its requisites 461 6. Admissions by not Denying. 661. Immaterial allegation 462 562. Defect of essential allegation 463 663. Denial of mere conclusion of law 464 564. — of conclusion of law, without deny- ing facts 466 565. Main fact, tmd evidentiary facts 466 566. — of allegation of mere evidence 466 567. Avoidance of anticipated defence ad- mitted by pleading the defence. . . 867 568. — of ground of conclusive presump- tion 469 569. Infant's answer 470 570. Tacit equivalent to express admission. 470 7. Form of Denial ; and Admis- sions by Bad Denial. 571. The words of denial 472 572. " Says he denies " 478 578. Denial of legal conclusion 474 574. Denial of "each and every allega- tion " 474 575. Denial of " material " allegations 475 576. — general denial when an admission, 475 677. — under statutes not allowing general doaial 476 SEC. PAGE. nenial— continued. 578. Specific denial, what is ^''''' 679. Unspecific denial 4'^'"' 580. Disregarding lack of speciflcness ... 478 581. Denial of all allegations on a particu- lar sub.iect 478 582. Sweeping denial, with exception as to what is otherwise answered 479 583. with exception of specified folios. 481 584. Denial by reference to numbered para- graphs 482 585, Denial of specific sum 482 686. Denial involvmg non-essential circum- stances—Negative pregnant 483 587. Negative pregnant 486 688. Evasive denial — ^not covering the alle- gation , 487 589. Addition of hypothetical or contin- gent avoidance 489 590. Conjunctive denial of conjunction. — Negative pregnant 489 591. Disjunctive denial 491 592. Surplusage in denial 491 593. Refusal to admit 491 594. Mere call for proof 492 595. Submission to court 492 596. Admission of some such a contract admits correctness 492 597. Denial of correctness of copy 493 598. Craving leave to refer 493 599. Direct allegation to contrary 494 600. Different version not a denial 495 601. Giving different version does not change burden of proof 496 602. Different version coupled with denial. 497 60.3. Denial upon information and belief.. 497 604. Statecourt practice in Federal Court. 499 605. Denial of knowledge or information sufficient, etc 499 606. — except from specified sources 501 607. — and therefore denies the same ... 501 608. Denial in alternative in respect to knowledge, etc 601 609. Matters presumptively within the pleader's knowledge 602 610. Jurisdiction— General denial of citi- zenship 503 611. — denial of citizenship; under New Procedure 504 612. — - form of denial of citizenship 504 613. — time of citizenship 505 614. Burden of proof as to jurisdiction , . . 605 8. Admissions, . and Shifting' the Burden of Proof by Unverified Denial. 615. Nature of the statutes requiring sworn denials of written instruments and particular facts, etc 507 616. Necessary allegation to call for sworn denial 522 TABLE OF COKTENTS. XV «17. 618. 619. 620. 621. 622. 623. 624. 626. 627. 628. 6-29. ■630. 631. «32. 683. 634. «35. 637. 638. 640. 641. 10 €44. 645. PAGE. Admissions— continued. Execution: delivery: seal 524 •Evasive or loose denial 525 AfSdavit or pleading 526 Who may verify 527 Information and belief 527 Translation 52S Signature by mark 629 — abbreviation in name; misnomer; and change of name 539 — execution in firm name 529 — authority of agent 531 — authority of corporate offlcers 532 Question of ownership 533 Instrument executed by several 533 Not a partner 534 Instruments executed by third person — Subscribing witness 535 Revocation of authority 535 Lost instrument 536 Plaintiff not the real party in interest . 530 Other issues 536 Amending 537 Statutory Traverse of An- STrers and Replies. New matter 538 Denial not; equivalent to an affirma- tive contrary allegation 538 Denial in form of new matter 538 Avoidance in form of counterclaim.. 539 Counterclaim not properly character- ized iu pleading it 539 , Inconsistency in a Pleading. Inconsistent allegations in same count or defence 541 Inconsistent allegations in separate cause of action 542 What is inconsistency 543 Confession by avoidance 540 — estoppel 648 S£0. PAGE. Inconsistency— continueij. 647. Denial, and separate admission- plaintiff must give proof 549 648. Defences inconsistent in fact 550 649. Amending to cure inconsistency 551 11. Aider. 650. Complaint aided by answer: answer, by reply 551 651. Whole allegation or denial 554 652. Aider by Immaterial or non-essential ( allegation 554 653. — hy specific denial 555 654. Issues on separate causes of action. .. 556 655. Denial of Plaintiff's avoidance of de- fence without pleading the de- fence 557 656. Complaint aided by reply 557 12. Departure. 657. Refusal to try departure 658 658. Reply to counterclaim 658 13. Waiver by Pleading or not Pleading. 659. Objection to be taken by demurrer or answer 558 660. Waiver of objection to counterclaim. 561 661. Abatement, and merits 561 14. Issues between Codefend- ants. 662. Right to prove case against a code- fendant 562 663. Relevancy of claim to subject of ac- action 663 664. Same subject-matter. . . .- 564 665. Unnecessary controversy 564 666. Necessity of notice 565 667. No responsive pleading necessary be- tween codefendants 566 668. Unsuccessful defendant 566 II. APPLICATIONS AT THE OPENING OF THE TRIAL. SEC. PAHE. 678. particular classes of cases 574 679. Citizenship cases 575 680. — Citizenship appearing in other parts of the record 575 681. — Parties collusively made or joined . 576 682. — Ranging parties to affect jurisdic- tion 576 683. Amending to defeat objection 576 684. — In United States Courts 578 2. Slotions to Dismiss for InsuiB- ciency, or for Judgment on the Pleadings. A. Dismissal for Insufficiency. 685. Defendant's motion to dismiss for in- suiHciency of complaint 579 fiEC. PAGE. 1. Objections to the Jurisdiction of the Court. 669. Several causes of action 567 670. Transitory action between non-resi- dents 567 671. Waiver— where plaintiff's pleading shows want of jurisdiction 568 672. Waiver by proceeding after object- ing 669 673. Exclusive jurisdiction of another court 670 674 Objection to service, by answer 571 675.- inferior court of local jurisdiction- Service within limits 571 676. — residence, etc 572 677. Federal question cases 572 XVI TABLE OF CONTElirTS. SEC. PAGE. motions to Dismiss— continued. 686. — Several defendants 580 687. — Answer not to be regarded 580 688. — Amendment to defeat the motion.. 581 689. — Exception to ruling 583 690. — Want of adequate remedy at law admitted 682 691. — Objections to form, etc 583 693. — Defences and counterclaims 564 693. Pleading objected to liberally con- strued 584 694. Overruling of a demurrer not conclu- sive 584 B. Judgment on the Pleadings^ 695. PlaintifE's motion 586 696. Omission of essential fact 587 697. Immaterial issue 588 698. New matter sufflcient without denial. 588 699. Denial and separate admission 588 700. Defendant's motion for judgment for admitted defence 589 701. Defendant may move that plaintiff have judgment 589 S. Motion to Compel Election. 702. Commingled or dissevered state- ment 590 SEC. PAGEV Motlon to Compel Election— cont'd- 703. Demurrable misjoinder S"! 704. Several counts for same recovery,— on contract ^^^ 705. Contract; and judgment, award, or account stated, thereon 595- 706. Conflicting versions of transaction, or views of legal effect 596' 707. —torts M"" 708. — inconsistency in tact B98' 709. False warranty, and Damages for Deceit 698 710. Legal ground, with equitable ground for same recovery 599' 711. —Common law ground; withastatu- tory ground 600' 712. — Several statutory grounds 601 713. Contract and tort 602 714. Election to withdraw count 60? 715. Formal allegation of identity 60S 716. Different measure of damages 604 717. Considerations influencing discretion of the court 604 718. Inherent authority of attorney 608' 719. Dismissal tor refusal to elect 606 '20. Inconsistent defences 606- III. RECEPTION or EVIDENCE. SEC. PAGE. 1. What Kinds of Allegations are Necessary . and Sufficient to let in Evidence. 721. State practice in U. S. Court 607 722. Excluding evidence because of insuffl- ciency of complaint , 608 723. Essential fact not alleged 609 724. Defective allegation 609 725. Uncertainty as to theory 610 726. Hypothetical or contingent allega- tion 610 727. Notice of intent'to prove 612 728. Unsupported conclusion 613 729. Clerical error 613 730. Statutory fiction or presumption 614 731. Judicial notice 614 732. Several titles to same property 615 733. Generality of allegation of matter in pleader's knowledge. 615 734. Irrelevant allegation 615 735. Relevant allegations not prejudiced by irrelevant 616 736. Changing line of proof : Alternative.. 617 737. Materiality caused by course of the trial 617 738. Duplicity not ground for exclusion. . . 618 739. Rights to costs and injunction 619 740. Counterclaim and set-off 619 741. Liberal interpretation 620 SEC. 743. 2. 743. 744. 745. 746. 747. 748. 750. 751. 758. 753. 754. 755. 756. 757. 758. PAGE- Minor objections waived by entering on evidence 630' E£Eect of Bill of Particulars. Evidence beyond bill not admissable. 6S3. Bill need not repeat what is in the pleading 624 Bill cannot enlarge or change cause of action 624 Indefiniteness 625 Several counts and one bill 637 Matter in avoidance of the adversary's case 627 Effect of variance between bill of par- ticulars and evidence 638- Voluntary bill 629' Unverified bill 629 Effect of failure to serve 630 Billot particulars as evidence 630 3. E£Fect of Admissions. Admissibility of evidence to prove admitted fact 632 4. EflEect of Denials. Denial lets m any facts contrary to allegation 632 General denial: distinguished from general issue 632 Former adjudication 634 General denial not impaired by defec- tive special defence 635 TABLE OF COKTBKTS. XVll SEC. PAGE. 6. Effect of Interlocutory De- cisions on the Pleadings. 759. Order on demurrer 635 760. Effect of motion to strike out or omis- sion to move 636 761. Allegation mutilated by striking out part 636 762. Objector wiio induced the objection- able pleading estopped 638 6. Particular Subjects of Alle- gation. (Alphabetically Ar- ranged). AbbreTlations. 763. Allegation of meaning 639 Accord and Satisfaction. 765. Must be specially pleaded 640 766. Lets in evidence of payment 640 Acconnt. 767. Effect of failure to serve copy of ac- count mentioned in pleading 640 768. Effect of serving copy 641 769. Sworn account from abroad 641 770. Disproving balance 641 Acconnt Stated. 771. Must be pleaded as suob 642 772. Effect of pleading 643 773. Evidence under general denial 643 Acooantlng. 774. Particulars of the account admissable under general allegation 643 Action Premature. 775. Necessity of pleading the objection . . 644 Adequate Remedy Existing at 776. Facts showing adequate remedy at law 645 Adverse Claim. 777. Formal allegation not always suffi- cient 645 Adverse Possession. 778. Under whom claiming 646 Agency. 779. Allegation of act let in agency or confederacy by which it was done. 646 780. — terms of agency 647 781. Denial lets in disproof of authority . . 648 Amount. 782. Indefinite allegation 649 783. Variance from allegation 649 784. Amending claim 650 SEC. PAGE. Assignment. 785. Assignment must be proved, if al- leged 651 786. Amendment setting up assignment.. 652 787. Assignment, etc., by plaintiff's as- signor before assignment to plain- tiff competent under denial 653 Association or Joint-Stock Com- pany. 788. General denial puts existence in issue. 654 Antborlty. 789. Allegation of act by agent imports his authority 654 790. Ratification 665 Bona Fide Purchaser. 791. General denial 655 By Iiatrs. 792. Pleading legal effect 656 Capacity. 793. Incapacity must be pleaded 656 Consent. 794. General allegation 657 Conspiracy. 795. May be proved though not alleged. . . 658 we. Variance 668 Contracts. 797. General allegation lets in writing 669 798. Allegation of writing may let in oral. 660 799. General allegation, and special con- tract 660 800. Agreed price: and value 6tJl 801. Allegation of execution 662 802. Contract signed by agent 663 803. Agent's authority 663 804. Agency or representative capacity. .. 663 805. Legal effect 663 806. Variance by not alleging immaterial part 664 807. Alternative contract 661 808. Modification of contract ces 809. Conditions precedent, performed 60'! 810. Breach, particulars 706 866. — allowing evidence 706 867. — admitting validity 707 868. — fraud inducting execution 708 869. Statute affecting burden of proof — Effect of unsworn denial 709 870. — Effect of sworn denial 709 871. — preliminary proof, 710 " Duly." 872. Substantial as well as formal condi- tions 711 Election. 87.3. General allegation enough 711 Entry. 874. Informal allegation 711 Estoppel. 875. Common Law Estoppel 712 876. — reversal for invalidity 713 877. — former adjudication; action pend- ing 713 878. Equitable estoppel, in aid of plaintiff. 713 879. — defendant's case 714 880. — plaintiff's avoidance of mere de- fence 715 881. Incidental fact not pleaded 715 Facts Occurring Pending tlie Ac- tion. 882. Fact essential to the case 716 882(1. Exceptional actions 717 883. What is the time of commencing ac- tion 717 884. Fractions of a day 718 885. Lapse of time or further grievance enlarging measure of recovery*" 718 TABLE OP CONTENTS. XIX SEC. PAGE. Facts Occnrlng Pending tbe Ac- tion— ctxttmued. 886. Facts modifjing or supporting a good cause o£ action 719 887. Leave to Iflle amended or supple- mental pleading not evidence of right 719 888. Amendment inserted in supplemental pleading 719 889. Waiver of objection that original is insufScient alone '20 890. Mere evidence 720 891. Facts in avoidance of prima facie defence 721 892. Kepetition of same grievance 721 893. Amending 722 Foreign Iia\(r. 894. Allegation of conclusion 722 Former Recovery. 895. Necessity of pleading 723 Fraud. 897. 900. 901. 902. 903. 904. 905. 906. 907. General allegation, not sufScient for the pleader Principal and agent Intent essential Time Knowledge of falsity The word " fraud " not necessary Evidence not to be pleaded Oral evidence to defeat written Fraud in inducing signature, etc., dis- tinguished from fraud in inducing agreement Fraud does not let in rescission, etc. . Denial of allegation of good faith Denial of concealment Plaintiff in pari delicto Fraud to rebut defence Heir. 910. Sufficient allegation to admit evi- dence Illegality. 911. Illegality on face of instrument 912. Evidence of illegality under a denial. 913. Variance as to nature of illegality 914. Illegality of counterclaim Indebtedness. 915. " Indebted " a mere conclusion Iniant. 916. General answer Insanity. 917. General allegation Interest. 918. Laches as barring interest 728 731 732 732 SEC. PAGE. Judgment.. 919. Denial 733. Jurisdiction. 920. Statutory allegation as to former judgment, etc 733 921. Want of jurisdiction of the subject. . . 734 922. — In United States Courts 734 923. — Evidence of lack of citizenship 735 Iicave to Sue. 924. Omission to obtain or allege 735 liimltatlons. 925. Form of necessary objection 736- misnomer. 926. Misnomer of a party on the record... 737 937. Oral evidence of mistake in writing. . 73S 988. Amending 739 mistake. 929. Necessary allegation 740 930. — alternative 740 931. Demand of reformation 740 933. Mistake as an avoidance though not pleaded 741 Negligence. 933. General allegation 741 934. Non-compliance with customary pre- caution 742 935. Denial of defendant's negligence 742 936. "Gross" and "wilful" negligence... 743 937. — denial 744- Nulsance. 938. Variance 744 Offer. 939. Omission of offer to do equity 745' Ordinances. 940. Must be pleaded 745 OTFnersblp. 941. General allegation 746 942. Denial 746 Partnersbip. 943. Defect o£ parties 717 944. Joint act, or fii-m act 748 945. Separate individual act 748 946. Abortive special partnership 748 947. False representation of being part- ners..: 74ff Payment. 948. Medium 749' 949. Payment by third person 750' 950. Set-off, accord, etc 750 951. Denial 750' 952. Paymenc down or in advance 752' 953. Statutory presumption, or bar 752' sx TABLE OF CONTENTS. SEC. PAOB. JBeal Party In Interest. 034. Facts must be pleaded 753 Vender. "955. Necessity and effect of alleging 753 Title. 956. General allegation 754 957. Indirect allegation 754 958. Denial in general language 755 959. Adverse possession 756 960. Amending 756 961. Failure to prove 756 Tort. 963. Informal allegation of malice 757 963. Allegation of malice surplusage 757 964. Justification inadmissible xmder a denial 757 SBC. ^^°^- 7. Variance; an Amending to Iiet in Evidence or Conform to Proof. 965. Variance a question for Court 759 966. Immaterial variance disregarded or cured by amending 759 967. Proof of surprise 763 968. Previous knowledge does not dis- prove surprise 763 969. Previous knowledge ground for refus- ingamendment 763 970. Amending as to cause of action 764 971. Amending as to defences 763 973. Amending as to capacity 768 973. Fact implied 770 974. Inherent power 770 975. Not precluded by stipulation to try issue 770 976. Leave to amend does not supersede waiver of jury 771 977. Bill of particulars 771 976. Powers of United States Court 771 IV. SUBMISSION AFTER EVIDENCE TAKEN. SEC. PAGE. 1. Power and Duty of the Conrt. 979. Pleadings read without being put in evidence 772 980. Defining the issues for the jury 773 981. State Practice in U. S. Court 774 2. Sufficiency and Consistency of the Pleadings and of the Contentions upon the Evidence. 982. Dismissal for insufficiency 775 983. Immaterial issues should not be sub- mitted 775 984. Which cause of action, in ambiguous complaint 776 985. Alternative ground for conclusion of fact 776 986. Inconsistency in separate counts 777 987. Effect on the defence of plaintiff's statement of separate counts for same recovery 778 988. Denial and avoidance 778 989. Inconsistent defences 779 990. Sufficiency of defence not admitted by not demurring 780 3. Burden and Failure of Proof. 991. General denial puts burden on plain- tiff 781 992. Amendment 781 993. Failure to prove immaterial allega- tion 781 SEC. PAGE Burden of Vroot— continued. 994. — to prove proper but unnecessary allegation 783 995. Plaintiff need not prove his claim to the full extent 783 996. Indefinite or uncertain allegation 783 997. Omitted allegation supplied from ad- versary 's pleading. 784 998. Burden to prove negative allegation. 785 999. Order of proof of avoidance of de- fence 786 1000. Eight of rebuttal 787 1001. Admission of allegation of contract. 787 4. What Grounds of Relief or Defence Waived by not Plead- ing. 1002. Estoppel: defendant's waived by not pleading 788 1003. Plaintiff's waiver of estoppel by not pleading when there was oppor- tunity 788 1004. What is " opportunity to plead " at Common Law 789 1005. The same— under New Procedure.. . . 790 1006. Waiver of conclusiveness of techni- cal estoppel 790 1007. Estoppel proved by both parties.... 791 1008. Estoppel proved may avail 791 1009. Equitable regard to estoppel 791 1010. Illegality when avallble 792 1011. Variance 793 rABLE OF CONTENTS. TC-Xl SBC. PAGE. IVbat Grounds Waived— continued. 1012, Laches, avails though not pleaded.. 793 lOlS. Statute of Frauds 794 1014. Proper plaintiff 794 1015. Infancy of plaintiff 795 1016. Subrogation 795 1017. Rebuttal of cause of action proved but not alleged 793 5. Omission to Plead Waived by not Objecting to Evidence. 1018. Necessity of objection 796 1019. Evidence admissible on several grounds 797 €. Sivorn Denials and Effect of Omission. 1020. Document denied under oath 798 1021. Sword denial of instrument not evi- dence 799 1032. Conclusive admission 799 1023. Statutory admission must control verdict and findings 799 '7. Facts Occurred Pending Suit. 1024. Facts in furtherance of the original cause of action 800 1025. Additional instalments 800 1026. Facts in amended instead of supple- mental pleading 801 8. Conformity of Proofs to Alle- gations. 1027. Success on the evidence limited by the pleadings 802 1028. Allegation ot individual cause of ac- tion by plaintiff described as rep- resentative 811 1029. Allegation of representative's cause of action and proof of individual cause 813 1030. Representative capacity misde- scribed 813 1031. Counsel's practical construction of pleading 813 1032. Joint and several obligations 814 1033. Omission to reply 815 1034. Departure 815 d. Conformity of Findings to the Issue and Admissison. 1035. Findings controlled by admission. . . 815 SEC. PAQE, Conformity of Vlniiafia— continued. 1036. Waiver of admission by going into evidence 816 10. Conformity of Relief to the Prayer or Demand for Judg- ment. 818 821 822 823 823 824 1037. Scope of the demand for judgment. . 1038. Damages limited by pleading 1039. Interest 1040. Special damages not proven 1041. not alleged 1042. Circumstances of aggravation not available alone 1043. Treble and single damages 1044. Amending as to damages 1045. Granting legal relief under a com- plaint ot an equitable frame 824 1046. Granting equitable relief under a complaint of a legal frame 825 1047. Cause of action of concurrent juris- diction 826 1048. Equitable ground for relief equiva^ lent to legal 827 1049. Legal case proved under complaint in equity 827 1050. — by defendant's evidence 828 1051. Equitable case proved under com- plaint appropriate to legal action . 8S8 1052. Legal or equitable relief on same transaction SCO 1053. Equitable avoidance of defence to legal claim R:JO 1054. Necessary allegations of fact 830 1055. Equitable relief as to part, and damag;es as to part 831 1056. Equitable defence and counterclaim. 831 1057. Equitable defence lets in plaintiff's equities 833 1056. Affirmative relief in favor of defend- ant 832 1059. Rights of defendants in default 832 1060. Relief between codetendants— Omis- sion of demand and service 833 1061. — In case of plaintiff's failure 833 1063. — Incidental relief between code- fendants involved in shaping plaintiff's relief 833 ndment. .. 834 11. Amendment. 1063. How late may be allowed BRIEF ON THE PLEADINGS. DEMURRER. I.— THE FORM OF DEMUEEERS IN GBNEEAL. [The rules below stated as to the necessity of assigning the ground of demurrer in order to be heard thereon, are to be taken subject to the qualification that the Court have power at any stage of the proceeding to dismiss, if plaintiff cannot state a case entitling him to any relief, or if he shows only a case of v/hich the Court have no jurisdiction.' Where this rule is not applied on the argument of a demurrer, it is because the Court favor the giving of opportunity to be heard after notice of the objection. For if the objection be disregarded and the demurrer overruled, defendant can appear on failure to answer, and object orally to the want of a cause of action or of jurisdiction of the subject.] ' It does not require the authority of a statute to demur if no case is stated, or if want of jurisdiction appears. Stone «s. Stone, 11 N. J. L. J., 139 ; s. c, 13 AU. Bep., 345 ; 11 Cent. Rep., 590. (Here a statute relating to divorce proceedings provided for no defence, except hy answer to the peti- tion. Held, that defendant might demur to the petition.) s. p., Ponder w. Tate, 111 Ind., 148; s. c, 13 North East. Bep., 391; 9 West. Bep., 639. In Drake vs. Drake, 41 Hun, 366; s. c, 11 Civ. Pro. B., 77, is a dictum that the Court cannot without consent consider the objection that it has no jurisdiction of the subject of the action, if that ground is not specified in the demurrei, which is clearly unsound, for no Court or judge is bound to pro- ceed a step in a cause of which there is no jurisdiction. In equity, at the hearing, other causes of demurrer may be assigned ore ienus. BrinckerhofE vs. Brown, 6 Johns. Oh. (iV. T.), 149; s. p., Taylor m. Holmes, 14 Fed. Bep., 498. For authorities, see below; Demurrer; Defaults Motions on the pleadings at the trial. 1 S Abbott's Brief on the Plbadin^gs. Dbmukrer. [§ 1. § 1. Statutory grounds exclusive. § 9. Inconsistent objections. 2. Precise language of statute not 10. Speaking demurrer. essential. 11. Objections on face of pleading 3. — intelligible indication enough. ' alone noticed. 4. Omission to assign the right 13. — facts appearing by the pro- ground, cess. 5. Wrong specification under right 13. — facts necessarily implied by ground. the existence of the plead- 6. General and special demurrers. ings. 7. Stipulation cannot avoid statute. 14. Joint demurrer. 8. Several specifications, part only 15. Verification not required. being good. 16. Informality disregarded. § 1. Statutory groimds exclusive. — Under the new Procedure, a demurrer cannot be sustained on any ground other than those allowed in the Statute. Marie vs. Garrison, 83 N. Y., 14, 23. Hentsch vs. Porter, 10 Cal., 555. Kenworthy vs. Williams, 5 Ind., 375. McClary vs. Sioux City E. Co., 3 JVehr., 44. Dunn vs. Barnes, 73 N. C, 273. Dodge vs. Colby, 108 N. Y., 445 ; mod'g 37 Hun, 515. (Demurrer on ground that a cause of action of which the Court had jurisdiction was united with one of which it had not, is not sustainable.) s. P., Carter vs. De Camp, 40 Sun, 258. (Misjoinder contrary to the code as to joinder, not available under demurrer specifying a misjoinder which is not contrary to the code.) Harper vs. Chamberlain, 11 Ahh. Pr., 234. Thus, it is not good ground of demurrer that an amended petition departs from the cause of action set out in the original petition. Hord vs. Chandler, 13 B. Monr. (Ky.), 403 [otherwise in some jurisdictions]. So, stating one cause of action in several counts is not a ground of de- murrer. Lackey vs. Vanderbilt, 10 How. Pr., 155. But adding to a good demurrer objections not authorized by the statute — e.g., assigning as a cause of demurrer that certain parts of the complaint are immaterial and redundant — -does not vitiate the demurrer. Smith vs. Brown, 6 How. Pr., 383. § 2. Precise language of statute not essential. — It is enough if the demurrer Substantially indicates one of the § 3.] Form of Demureebs in GEi^rERAL. 3 statutory grounds. Informality in assigning, which ought not to mislead, may be disregarded. Buscher vs. Knapp, 107 Ind., 340 ; s. c, 8 North East. Rep., 263. (Specification of ground by saying "that said paragraph does not state facts sufficient to avoid the allegations contained in the answer to which it is intended to be a reply," sufficient without expressly stating which it was.) s. p., Lewellen vs. Crane, 113 Ind., 289 ; s. c, 12 West., 918, 15 N. East, 515. Connecticut Bank vs. Smith, 9 Abb. Pr. {N. Y.), 168 ; s. c, 17 Hoio. Pr., 487. (Demurrer specified that the com- plaint did not state facts sufficient to constitute a cause of action — among other things, that it did not show plaintiff's capacity to sue. Held, that the objection that the complaint did not show plaintiff's capacity to sue was sufficiently stated.) Cornell vs. Mayor, 9 Hun {N. Y.), 285. (Complaint alleged, among other matters, the death of one Hen- nessy. Defendant demurred upon the ground that there was a defect of parties plaintiff in that Hennessy was omitted as a party. Held, as it was the evident intention of the pleader tO assert that the personal representatives of Hennessy were necessary parties, the , infelicitous mode of assertion ought not to prejudice the defendant, because it could not have misled the plaintiffs.) The contrary notion was carried to an extreme in Grubbs vs. King, 117 Ind., 243 ; 20 N. East, 142. (Holding that a demurrer expressed to be upon the ground that the petition does not state facts sufficient to constitute " a good and sufficient petition," is not good as a de- murrer for failure to " state facts sufficient to constitute a cause of action," under Ind. Rev. Stat., 1881, § 339, cl. 5, for it does not set forth any statutory cause of demurrer.) § 3. — intelligible indicatimi enough. — To satisfy the rule that a demurrer to one of several causes of actions or defences must specify which, it is enough if it indicates which with such certainty that it ought not to mislead. Matthews vs. Beach, 8 N. Y., 173; rev'g 5 Sand/., 256. Buscher vs. Knapp, 107 Ind., 340 ; s. c, 8 North East. Sep., 4 Abbott's Brief on the Pleadings. Demureek. [§ 4. 263 (under §2 above) ; s. p., Wise vs. Eastham, 30 Ind., 133 ; Lagow vs. Neilson, 10 id., 183. s. p., Crasto vs. White, 52 Hun (N. Y.), 473 ; s. a, 23 State Bep., 535. (Holding it enough that it was obvious from the contents of the answer that it could only re- late to the first cause of action.) [For other cases see § 19 below.J Contra, Atchison vs. Lee, 75 Ind., 132 ; s. c, (mem.) 6 Weekly Gin. L. Bvl., 541. (Holding that the contents of the reply expressly referring to a fact sot forth in a third answer were not a sufficient indication, because "the answer cannot be thus made part of the reply.") § 4. Omission to assign the right ground. — A statutory ground of demurrer, not expressly assigned in the de- murrer, at least in substance, is not available on the argu- ment. Alabama, etc., B. R. Co. vs. Watson, 42 Ma., 74. /(Hold- ing that it could not be entertained in the face of the statute, even though the attorneys stipulate in writing that the demurrer shall be deemed as if specifying every ground that could be legally stated.) Jewett vs. Honeycreek, etc., Co., 89 Ind., 245. (Demurrer assigning no ground.) Washington vs. Eames, 6 JRen (3Iass.), 417 ; Suffolk Bank vs. Lowell Bank, 8 id., 356 ; Proctor vs. Stone, 1 id., 193. Demurrer assigning wrong ground. Adrian Water Works Co. vs. City of Adrian, 64 Mich., 584 ;, s. c, 31 Northivest. Hep., 529. Carter vs. De Camp, 40 Hun {N. Y.), 258. Berney vs. Drexel, 33 id., 419. Dodge vs. Colby, 108 N. Y, 445 ; mod'g 37 Hun, 515. (So held, because the N. Y. Statute Code Civ. Pro., § 490, requires the ground to be specially stated.) § 5. Wrong specification under right ground. — If the ground assigned in the demurrer is expressly qualified by specifications, a particular objection not within the speci- fications is not available on the argument. State ex rd. Yard vs. Borough Commrs. of Ocean Beach, 48 N.J.L., 375 ; s.c., 5 Atl. Rep., 142. (Holding that where the statute does not require it, volunteering a specifica- § 6.J Forms of Demurrer in General. 5 tion estops the party from relying on any particular not ■ specified.) Nellis vs. De Forest, 16 Barh. N. Y., 61. § 6. General and special demurrers. — At common law, in equity, and in Courts of the United States, to mat- ter of substance a general demurrer is sufficient; but where the objection is to matter of form only, a special demurrer is necessary.' A special demurrer must specify the defect relied on sufficiently to disclose to the adversary the particular ob- jection he must answer ; and it is not enough, without doing so, merely to specify the nature of the objection or the point of law." Where the demurrer is to a part only of the adverse pleading, it must specify what part ; and it is not enough to describe it as "so much as" relates to a particular sub- ject or object. ° ' Christmas vs. Eussell, 5 Wall., 290, 303. (Common-law action ; general demurrer to plea of fraud, hdd not suf- ficient to entertain the objection that the acts constitut- ing fraud were not stated, but sufficient to entertain the objection that fraud could not be a defence, because the judgment pleaded was conclusive.) The United States Courts cannot give judgment for any defect, or want of form, " except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof ; and such Court shall amend every such defect and want of form, other than those which the party demurring so expresses ; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." U. S. R. S., § 954. A defect is formal when a defendant must of necessity be guilty of a breach of the law, and liable to an action if the declaration is true. Jacob vs. U. S., 1 Brock., 520, 524, Marshall, Ch. J. (Holding that under a stat- ute imposing penalty for rescuing or " causing to be" rescued, an allegation in the alternative was defective in form merely.) Abbott's Brief ost the Pleadings. Demukrek. [§ 6. The language of the Court in Eosenbach vs. Dreyfuss, 1 Fed. Bep., 391, 395, implies that this rule is only in force in states where special demurrers are retained. But the actual ruling was only that this act did not preclude giving effect to the state statute allowing amendment of course. As to the form of demurrers, the safer opinion is that, while leave to amend as of course is not inconsistent with § 954, tlie Courts of the United States may still re- quire demurrers to specify objections of form. ■' Childress vs. Emory, 8 Wheat. { U. S.), 642, 671. (Debt in the detinet, on a note, against an executor. On appeal it was suggested at the bar that the action ought not to have been in detinet only, but in debet et detinet ; but it was not assigned as cause of demurrer. (And the Court say that this is a mistake, " and if it had been otherwise, the objection could only have been taken advantage of on special demurrer, for it is but a matter of form and cured by our statute otjeo/ails.") Dwight vs. Central Vermont K. Co., 9 Fed. Sep., 786. (Suit by stockholders against directors, etc. Defendant company demurred for want of necessary parties. Held, demurrer insufficient, because not specifying the parties whose non-joinder is fatal.) Martin vs. Bartow Iron Works ( U. S. Dist. Ct. N. D. Ga.), 35 Ga., 320. (Debt, on sealed note. Defendant pleaded nine pleas ; plaintiff put in special demurrers to six of them, three of which demurrers were for duplicity, but merely assigning that the pleas were double, in that they contained several distinct matters of defence. Hdd, insufficient. The pleader must specially show wherein the duplicity consists. Demurrers overruled.) ' Atwill vs. Ferrett, 2 Blatchf., 39. (Bill in aid of suit at law for copyright infringement, seeking discovery, etc. Defendant G. filed attempted special demurrers, but which only referred to the parts of the bill objected to as " so much of the bill as seeks," etc. Held, insufficient, and not admissible. They should point out by para- graph, page, or folio where the objectionable matter is to be found. Overruled, except as to the objection of multifariousness in the bill.) Chicago, St. Louis & N. O. E. Co. vs. Macomb, 2 Fed. Rep., 18. (Bill for discovery and relief in respect to certain bonds issued on plaintiff's road. Special demurrer " to so much of" certain specified paragraphs "or else- where," which sought discovery as to the bonds, etc., on ground that plaintiff has stated no case entitling it § 9.] Forms of Demukkee in G-bneeal. 7 to the relief. Hdd, insufficient, as too indefinite, al- though the demurrers were overruled on the merits.) § 7. Stipulation cannot avoid statute. — A statute pre- scribing the mode in which objections must be stated in a demurrer will not be disregarded by the Court in defer- ence to a stipulation that a demurrer which does not con- form to the statute shall be treated as if it did. Alabama, etc., E. E. Co. vs. Watson, 42 Ala., 74. (Hold- ing that no agreement of counsel can render nugatory a statutory prohibition imposing a rule of pleading intended to control the action of the Courts.) [This rule is fit to be evaded by immediate amendment.] § 8. Several specificatiovs, part only heing good. — It is the better opinion that a demurrer which specifies a sufficient objection in support of the ground it assigns is not vitiated by specifying also an insufficient objection. Harrison vs. Hogg, 2 Ves. Jr., 323. (Holding that if one ground is held good, it is unnecessary for the Court to examine the others.) The contrary was held in Anderton vs. Wolf, 41 Hun, 571, on demurrer for defect of parties, specifying as neces- sary parties (1) three directors of the corporation whose affairs were involved, (2) three inspectors of election, and (3) the transferees of certain securities. Held, that as it did not appear by the complaint that there were three inspectors, the whole ground of demurrer must fail, because the Code does not contemplate that one ground of demurrer should be sustained in part and overruled in part. [This ruling is extremely technical, and does not seem to rest on any substantial reason, and the present prac- tice is in harmony with the doctrine that while a general objection may be bad in whole if bad in part, a specific objection is not bad merely because another specific objection is bad.] § 9. Inconsistent objections. — It is the better opinion that a ground of demurrer, sufficient if it stood alone, cannot be disregarded because it assumes the insufficiency of another separate ground assigned in the same demurrer, 8 Abbott's Brief on the Pleadings. Demukrek. [§ 10. if the points of law relied on are not inconsistent with each other. The contrary was held in Berford vs. Barnes, 45 Hun, 253, where a demurrer upon the ground that the facts stated are insufficient to constitute a cause of action, and upon the ground that there is a misjoinder of causes of action, is inconsistent, for if no cause of action is stated, there can be no misjoinder of causes. [Citing Sullivan vs. N. Y., New Haven, etc., E. E. Co., 1 Civ. Pro. B., 285.] The better view is that a defendant has the right to sub- mit several views of the law not inconsistent in them- selves, as alternative grounds ; and this is in harmony with the doctrine of the New Procedure, which allows even inconsistent defences to be tried together. In the Cincinnati, etc., E. W. Co. vs. Citizens' Nat- Bank, 22 WeeUy L. Bull, 248, an action joining all the holders of an over-issue of stock for the pur- pose of determining which of the certificates was valid, came up on a demurrer which assigned as one ground that the petition did not state facts sufficient to constitute a cause of action, and as another that there was a misjoinder of parties defendant. The Court, overruling the demurrer, said : " There is in one as- pect of the case little difference between the two grounds of demurrer. The principal relief sought con- sists of bringing in all the defendants so that their claims may be sifted, and the true separated from the false ; and whether it be termed misjoinder or want of a cause of action, the objection is much the same, ex- cept in this, that if the allegations of the petition are such as to show that all the certificates are valid, or that the company is estopped to dispute their validity, then there can be no cause of action, and that without reference to the question of joinder." § 10. Speaking demurrer. — A demurrer cannot be aided by any allegation or suggestion of fact contained in it. It can only point to what appears or fails to ap- pear in the pleading demurred to.' If it alleges or denies a material fact, it must be overruled." But mere argument, and suggestions or allegations of fact, if immaterial, so that they would not avail in a plea or answer, may be disregarded as surplusage.' § ll.J Forms of Demukrer ik General. 9 ' Stewart vs. Masterson, 131 U. S., 151 ; s. c, 33 L. ed., 114 ; 9 8upm. a. Rep., 682. " Story's Eq. PI, 411. Clark vs. Van Deusen, 3 Code R., 219. (Holding that a pleading containing a denial cannot avail as a demur- rer.) s. p.. Camp vs. Bedell, 52 Hun, 63 ; s. c, 23 State Rep., 400 ; 5 N. Y. Supp., 63. (Holding tliat the adverse party can- not treat as a demurrer a pleading or answer contain- ing an objection to the suificiency of the complaint.) Bernard vs. Morrison, 2 Civ. Fro. R. (McCarty), 425 ; rev'g 64 How. Pr., 108 ; s. c, 2 Civ. Fro. R. {Browne), 399 ; and 2zd {McCarty) 213. The test whether a defence is an answer or demurrer is, Does it require any facts to be proved to sustain it? Struver vs. Ocean Ins. Co., 16 How. Fr. {N. Y.), 422. ' This is the Chancery rule. Cawthorn vs. Chalie, 2 Sim. 6 S., 127 ; Davies vs. Williams, 1 Sim., 5 ; and such a demurrer was not overruled as " a speaking demurrer." § 11. Objections on face of pleading alone noticed. — A demurrei' cannot be sustained unless the objection is apparent on the face of the pleading, either expressly or by refei'ence to another part of the pleadings. The Court cannot notice any other fact because it is suggested by counsel, except such as are admitted for the purpose by the adverse counsel, and such as may be judicially noticed without pleading or proof. Coe vs. Beckwith, 10 Abh. Fr. {N. Y.), 296 ; s. c, 31 Barh., 339 ; 19 How. Fr., 398. (It is not within the office of a demurrer to name parties who should have been joined ; and no conclusion is to be drawn from such statements adverse to the plaintiif.) Union Mutual Ins. Co. vs. Osgood, 1 Duer (N. Y), 707. (Where want of legal capacity to sue does not appear on the face of the complaint, the objection must be taken by answer.) Cragin vs. Lovell, 88 N. Y., 258, rev'g Cragin vs. Quitman, 22 Hun {N. Y.), 101. Specific performance : the com- plaint described the land in question as a plantation in Louisiana known as " Live Oaks." The answer set up as a counter-claim damages for injury to real property, des- ignating such property by the terms " said Live Oaks," I 10 Abbott's Brief on the Pleadings. Dbmureer. [§ 12. " said plantation." Held, that it sufficiently appeared on the face of the counter-claim, by aid of the words of reference, that the land in question was in the State of Louisiana and a demurrer to the jurisdiction should be sustained. § 12.— facts appearing hy the process. — A demurrer to complaint cannot be sustained by anything which appears only by the process,' or return of service,' or by other parts of the record not forming a part of the plead- ings. Exhibits form a part of the pleadings for this pur- pose, in some Jurisdictions.' But when the sufficiency of the pleading depends upon its interpretation in respect to the nature or frame of the intended action, the Court may refer to the process, and deem it controlling upon that question in a case otherwise doubtful. * ' Cochran vs. American Opera Co., 20 Ahh. N. 0., 114. (So holding where the title of the complaint showed that the action was brought on behalf of the plaintiffs named, and all other creditors similarly situated who may come in and adopt it, but there was no direct allegation in the complaint that they sued in that manner ; and the summons gave only the individual names of the parties, without any similar indication.) Variances between the writ and the declaration are mat- ters pleadable in abatement only, and cannot be taken advantage of on general demurrer to the declaration. Duvall vs. Craig, 2 Wheat., 45 ; Wilder vs. McCormick, 2 Blatchf., 31 ; Wilkinson vs. Pomeroy, 10 id., 524. ° Swann vs. Phoenix Iron and Coal Co., 58 Oa., 199. Where a bill alleged that defendant was of a certain county, but the sheriff returned " not to be found," a demurrer based on the ground of want of jurisdiction on account of non-residence was properly overruled. The demurrer admitted that defendant was of such county, and the return of the sheriff could not be con- sidered on such an issue to the contrary. ' See below, Exhibits and Statutes requiring them. ' Supervisors of Kewaunee County vs. Decker, 30 Wise, 624. (Holding that where the complaint contained aver- ments appropriate to an action for money had and § 13] FOKMS OF Demurrer in Geiteral. 11 received, and others (in the same count) appropriate to one in tort for the conversion of money, — held, revers- ing the judgment below which had overruled the demurrer, that the fact that the summons was for relief showed that the action must be treated as one in tort.) § 1 3. Facts necessarily implied hy the existence of the pleadings. — A fact wMch is necessarily implied by the mere existence of the pleadings before the Court on a demurrei' may be assumed by the Court, for the purpose of determining the demurrer, as if it were formally al- leged ; for instance, the fact that the party was living at the time of pleading ;' or that a party pleading in his own favor a contract made by a third person, has ratified the agency of the third person in making it f or that an adverse claim is made by the party pleading such a claim ;' or that a defendant by appearing has waived an objection to Jurisdiction of the person.* But a fact not thus necessarily implied, though proba- ble, cannot be thus noticed." ' Freeman vs. Frank, 10 Ahb. Fr., 370. ' Walker vs. Mobile, etc., K E. Co., 34 Miss. 245. (Action on subscription for stock in plaintiff-corporation : plea that the person who took the subscription as agent had no authority, held, on demurrer, insufficient. The Court say : " The act was adopted and ratified by the company, as was fully shown by the act of bringing suit upon the subscription. After such act of ratifica- tion it would not have been within the power of the company to disavow the contract and to deny that the plaintiff was entitled to all the privileges of a stock- holder. And as the act of ratification appeared by, the record, it was competent for the Court to notice it in determining the sufficiency of the plea.") ' Thus the answer of a defendant in interpleader may be read to show that adverse claims are made. Chervet vs. Jones, 6 Mad., 267. See also § YI. 6, Adverse Claims. * Common practice. - Commonwealth vs. Moore, 20 Mass. (3 Pick), 194. (Plead- ing by guardian held not an admission of the party's 12 Abbott's Brief on the Pleadings. Demurrer. [§14. infancy : so held where the appearance was by attorney. The Court say the guardian might have been appointed for some other reason than infancy,) § 14. Joint demurrer. — A joint demurrer is not sus- tainable for one demurrant, unless sustainable for all. [A harsh technical rule, fit to allow a prejudiced demur- rant to circumvent by amendment ; see § 26.] Holzman vs. Hibben, 100 Ind., 338. (Action for goods sold against members of a partnership. It was objected on joint demurrer by all of the defendants that, the bill of particulars being only against one of the defendants, no cause of action was shown against the other defend- ants. Held, that the question could not be raised. In order to be available the demurrer should have been interposed separately by each defendant, or jointly only by the defendants against whom no cause of action was shown.) s. p., Wilkerson vs. Eust, 57 id., 172. (Foreclosure of mechanic's lien.) Clark vs. Lovering, 37 Minn., 120 ; S. c, 33 Northwestern Bep., 776 [citing Lewis vs. Williams, 3 Minn., 151 ( Gil., 95) ; Groncelier vs. Foret, 4 Minn., 13. People vs. Mayor, etc., of N. Y., 8 Abb. Pr., 7 ; s. c, 28 Barb., 240. Oakley vs. Tugwell, 33 Hun, 357 [citing N. T. & New Haven E. E. Co. vs. Schuyler, 17 N. Y., 592.] Fish vs. Hose, 59 Hoiv. Pr. (N. Y.), 238. Eldridge vs. Bell, 12 How. Pr. (N. Y), 547. (Where a good cause of action of an equitable nature is stated in the complaint against one of several defendants though not as against the others, a joint demurrer by all of the defendants is improper,) Philips vs. Hagadon, 12 How. Pr. {N. Y), 17. Brownson vs. Gifford, 8 Hoiu. Pr. {N. Y), 389, 392. The joinder of improper parties as defendants is only avail- able as a ground of demurrer by the defendants so im- properly joined, and is not a ground for a joint demur- rer. [Citing Story Eg. PI, § 509, 544 ; Van Santvoord's PL, 384.] Dunn vs. Gibson, 9 Neb., 513. Walker vs. Popper, 2 Utah, 96. Webster vs. Tibbets, 19 Wis., 439 ; s. p., Willard vs. Eeas, 26 Id., 540. Compare 44 Id., 49. § 17. J What aee the Pleadings Demueeed to. 13 [Contra, Story's Eq. PL, § 445 ; Crane vs. Deming, 7 Conn., 387, 394, (the case of a joint demurrer by hus- band and wife, overruled as to the husband and sus- tained as to the wife).] § 15. Verification not required. — Statutes wLicli re- quire that pleadings denying the execution of written in- struments be veiified, do not apply to a demurrer, even though the objection raised under the demurrer be that the execution of the instrument did not on its face bind the party demurring. Hitchcock vs. Buchanan, 105 TJ. 8., 416. (Objection that the contract sued on was that of the defendants' prin- cipal, not of themselves.) § 16. Informality disregarded. — Informality in a de- murrer does not render it error to sustain it, if the plead- ing to which it is interposed is bad. Palmer vs. Hayes (Ind. '87), 11 West. Eep., 672. (Mitchell, J., says : " The most that can be said is, that a bad answer went out of the record upon an informal de- murrer ; or, in other words, that the Court reached a correct conclusion, in a manner not altogether formal.") [As to Amending, see § 26.] II. KULES TURNING ON WHAT AEE THE PLEADINGS DEMURRED TO. § 17. The copy served. § 33. Several causes of action or de- 18. Original nol considered after fences, and demurrer to the amendment. whole. 19. Slip in addressing. 24. Demurrer to part of commingled 20. Decision on original. statement. 21. One count or defence not aided 25. Effect of answering pending de- by another. murrer. 32. General allegation applicable to 26. Amending, all of several divisions. § 17. The copy served cont/rols. — Under the New Pro- cedure, in case of a discrepancy between the pleading on 14 Abbott's Brief oif the Pleadings. Demureek. [§ 18. file, and a copy served, the party on whom it was served may rely on the copy, and the party who served it can- not as matter of right object that the original differs.' Otherwise under the old practice." ' McCarron vs. Cahill, 15 Ahi. N. C, 282 ; s. c, 1 How. Pr. N. 8., 305. (Motion to overrule demurrer as frivolous.) Fiske vs. Noble, N. Y. Daily Beg., May 31, 1883. (De- murrer to complaint.) [Both N. Y. City Ct. cases, in harmony with Supreme Court. practice. But the Court may give leave to amend, or amend instanter. See also § , Clerical error.] s. p., Trowbridge vs. Didier, 4 Duer, 448. (Question of variance at trial.) " Wood vs. Bulkley, 13 Johns., 486. (Question of variance at the trial.) § 18. Original not considered after a/mendment. — On demurrer to an amended or substituted pleading, the Court cannot notice the contents of the original pleading.' Otherwise, where an amendment is in terms only an addition." • Washer vs. Bullitt County, 110 TJ. S., 558, 561. s. p., Tompkins vs. HoUister (Mich.), 27 Northwest. Rep., 651. (Plea to original bill not noticed on demurrer to amended bill.) State vs. Simpkins, 77 Iowa, 676 ; s. c, 42 N. W., 516. EiOTHROCE, J., said : " Where a substituted pleading is filed in an action, the original may possibly be used as evidence against the party by reason of con- tradictory statements or the like ; but on a demurrer to the substituted pleading the two pleadings cannot be considered." ' In some jurisdictions this is a question of intention. See Winter vs. Quarles, 43 Ala., 692 ; Dunlap vs. Eobinson, 12 Ohio St., 530; Northern Bk. vs. War- saw Deposit Bk., Ky., 1889, 11 Southwest. Rep., 16. § 19. Slip in add/ressing. — A demurrer served after the pleading of the adversary has been amended, may be deemed to be addressed to the amended pleading, since it § 21.] What aee the Pleadin^gs Demurred to. 1'5 could not be to tlie original ; and the omission to state that the amended pleading was the one demurred to may be disregarded. McNab vs. Styles, Lawrence, J., N. T. Supm. Ct., 1881. Not reported. [For other cases see § 3 above.] § 20. Decision on original. — A decision overruling a demurrer to an original pleading does not preclude a de- murrer to an amended pleading.' Otherwise if the second pleading raises precisely the same question of law which was disposed of by the Ap- pellate Court upon the former pleading." ' Marie vs. Garrison, 13 Abb. JSf. C, 210, 215, 321 ; Hauselt vs. Fine, 18 id., 142. s. p.. Post vs. Pearson, 108 U. S., 418 ; aff'g 9 Northwest. Rep., 684. ' Chaffin vs. Taylor, 116 U. 8., 567, 57'0. Matthews, J., said : " The rejoinder which the Court [below] permitted the defendant to file tendered no issue of fact, but one of law merely ; and every question of law in the case had been covered by the former judgment of this Court in this case. The proper action of the Court [below] upon the mandate of this Court would have been to have entered judgment on the pleadings in favor of the plaintiff, and proceeded to an assessment of his damages." § 21. One count or defence not aided hy another. — A demurrable defect in one separate cause of action" or defence" cannot be aided by allegations contained in another cause of action or defence which is separately stated in the same pleading, unless expressly connected therewith by appropriate reference ; for which purpose any words indicating intent to make one division of the pleading complete by reference to a speciiied matter stated in another is enough.' ' Farris vs. Jones, 112 Ind., 498 ; s. c, 14 Northeast. Bep., 484, 487 ; 12 West. Rep., 169. (Tax-payer's action. Held, 16 Abbott's Beief on the Pleadings. Demureee. [§ 21. that an additional cause of action added by amendment was bad for not alleging plaintiff's interest. Citing Smith vs. Little, 67 Ind., 549 ; Entsminger vs. Jackson, 73 Ind., 144 ; Lynn vs. Crim, 96 Ind., 89 ; Ludlow vs. Ludlow, 109 Ind., 199 ; 9 N. E. Hep., 769.) Victory Webb Mfg. Co. vs. Beecher, 55 How. Pr., 193 ; Anderson vs. Speers, 58 Sow. Pr. {N. Y.), 68. s. p., at common law, Hughes vs. Moore, 7 CrancTi, 176 ; 3 Law. ed., 307. (Holding that oyer of a deed set forth in the first count does not make that deed part of the record so as to apply it to other counts in the declara- tion.) [The reasons for this technical rule are that otherwise the Court must search the whole pleading to ascertain if any one division is good ; and that if a division be struck out, the remainder ought to be good indepen- dent of what is gone.] ' Davis ■us. Eobinson 67 Iowa, 355; s. c, 25 Northwest. Bep., 280. Alterman vs. Parfitt, N. Y. Daily Beg., June 28, 1884 (N. Y. City Ct.). (A separate defence in an answer can- not be sustained on demurrer by resorting to denials contained in another defence, to which it does not refer for the purpose.) Catlin vs. Pedrick, 17 Wis., 88. (Dixon, J.: The demurrer to the second paragraph of answer was properly sus- tained, and the evidence under the third properly ex- cluded. The mistake of the pleader was in separating them so as to make two defences out of matter which constituted but one. Together they would have made out a counter-claim, and let in the proofs ; but apart, neither was sufficient to permit any evidence to be re- ceived under it. Plaintiff's attorney should have asked leave to amend by striking out the numerals which distinguished them as separate answers, and blending them into one.) ' Jones V. Heaton, 1 McLean, 317. (Allegation of citizen- ship in first count shows jurisdiction as to other counts referring to it.) Hockstedler vs. Hockstedler, 108 Ind., 506 ; s. c, 7 West. Bep., 75, 77. (Exhibit filed may be referred to in each division of the pleading as a part thereof.) Velie vs. Newark City Ins. Co., 23 Weekly Dig. (N. Y.), 456. (Action on fire insurance, first count describing the property as belonging to one C; second count referring to it as the property hereinbefore set forth. Held, a sufficient reference ; defendant could not have been misled.) § 31.] "What are the Pleabings Demurred to. 17 Cragin vs. Lovell, 88 N. Y., 258 ; s. c, 2 Civ. Fro. R. (Broione), 128 ; rev'g Cragin vs. Quitman, 22 Hun, 101. (A separate defence may contain all the requisite alle- gations within itself to make it a perfect counter-claim, or it may refer to papers annexed, or to other parts of the answer, or to the complaint, and the matters thus referred to are just as much a part of the counter-claim as if written at length therein. So held where a de- murrer to a counter-claim for waste committed to land outside of the State for want of " jurisdiction of the subject thereof" was erroneously overruled, on the ground that the fact of its location out of the State did not "appear on the face of the counter-claim.") [Code Civ. Pro., § 495.] Freeland vs. McCuUough, 1 Ben. {N. Y.), 414. (Allegation in a later count that the indebtedness therein alleged was " for the same consideration in the last preceding count of the declaration set forth," held a sufficient reference.) Woodbury vs. Delap, 1 Stipm. Ct:{T. & G.) 20; s. c, 65 Barh., 501. (The words " as above stated " held a suffi- cient reference.) Bogardus vs. N. Y. Life Ins. Co., 101 N. Y, 328. Where a subsequent count in a complaint states that plaintiff " repeats and reiterates all the allegations hereinbefore contained, and makes them a part of this her second cause of action," assuming that the allegations of the former count are thereby properly incorporated in the second count, they must be construed in connection with the allegations of the latter count in determining the sufficiency of such count ; and if any inconsistency exists between the two counts, the allegations of the second must be adopted as containing the statement in- tended to be relied on by the pleader. Beckwith vs. MoUohan, 2 W. Va., 477. If the second count is not good without aid of the reference to the first by the phrase " as aforesaid," it is proper to refer to the first for the purpose of ascertaining time and place, etc., and make the second count good in that way, the first count being a good one. Dorr vs. McKinney, 9 AUen (Mass.), 359. (A count for money had and received, which refers to another count where the particulars of the claim are set forth, is not subject to demurrer for the reason that no bill of par- ticulars is filed with it.) \_Contra, Potter vs. Earnest, 45 Ind., 416. In an action on a promissory note, a paragraph of an answer setting up a collateral agreement going to a partial failure of con- 18 Abbott's Brief oif the Pleadings. Demukeek. [§ 22. sideration, which , for the purpose of showing the con- sideration refers to and adopts a former paragraph, is bad on demurrer. The facts could only become a part of the paragraph by setting them out by averment.] [Compare vnth Stewart vs. Balderston, 10 Kans., 131. (Holding that although the same event can be stated once for all in the same pleading if it be subsequently properly referred to, yet one general statement cannot be made and then referred to in different counts in order to describe a number of distinct events of a similar character. An objection of this kind can be reached by demurrer after a motion to make more defi- nite has been interposed and overruled.)] § 22. General allegation applicable to all of several divisions. — A general allegation not included exclusively in one separate cause of action or defence, but so stated that, from its position as introductory to all, or otherwise, it appears applicable to all, is to be considered in con- nection with each, though not expressly referred to therein. West vs. Eureka Imp. Co., 40 Minn., 394; s. c, 42 N. W., 87. (Corporate existence of a party.) Fisher vs. Universal Cooking Crock Co., N. Y. Daily Beg., Apr. 26, 1887 ; Aib. Ann. N. Y. Big. 1888, Fl, T 11. (Corporate existence of a party.) [So also of the usual allegation of citizenship or residence, to give jurisdiction to some Courts, or of leave, to sue in cases where that is requisite.] Kider vs. Bobbins, 13 Mass., 284. An averment of de- mand and refusal in one count suffices for any number of counts involving the same transaction, although not referred to in such counts. [For cases contra, see last note.] A count may be so considered in aid of others, even after it has been abandoned. Jones vs. Van Zandt, 5 McLean, 214. § 23. Several causes of action or defences, and de- inurrer to the xoliole. — A demurrer to a complaint or answer, as a whole, for not stating facts sufficient to con- stitute a cause of action or defence, cannot be sustained 1 23.] What a-ke the Pleadings Demukeed to. 19 if there is more thaa one cause of action or defence, stated, and any one is good.' But a single demurrer, expressed to be to eacli of several causes of action or defences, may be sustained as a demurrer to any one that is bad." Dallas County vs. Mackenzie, 94 U. S., 660. Lowe vs. Burke, 79 Ga., 164; s. c, 3 Southeast. Rep., 4:49. Plymouth vs. Milner, 117 Ind., .324 ; s. c, 20 Northeast. Hep., 235 ; Western Union Teleg. Co. vs. Yopst (Ind.), 9 West. Rep., 76 ; s. c, 11 Northeast., 16 ; Stout vs. Turner 102 Ind., 418 ; s. c, 3 West Rep., 303 [citing McCallister vs. Mount., 73 Ind., 559]. Wright vs. Connor, 34 Iowa, 240. [s. p., in case of demur- rer to whole answer containing several defences.] Missouri Pacific K. Co. vs. McLiney, 32 Mo. App., 166 ; Hale vs. Omaha Nat. Bk., 49 N. Y., 626 ; Swords vs. Northern Light Oil Co., 17 Abb. N. C, 115. Langley vs. Metropolitan Life Ins. Co. (E. I., 1887), 11 Atl, 174 ; 5 Neio Eng., 334. Wright vs. Smith, 81 Va., 111. (Applying same rule where a single count contains several matters which are divisible.) Eobrecht vs. Marling, 29 W. Va., 765, 769; 2 Southeast., 827. Douglass vs. Satterlee, 11 Johns., 16. (Same rule at com- mon law, and in such case a bad count cannot be aided by what is contained in another count not expressly re- ferred to as a part of the former. lb.) For other cases see Griffiths vs. Henderson, 49 Cal., 566 ; Holbert vs. St. Louis, Kansas City & Northern E. Co., 38 Iowa, 315 ; Bonney vs. Bonney, 29 lewa, 448 ; Seaver vs. Hodgkin, 63 How. Pr., 128 ; Earner vs. Morehead, 22 Ind., 354 ; Martin vs. Mattison, 8 Abb. Pr., 3 ; Butler vs. Wood, 10 How. Pr., 222 ; Newbery vs. Garland, 31 Barb., 121 ; Jaques vs. Morris, 2 E. D. Smith, 639 ; Cooper vs. Clason, 1 Code R., N. S., 347 ; Clark vs. Smith, 4 West Coast Rep., 90 ; Townsend vs. Jemison, 7 Hoio. U. S., 706 ; Carson vs. Cock, 50 Tex., 325. Strange vs. Manning, 99 N. C, 165 ; s. c, 5 Southeast. Rep., 900. Newlon vs. Eeitz, 31 W. Va., 483 ; s. c, 7 Southeast. Rep., 411. * Kennagh vs. McGolgan, 21 N. Y. State Rep., 326 ; s. c, 4 N. Y. Supp., 230. (Holding a demurrer " to each and every defence contained in the answer" the same in 20 Abbott's Bkiep on the Pleadikgs. Demureee. [§ 24. effect as thougli plaintiff had demurred separately to each defence.) Sanford vs. Lowenthall, {Ky. Ct. App., 1880) ; 5 Ky. Law Sep. & Rev., 206. Eennick vs. Chandler, 59 Ind., 354. s. p., Eobrecht vs. Marling, 29 W. Va., 765 ; s. c, 2 South- east. Eep., 827. A specification which informs the Court and party what is intended is enough, though informal. Indiana B. & W. E. E. Co. vs. Dailey, 110 Ind., 75 ; 10 Northeast- ern Hep., 631. (Holding that a demiirrer expressed to be " separately to the 1st, 2d, 3d" [etc.'] paragraphs, for the reason that none of said paragraphs state facts sufficient [efe.], was a good demurrer to each.) § 24 Demurrer to part of commingled statement. — Different causes of action, or defences, contained in the same pleading, although stated as one, may be demurred to separately. Wright vs. Connor, 34 Iowa, 240. Harris vs. Eldridge, 5 Abb. N. C. {N. Y.), 278. Wiles vs. Suydam, 64 N. Y., 173. Clarkson vs. Mitchell, 3 E. D. Smith {N. Y.), 269. (Holding that defendant may demur to one and answer as to another of several causes of action in a com- mingled statement.) § 25. Effect of answering pending dermirrer. — The Court may ti'eat the service of an answer or reply as a waiver of a demurrer previously interposed by the same party ;' but may in its discretion hear the cause on demurrer, notwithstanding the answer.' ■ Barbey's Appeal, 12 Gent., 144 ; 119 Pa. St., 413 ; s. c, 13 All. Eep., 451 ; 21 W. N. V. ; 226. " Wilson vs. Mclntire, 73 Iowa, 711 ; 36 N. W., 715. Defendant filed a demurrer to the petition, and after- ward an answer, indorsed " Filed subject to demurrer." The Court subsequently sustained the demurrer, and plaintiff elected to stand on his petition, and appealed. Held, that irrespective of any effect of the indorse- ment on the answer, the hearing of the demurrer was § 37.] III. State Pkactice in U. S. Couets. 31 proper, as the Court might have allowed the answer to be withdrawn, and then allowed a demurrer ; and what was done was the equivalent of that. § 26 Amending. — The power of tlie Court' to amend, and to give a party leave to amend, extends to demur- rers.^ But it is very rarely invoked, demurrers being usually regarded as dilatory. ' The U. S. statute is U. S. E. S., § 954. The New York statute is Code Civ. Pro., § 723. The better opinion is that the Court has also an inherent power of amend- ment. Suckley vs. Slade, 5 Crancli C. C, 123. (Withdrawal allowed.) Offutt vs. Beatty, 1 Cranch C. C, 213. (Leave to amend a demurrer which did not go to the merits, refused.) Cooper's Eg. PI, 115 ; Mitf. Eg. PL, 214, n. (Q, 217, n. (x) ; Baker vs. Mellish, 11 Ves. 70 ; Dell vs. Hale, 2 7. cfc Vol. Ch., 1, 3. (Amendment by narrowing terms of demur- rer.) • Taylor vs. Holmes, 14 Fed. Rep., 498, 499 ; dictum per Dice, J. : " If the causes of demurrer are not. formally set, forth, plaintiff may object, and require them to be thus stated." [As to disregarding informality, see § 16.] III.— WHAT LAW GOVERNS IN THE UNITED STATES COURTS. 26. State practice in U. S. Court § 28. Statutory action given by com- — General rule. mon-law name. 27. _ «' as near as may be." 39. Use and form of demurrer. 30. Time of bearing. § 27. State practice in U. S. Court. — General rule. — The State practice of the State in which an United States Circuit or District Court is sitting governs the 22 Abbott's Brief on the Pleadings. Demurreb. [§ 27 " pleadings and form and mode of proceeding," in civil causes, other than in equity and admiralty," and in rem for forfeiture ; " except where the State practice rests only in unwritten rules, and the United States Court has a contrary rule.' But this does not allow the joinder of an equitable with a legal cause of action, nor the interposition of equi- table defences * (as distinguished from the mere applica- tion of such rules of equity as are followed by common- law Courts),' even in causes removed from a State Court after such pleading there.' Nor does it in general take away the substantial rights of a party,' nor the inherent common-law powers of a judge.' Nor does it dispense with the application of stat- utes of the United States expressly regulating pleadings or the form or mode of proceeding. In the application of the rule, statutes of the United States are paramount to conflicting State statutes arid rules and usages of the State Court.* State statutes and constitutional provisions and written rules of the State Courts are paramount to both rules and usages of the United States Court." Written rules of the United States Courts are para- mount to unwritten usages of State Courts.'' ' U. S. B. S., § 914. " Co£fey vs. United States, 117 U. 8., 233. ' Osborne vs. City of Detroit, 28 Fed. Bep., 385. ' Montijo vs. Owen, 5 Abb. N. C, 110; s. c, 14 Blatchf., 324. An equitable defence or counterclaim will be struck out on motion. Herklotz vs. Chase, 32 Fed. Bep., 433 y Church vs. Spiegelburg, 31 id., 601. ' President of Union Bank vs. Crine, 21 Abb. N. C, 146. (Holding also that an unnecessary demand of equita- ble relief may be disregarded ; and the pleading stand as an allegation of a legal case.) Compare contra, Whittenton Mfg. Co. vs. Memphis & §28.] III. -State Practice in U. S. Courts. 23 O. E. Co., 19 Fed. Rep., 273, 281. (Holding that on a bill in equity removed from a State Court, plaintiff cannot proceed at law and recover on allegations of facts constituting a legal cause of action.) " Northern Pacif. E. Co. vs. Paine, 119 U. S., 561. Whittenton Mfg. Co. vs. Memphis & O. E. Co., 19 Fed. Hep., 273. ' United States vs. Eobeson, 9 Pet. ( U. S.), 319. (Set-off in case arising exclusively under the laws of the United States.) Mutual Building Fund vs. Bossieux, 1 Hughes, 386. (Stat- ute cutting off defence for non-filing within specified time.) • Nudd vs. Burrows, 91 U. S., 426. (Mode of instructing JTiry.) ' Dwight vs. Menett, 4 Fed. Rep., 614. (Summons must be signed by clerk according to U. 8. B. 8., § 911, notwith- standing State statute allows it to be signed by attor- ney.) Turner vs. Newman, 3 Biss., 307. (Special proceed- ing given by act of Congress to restore lost record, are exclusive of State practice.) But the State and United States statutes are to be construed to harmonize as far as may be. State practice it seems * may be followed, although it rests only in unwritten usages of the State courts, if consistent with U. S. law and court rules. Fullerton vs. Bank of U. S., 1 Pet. {U. 8.), 604, 613. " U. 8. R. 8.,% 914 ; Osborne vs. City of Detroit, 28 Fed. Bep., 385. Manville vs. Battle Mountain Smelting Co., 17 Fed. Sep., 126. Eosenbach vs. Dreyfuss, 1 Fed. Bep., 391. (Code rule as to amending of course applies in U. S. Courts.) " Osborne vs. City of Detroit (above cited). § 28. — as near as may be. — The provision that the practice is to be " as near as may be " according to the State practice, does not mean as near as possible nor even as near as practicable. The indefiniteness of this language gives the Court power to disregard any subordinate provision of State practice which would unwisely incum- ber the administration of the law or tend to defeat the ends of justice. 34 Abbott's Beiee on the PLEADiifGS. Demubkek. [§ 29. Indianapolis E. Co, vs. Korst, 93 U. S., 291, 301 (SwAYNE, J. ). § 29. Statutory actions given hy common-law names. — The rale of U. S. R. S, § 914, that "the . . . pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and Dis- trict Courts, shall conform as near as may be " to those existing at the time in like causes in the Courts of record of the State, applies to an action given by an express statute of the United States in terms describing it as a common-law action, — such as U. S. R. S., § 4919, giving damages for infringement of a patent to *' be recovered by action on the case." And the pleadings in such action may and should be in the form prescribed by the State statute and rules, except so far as expressly modified by act of Congress, as for instance vrhere the act of Congress prescribes the effect of the general issue, etc._ Teese vs. Phelps, McAU. 17. (Sustaining complaint for damages for infringement of patent, though not in the common-law form for action on the case.) Celluloid Mfg. Co. vs. Am. Zelonite Co., 34 Fed. Sep., 744. (Holding in an action in N. Y. that the defence should be by answer as under the Code, not by plea as at common law in an action on the case. Lacombe, J., says: An action on the case in the Federal Courts is assimilated to the Code model except so far as it is modified by express enactment of Congress, as by §4920.) s. p., as to verification of pleading in such actions. Cottier vs. Stimson, 18 Fed. Bep., 689. § 30. Use amd form of demurrers. — Under U. 8. JR. S., § 914, providing that the "pleadings and forms of proceeding, in civil causes other than in equity and admi- ralty, shall conform as near as may be " to those existing at the same time in like causes in Courts of record of the State, — the State statute or general rule of the State Courts § 31.] III. State Practice in U. S. Courts. 85 as to what legal defences are to be taken by demurrer, and wliat by answer, is applicable in the United States Court f and demurrers in actions of a legal nature may be in the same form, and for the same causes, as specified in the State statute or general rule.^ But it is the better opinion that a State statute or rule authorizing State Courts to entertain a formal objection under a demurrer not specifying it, would not authorize the Court to disregard IT. S. R. S., § 954, which forbids, it to give Judgment for defects of form not specified. ' Chemung Canal Bt. vs. Lowery, 93 U. S., 72. (Holding that a State statute declaring how the defence of the statute of limitations shall be interposed, governs; and so of the decisions of the State Court, that inter- posing it by demurrer is a sufficient compliance with the provision that it must be interposed by answer.) ° This results from the ruHng in Eosenbach vs. Dreyfuss, 1 Fed. Rep., 391. § 31. Time of Tiea/rmg. — ^If the practice of the State Court as to time and mode of bringing on a demurrer for hearing is fixed by statute^ or by general rule of the State courts/ the Courts of the United States sitting in that State hold practitioners bound thereby. If the State practice is not so fixed, but rests merely on the usage of the Courts, the rule of the Court of the United States, if there be one on the subject, governs.* ' Eosenbach vs. Dreyfuss, 2 Fed. Rep., 23. " Dictum in Osborne vs. City of Detroit (below cited). ' Osborne vs. City of Detroit, 28 Fed. Rep., 385, 387. 26 Abbott's Beief on the Pleadings. Demuekbr. [§ 33. IV.— WHAT KIND OF ALLEGATIONS ARE ADMITTED BY DEMURRERS. [Tte general rule that a demurrer admits all material facts well pleaded, is a rule of logic for the purposes of the argu- ment merely. It is not an admission as matter of evidence. That results, if at all, from judgment, or from ultimate failure to answer.'] ' For remarks on the distinction between the admission raised by a demurrer in equity, and at common law, respectively, see Lamphear vs. Buckingham, 33 Conn., 237, 251. § 32. Immaterial allegation. § 36. Fact judicially noticed. 33. General allegation and inconsist- 37. Prediction. ent specific allegations. 38. Impossible fact. 34. Conclusions of fact which the 39. Damages. details do not sustain. 40. Conclusions of law. 35. Fact not alleged. 41. Construction of writing. § 32. Immaterial allegation. — Allegations immaterial to the cause of action or defence are not admitted by demurrer. Laughlin vs. Thompson, 76 Cal., 287 ; s. c, 18 Pacif. Rep., 330. (Ejectment.) Story's Eg. PI, 40. (Stating same rule in equity.) § 33. General allegation, and inconsistent specific alle- gations. — ^A general allegation is not admitted by de- murrer, if specific details coupled witli it are inconsistent vfith it, or raise a legal presumption contrary to it. Scofield vs. McDowell, 47 Iowa, 129. (Demurrer to answer which admitted execution of tax deed, but alleged that notice had not been given of the sale.) [See also § 63 as to General allegation hemg limited by spe- cific aUegations.l § 34.] What Kind of Allegations Admitted. 27 § 34. Conclusions of fact v)hich the details do not sus- tain. — If specific material facts are well pleaded, a con- clusion therefrom also alleged is not admitted by de- murrer if not supported by the specific facts stated, even though such conclusion if alleged alone would have been sufficient, and admitted by the demurrer.' Thus an allegation that one person was agent for another is not admitted if coupled with facts showing that the relation of agent did not exist." ' Hall vs. Bartlett, 9 Barb., 297. (Intent of attorney in buying a mortgage with intent to sue, a mere conclu- sion, where it was alleged that he proceeded to fore- close by advertisement.) Freeman vs. Hart, 61 lotua, 525. In an action by a surety on an appeal bond to restrain the collection of a judg- ment entered by mistake for a greater sum than the amount of his bond, an allegation that he had fully per- formed all obligations incurred under the bond is not admitted by demurrer. Whether the plaintiff had per- formed such obligations depends on the facts pleaded and not legal conclusions drawn therefrom by the pleader. Judgment reversed. ' Everett vs. Drew, 129 Mass., 150. § 35. Fact not alleged. — It is the better opinion that a fact not alleged is nevertheless admitted by demurrer, if it results by a legal presumption from facts which are well pleaded. Otherwise if it is only a presumption of fact or infer- ence for a jury. In other words, a demurrer to allegations of evidence for the jury does not admit the conclusion which the evi- dence tends to prove. But a demurrer to allegations of fact which are suffi- cient for the Court, admits the conclusion which the Court is bound to draw therefrom, even though the con- clusion be a conclusion of fact. , 28 Abbott's Bbief on the Pleadings. Demukkee. [§ 36. [The language of the authorities varies as to whether a demurrer admits matters of argument and inference. The reason of the true rule is that to allege and prove facts rais- ing a presumption of law is enough : plaintiff need not give further evidence ; why then should he be required to make further allegation ?] [See authorities under §§ 42, 50-52, as to Facts inferred.'] § 36. Fact judicially noticed. — -An allegation to tlie contrary of that of which the Court should take judicial notice is not admitted by demurrer. Taylor vs. Barclay, 2 Sim., 213. (Bill alleging that de- fendant represented himself to be agent for a foreign State which was " a sovereign State, recognized and treated as such by his majesty," etc.) [See also § 55, that Fojct judicially noticed is read unto the pleading.] § 37. Prediction. — A material allegation as to what will be the future effect of an act is admitted by demurrer, if it is capable of being fairly regarded as characterizing issuably, the nature and scope of the cause from which such effect is apprehended.' If it is a statement of mere opinion or apprehension it is not admitted ° unless accompanied by issuable facts substantiating its reasonableness. ' St. Louis vs. Knapp Co., 104 U. 8. 658. (Plaintiff city sought to enjoin defendant from building a runway to its sawmill by driving piles in a part of the Mississippi Eiver bed owned by plaintiff, alleging that such part of the river was used for wharfage purposes by plain- tiff, and alleged that the effect of driving piles there would be to divert the water, and create in front of plaintiffs wharf a deposit of mud and sediment, making it impossible for vessels to land there. A demurrer was sustained, the Circuit Court ruling that such alle- gation of the effect of defendant's proposed action was merely the expression of an opinion or apprehension on plaintiff's part. Held, error. Though general, it is a sufficiently certain statement of the essential ultimate § 40.J What Kind of Allegations Admitted. 39 facts on which the claim for relief is based; and it was not necessary to aver circumstances which may be proven in support of the general statement. The de- murrer should have been overruled.) " Bowen vs. Mauzy, 117 Ind., 258 ; s. c, 19 Northeast, 526. (Complaint to enjoin nuisance, alleging that defendants intended to erect a blacksmith's shop, etc., and that the gases and smells would be unbearable. Demurrer admits intent to erect, etc., but not — without stating threats or details — the anticipated effects.) § 38. Impossible fact. — An allegation the truth of which is legally impossible is not admitted by demurrer. Louisville & N. E. Co. vs. Palmer, 109 U. S., 244. § 39. Damages. — To a general allegation that the party has sustained damages to a specified amount, a de- murrer does not admit any particular amount, but only nominal damages ; which however sustains the action. Lindley vs. Miller, 67 III, 244. (The Court say, however, that a special averment, that the- damages were equal to or exceeded a particular sum would be traversable.) Havens vs. Hartford & N. H. E. Co., 28 Conn., 69, 89 ; Nolan vs. N. Y., New Haven, etc., E. Co., 53 Id., 462, 477. [For other cases see Default and Assessment of Dam- ages.] § 40. Conclusions of law. — A demurrer does not ad- mit a conclusion of law stated in the pleading demuried to/ unless it follows from material facts well pleaded." ' City of Buffalo vs. HoUoway, 7 N. Y., 493. (Allegation that by means of a contract, which is set forth, it be- came the duty of the defendant to perform certain acts, bad on demurrer if the complaint does not state the facts necessary to show the duty.) Greig vs. Eussell, 115 III., 483 ; s. c, 4 North West. Rep., 780. (Bill to redeem, after stating facts of the transac- tion, alleged that the deed was a mortgage. Hdd, that this conclusion was not admitted by demurrer.) Stow vs. Eussell, 36 III., 18. (Specific performance : alle- 30 Abbott's Bkibf on the Pleadings. Demukrek. [§ 40. gation that one contract was an extension of another, — not admitted. Demurrer never admits matters of law suggested in a jbill or inferred from it.) Compher vs. People, 12 III., 290. (Action on official bond : allegation by sureties that, by statutes referred to, their liability was materially changed, — not admitted by de- murrer.) Bead vs. Yeager, 104 Ind., 195, 201 ; s. c, 2 West. Bep., 240. (Allegation that it was "illegal and false," but not stating facts.) Lawrence vs. Wright, 2 Duer {N. Y.), 673. Ejectment. The complaint averred that certain lots on a date mentioned were "conveyed, by a person named, to plaintiff by a warranty deed ; that by virtue of this conveyance plaintiff was seized of the premises, had lawful title thereto, and was entitled to the possession thereof." Held, that as the facts alleged did not show the plaintiff's legal title, averment of the legal conclusion that he had title should be disregarded, and complaint was bad on demurrer. Mauney vs. Ingram, 78 N. C, 96. (Action to recover a horse from a bailee. Answer admitted plaintiff's prop- erty, but insisted on defendant's right to retain the animal until his charges for the care of it were paid. Hdd, a demurrer to the answer did not admit the lien. Judgment overruling demurrer reversed.) Grace vs. American Cent. Ins. Co., 109 U. S., 278 ; 27 Law ed., 932. (The jurisdiction of the Circuit Court cannot be supported by averments, in petition for removal, that the parties reside in different States, without averring also that they are " citizens" of such States, although coupled with a subsequent allegation that the contro- versy is "between citizens of different States," the latter being merely an unauthorized conclusion of law from the facts previously stated. Gould vs. Evansville, etc., E. Co., 91 U. 8., 526 ; s. c, 23 L. ed.f 416. Mosher vs. St. Louis, I. M. & S. E. Co., 127 U. 8., 390 ; 32 L. ed., 249. Pratt vs. Lincoln Co., 61 Wise, 62 ; s. c, 20 North West. Bep., 726. Wallingford vs. Mut. Soc, 34 MoaMs Eng., 65. * Demurrer admits all conclusions of law (whether stated or not) which follow from material facts well pleaded. Humbert vs. Trinity Church, 24 Wend., 587. [As to what are conclusions of law within the rule, see Buhs as to allegations on particular subjects, etc., below.] § 43.] Interpretation of Allegations. 31 § 41. Construction of v)riting. — Wliei-e the terms of a writing are pleaded, a demurrer does not admit the con- struction which the pleader puts upon them, nor the cor- rectness of inferences he draws from them. Bogardus vs. N. Y. Life Ins. Co., 101 N. Y., 328 ; Bonnell vs. Griswold, 68 id., 294. s. p., Morrison vs. North American Ins. Co., 69 Tex., 353, 5 Am. St. Bep., 63, 6 8. W., 605. (Statement of legal effect of a policy which is set forth may be strickejj out on motion.) v.— GENERAL RULES (APPLICABLE ON DE- MURRER) AS TO THE INTERPRETA- TION OF ALLEGATIONS. [These rules, though most frequently invoked on demurrer for insufficiency, are here stated separately, because occasion- ally applicable to' demurrers on other grounds. Other illus- trations will be found under the subsequent divisions.] § 42. Liberal construction of pleading. § 49. Grammatical ambiguity. 43. Common usages of speech. 50. Fact necessarily implied. 44. The whole of what is demurred 51. Fact not necessarily implied. to considered. ' 53. Fact presumed by law from 45. Inconsistency. what is alleged. 46. Alternative or equivocal allega- 53. Presumption of continuance of tion. fact. 47. Description as an allegation. 54. Legal fiction. 48. Clerical error. 55. Matters judicially noticed. § 42. Liberal construction of pleadings. — " The allega- tions of a pleading must be liberally construed, with a view to substantial justice between the parties." ' Notwithstanding this rule of the New Procedure, it is the better opinion that a pleading is wholly insufficient if a fact essential to be proved is omitted to be alleged ; 33 Abbott's Brief on the Pleadings. Demurrbe. [§ 42. and that the presumption that a party pleading intends by his pleading to imply all that is essential to its suffi- ciency will not aid such an omission." But a fact is sufficiently alleged if involved by neces- sary implication in facts which are expressly alleged.' If an allegation is capable of different meanings, that meaning will be taken, as against a demurrer, which will sust in the pleading, unless it be not a natural or ordinary meaning,' or unless its use may cover an evasive intent." The meaning of the allegations must be fairly ascer- tained from the whole pleading, without regard to tech- nical rules." In the application of these rules some weight is to be allowed to the question whether the missing allegation or qualification is essential to make out a cause of action or a defence, or essential only to the measure of damages or some other collateral point.' ' This is the usual provision of the codes. In N. Y. Code Civ. Fro., § 519. United States vs. Parker, 120 U. 8., 89,* citing Ferguson vs. Virginia, etc., R. Co., 13 Nev., 184 ; State vs. Central Pacific K Co., 7 id., 99, 103. In Perguson vs. Virginia, etc., E. Co., 13 Nev., 184, 191, the Court go so far as to say that " The result of the decisions in that State [New York] seems to be that, on a general demurrer, the allegations of a complaint will be construed as liberally in favor of the pleader as, before the code, they would have been construed after the verdict for the plaintiff. That is, they will be con- strued in such a sense as to support the cause of action or the defence. {Moak's Van Santvoord's PI., 3d ed., side page 771 et seq.) In this State a similar doctrine has been declared in State vs. Central Pacific Com- pany, 7 Nev., 103." [This is rather too broad.] Jackson vs. Jackson, 17 Or., 110; s. c, 19 Pac. Pep., 847. Fideler vs. Norton (Dak.), 30 North West. Pep., 128. [Palmer, J., dissented on this point. See opinion in 32 id., 57, reviewing cases.] Stillwell vs. Hamm, 97 Mo., 579 ; s. c, 11 South West., 252. Under the Missouri Code, a pleading should not be construed most strongly against the pleader, but given § 43. j Interpebtation of Allegations. 33 an interpretation such as fairly appears to have been intended by its atithor. Eoyce vs. Malony, 58 Vt. 437 ; s. c, 5 Atl Rep., 395, 397. (A pleading clear enough according to reasonable intend- ment and construction is sufficient on demurrer.) This rule applies to all defences. Lewis vs. Barton, 106 N. Y., 70. (Usury.) " Spear vs. DoAvning, 12 Ahl. Pr. {N. Y.), 437, 22 Eoiv. Pr., 30 ; 34 Barb., 522. (Leading case). While under the Code pleadings are not to be condemned for the want of form, and are to be liberally construed in favor of the pleader, yet the rule cannot be applied for the pur- pose of supplying fundamental requisites of a cause of action. Here the action was on a written instrument, set forth in the complaint, by which the defendant's tes- tator promised to pay the plaintiif a sum of money " for her attention to my son." Held, such an instrument expressed no consideration, since it afforded no pre- sumption that her services were rendered in pursuance of a previous request of the promisor, or that they were beneficial to him. Order overruling demurrer reversed. Belt Railroad and Stock-Yard Co. vs. Mann (Ind., 1886), 6 West. Rep., 314. (Allegation of wilful negligervce not enough where wilful injury was needed to be shown.) Beach vs. Bay State Co., 10 All. Pr. {N. Y), 71, holding, if place is material and the pleading ambiguous as to place, the presumption should be against the party whose pleading it is. Judgment on demurrer reversed. People vs. Supervisors of Ulster, 34 N. Y., 267. An answer to mandamus for the re-assessment of damages for the laying out of a highway, denied that the verdict of the jurors was certified by a certain named justice of the peace. There was no allegation in the writ that the justice referred to certified the verdict. The Court said : " It might be shown by argument that the pleader in- tended to deny that the justice who is stated in the writ to have acted in the proceedings by issuing the sum- mons for the jurors, etc., was the justice who certified the verdict. It is not the duty of a Court to resort to an inference or an argument as to the meaning of a bad pleading in order to sustain it on demurrer. Parties are required to make clear and distinct statements in their pleadings. Every . intendment on demurrer is against the pleader ; Courts are not to labor to make a better statement for the pleader, on a technical issue of 34 Abbott's Bkibp' on the Pleadings. Dbmuerbk. [§ 42. this kind, than he has made for himself." Judgment sustaining demurrer to reply to answer reversed. Evans vs. Collier, 79 Ga., 315 ; s. c, 4 South West., 264. In Schwenk vs. Naylor, 49 N. Y. Super. Ct. {J. d S.), 99, on motion to vacate arrest, the Court say : " The rule is, that allegations which are consistent with there being no cause of action are not to be deemed as tending to show a cause of action ;" hence an allegation that de- fendant represented that he owned all the stock of a specified corporation, which . company owned, etc., specified land, " having therein a large and valu- able saw-mill, etc.," held, not an allegation that de- fendant represented that the land had such a mill. ° McGee vs. Long, 83 Ga., 156. (Action on notes : plea of usury in original land contract, and the subsequent giving of the notes ; but not alleging distinctly that the notes were for the same transaction. Held, error to sustain general demurrer.) Wagoner vs. Wilson, 108 Ind., 210; s. c, 6 West. Bep., 405. A complaint which avers that the plaintiif advanced and loaned money to and for the use of defendants, and that the defendants "have refused to pay the plaintiff, though often requested so t8 do," makes it reasonably certain by inference that the sum advanced is due and unpaid. Shank vs. Teeple, 33 loica, 189. (Action in equity to set aside a conveyance accepted under representation that title was perfect, but in fact there was a " prior mort- gage" in favor of a third person. Error to sustain de- murrer for not saying it was recorded.) Williamson vs. Tingling, 93 Ind., 42. A pleading is sufficient when tested by a demurrer, if the material facts are certainly, although argumentatively and infer- entially, alleged. Action for injuries to mill privilege, by damming up the stream. The creek was refei-red to in the complaint in describing the plaintiff's land on which the mill was situated, and it was averred that defendant's mill was on the creek. Held on demurrer, that the complaint sufficiently showed that plaintiff's mill was on the creek. Milliken vs. Western Union Tel. Co., 110 N. Y., 403, rev'g 53 Super. Ct. {J. & S.). (Action for damages. The question on demurrer is upon the sufficiency of the facts which may fairly be collected from the pleading . considered together with whatever inferences may be drawn from them.) s. P., Wall vs. Bulger, 46 Hm {N. Y.), 346. § 42.] Interpretation of Allegations. 35 Moffatt vs. McLaughlin, 13 Hun, 449. (The imperfect averment of a material fact is not cause for demurrer. "Where the pleader's intent is apparent, but the phrase- ology doubtful in effect, the remedy is by motion. Here, in foreclosure, plaintiff averred that the land in question was the only real estate owned in common by defend- ants instead of by the parties. Held, that the allega- tion was only assailable for uncertainty, since if the allegation was true, the defendants could not hold other lands in (Common with the plaintiff.) \_Compare Simmons vs. Fairchild, 42 Barb., 404. (Count for construction of a will, assuming that it was the last will, etc., of the deceased, bad for not alleging that he was dead. Judgment overruling demurrer reversed.)] Story says: "The rule of pleading that every right »is to be taken most strongly against the pleader, it was re- cently decided by Vice-Chancellor Wood, will not entitle the demurring party to any inference to be drawn from a possible state of circumstances consistent with the averments of the bill. All that is now re- garded as fairly deducible from this rule of pleading is, that all language used in pleading is to be understood according to its natural import, in the connection, and with reference to the subject-matter; but that in an exact equipoise the construction should be againgt the pleader, and that no intendments are to be made in favor of the pleader's case which do not naturally re- sult from the facts stated." Story's Equity Pleadings, 413. * Allen vs. Patterson, 7 N. Y., 476. (The complaint stated in substance that defendant was indebted to plaintiffs in a sunK for goods sold and delivered, " and that there was now due them from the defendant" a specified sum. Held, that under the liberal construction required by the Code, the term " due" must be considered as used to express the fact that the money sought to be recov- ered had become payable, or the time when it was promised to be paid had elapsed. Where words are employed capable of different meanings, that is to be taken which will support the pleading. Demurrer overruled ; judgment affirmed. The Court say : " The maxim in pleading that everything shall be taken most strongly against the party pleading . . . must be re- ceived with some qualification, for the language of the pleading to have reasonable intendment and construc- tion ; and when a matter is capable of different mean- ings, that shall be taken which will support the declaration," etc.) 36 Abbott's Beief on the Pleadings. Dbmurkee. [§ 42, Eathburn vs. Burlington & Missouri Eiver K. Co., 16 Neb., 441. (If the language of a complaint when given its ordinary meaning shows a liability of the defendant to the plaintiff, a demurrer on the ground that the facts stated do not constitute a cause of action should be overruled. Action for injuries sustained by plaintiff caused by defendant's negligence. Judgment on de- murrer reversed.) ' Olcott vs. Carroll, 39 N. Y., 436. (If the language of a complaint is ambiguous, and an intelligible and most natural construction of the words show a good cause of action, such construction should be adopted on demur- rer, rather than one which makes the complaint an absurdity. Demurrer properly overruled. Judgment affirmed.) Pender vs. Dicken, 27 Miss., 252. (The declaration alleged that during the lifetime of the plaintiff's wife, since deceased, the defendant leased the property of the wife from her and the plaintiff, and an action accrued to plaintiff as survivor of his deceased wife for dam- ages occasioned by breach of contract. On demurrer it was objected that the plaintiff sued as survivor, when the demand was in right of his wife. Held, as the action was brought two years after the expiration of the lease, and the damage was alleged to be to plaintiff as survivor, it was the fair intendment that she died after the breach of the contract. If the words used in the pleading were susceptible of different rieanings that meaning must be adopted which would sustain the pleading.) " Winahs vs. Insurance Co., 38 Wis., 342. (In an action on an insurance policy complaint alleged that the defend- ant's agent had agreed " at the time of the delivery of the said policy, and thereafter before the fire, as here- inafter stated, that the said premises might be lighted with gasoline gas," etc. On demurrer it was contended that no agreement with the agent was pleaded, but only an unfulfilled promise to plead such agreement; the words " hereinafter stated " referring to the agreement, not the fire. Held, such verbal criticism too nice for the construction of pleading. The passage quoted fully stated the agreement; and it was pJainly the fire and not the agreement which is to be thereafter stated. Order overruling demurrer affirmed.) * Kelley vs. Peterson, 9 Neb., 77. (The complaint alleged that the " defendant refused and neglected to cut the plaintiff's wheat, as defendant had agreed and con- § 42.] Interpretation^ of Allegations. 37 tracted." Held, the word " as" here used was equiva- lent to the word " which"; and the allegation was suf- ficient to sustain a judgment for the full value of the crop. Judgment overruling demurrer affirmed.) The general rule of construction is, that if a plea has on the face of it two intendments, it shall be taken most strongly against the party offering it. United States vs. Linn, 1 Hoiv. {U. 8.), 104 ; 17 Pet, 88. To a declaration on a sealed instrument a plea was inter- posed that after the instrument had been signed it had been altered without the defendant's consent, by affix- ing seals to the signatures. Held, on demurrer, the plea not alleging by whom the seals were affixed, was left open to two intendments — either that it was affixed by plaintiff or a stranger : in the first case the deed was void, in the latter not ; and under the rule stated the latter must be regarded as intended. Judgment re- versed, because declaration was insufficient. 'Nash vs. City of St. Paul, 8 Minn., 172. (In an action on a contract with a city, which by its charter can only make such contract with the lowest bidder, plaintiff must allege that he was the lowest bidder. An allega- tion that it was awarded to the plaintiff " as" the lowest bidder is not enough, because the allegation may be literally true, and yet the plaintiff may not have been the lowest bidder in point of fact. Judgment sustain- ing demurrer affirmed.) ' Robinson vs. Greenville, 49 Ohio St., 625. (In an action against a municipal corporation to recover damages for injuries sustained from the discharge of a cannon in a public street by an assembly of disorderly persons, an allegation in petition that the authorities of the cor- poration " had negligently and carelessly given permis- sion to such persons to fire the cannon" was to be con- strued with reference to the context, namely, as an allegation that the authorities took no steps to prevent the tiring, and that demurrer to petition should there- fore be sustained. Judgment affirmed. Court say : " "While the common-law rule that pleadings must be construed most strongly against the pleader has been abrogated, we are not required under the present sys- tem to construe every equivocal word or phrase most strongly in favor of the pleader.") 'Boeder vs'Oimshj, 13 Abb. Pr. {N. Y.), 335; 22 How. Pr., 270. (A complaint by a father, showing that the negligence of defendant's servants caused the death of the plaintiff's child, and " that plaintiff was and will be compelled to pay one hundred dollars for medical at- 38 Abbott's Brief on the Pleadings. Demuerer. [§ 43. tendance, funeral and other expenses caused by the death of his son," is sufficient on demurrer. Though no expenses can be recovered except such as are neces- sary and reasonable, they need not be so described in the complaint. The " other expenses" mentioned could be ascertained by a bill of particulars or motion to make more definite.) [See also §§ 35, 36 as to Facts not aMeged, and §§ 50-52 as to Facts inferred.] § 43. Common usages of speech. — Language used in pleading must be interpreted with reference to the sub- ject-matter to which it is applied. Language which, literally understood, is inappropriate, may be aided by reading it in the sense in which it is used in common speech. Murray vs. Worcester Coal Co., 51 Conn.* 103. (Action by owner and master for damage ; allegation that he gave defendant notice that "he desired to be dis- charged," . . . but " defendant neglected and refused to discharge the plaintiff," etc. ; sufficient allegation as to discharging vessel or cargo.) M'Lellan vs. Morris, Kirhy {Conn.), 145. (Holding that a declaration on a promissory note containing the words " use till paid," need not aver the meaning of the words, the obvious meaning being "interest till paid." Judg- ment on demurrer for uncertainty reversed.) § 44. The whole of what is demurred to, considered. — On demurrer, pleadings are to be judged by their general scope and tenor, and not by detached and isolated state- ments thrown into them,' In applying this principle, allegations which are im- proper and unnecessary may nevertheless be considered in the pleader's favor, for the purpose of ascertaining the reasonable intendment of his pleading, when attacked on demurrer.'' ' City of North Vernon vs. Voegler, 103 Ind., 314 ; s. c, 2 North Eastern Bep., 821, 823 [citing Neidefer vs. Chastain, § 45.] Inteepretatiok of Allegations. SS 71 Ind., 363 ; W. U. Tel. Co. vs. Eeed, 96 Ind., 195, 198]. (Action for negligence in grading and overflowing plain- tiff's- premises. Negligence held admitted as distin- guished from error of judgment in plan, notwithstand- ing some fugitive denials.) ' Chambers vs. Hoover, 3 Wash. Ter., 107 ; s. c, 13 Pacific Rep., 465. (Under the Code, says Tdenee, J., " a suitor is no longer to be turned out of court if, by making all reasonable intendinents in his favor, enough can be seized hold of in his pleadings to show that he has rights which ought to be enforced. He may be re- quired on motion to conform his statements to the rules of good pleading, and if he refuse, may be turned out of court ; but as against demurrer, the oflSce of which is to raise a substantial issue on the law of thei case, and not on the law of practice and pleading, evi- dentiary facts and even inferences from averments amounting to mere conclusions of law will be consid- ered in his favor." Action for forcible entry and de- tainer : complaint showing that plaintiff by a written instrument in writing, not witnessed or acknowledged, leased the premises to defendant for at least one year and probably longer ; that the plaintiff had the option of terminating the tenancy at the end of one year by giving one month's notice ; that such notice was given but the defendant refused to vacate, — is sufficient on demurrer although vague and indefinite, as it appears the defendant wrongfully withheld the land even if the lease was for more than one year, and therefore void because not witnessed and acknowledged, as the notice given was sufficient to terminate a tenancy at will. § 45. Inconsistency. — When a pleading is otherwise sufficient, an inconsistency between allegations is not fatal, if it can be harmonized by construing one of them in the sense in which the pleader must be understood to have used it, supposing him to have intended his plead- ing to be consistent with itself. Eoyce vs. Maloney (Vt., 1886), 2 N. Eng. Rep., 765. (Hold- ing, therefore, that the pronoun "which" was to be referred to the antecedent that made the allegation effective ; and that a statement of time might be un- derstood to apply to all of several events alleged in connection.) 40 Abbott's Beief on the Pleadings. Demukkbr. [§ 46. s. p., Eex vs. Stevens, 5 East, 244, 247. (Oriminal case ; Ld. Ellenbobough.) Brady vs. McCosker, 1 N. Y., 214, affg 1 Bari. Ch., 329. (Bill in equity.) § ,46. Alternative or equivocal allegabion. — An allega- tion in the alternative, or fairly susceptible of either of two distinct meanings, is not bad on demurrer, if it be sufficient in each aspect.' But the uncertainty is to be taken most strongly against the pleader, and his case is not stronger than its weakest aspect ; and if, so understood, it is insufficient, it is demurrable." ' Marie vs. Garrison, 83 N. Y., 14, rev'g 45 Super. Ct. {J. & 8.), 157. (Allegation that plaintiffs hold certain stock, either in their own right or in trust.) [It may often be otherwise, where the alternative is in the charge against defendant and the frame of the allegation is such that it cannot be justly said that the complaint states the facts constituting the intended cause of action.] = The Sir Charles Napier, L.R.,5 Prob. D. (App.), 73 ; s. c, 28 Weekly Rep., 718. (Allegation that underwriters " paid or agreed to pay," not an allegation of payment. Jessel, M. K., said : " The pleading being in the alter- native, the other side were entitled to interpret it most strongly against the pleader.") Poreman vs. Bigelow, 7 Ceydr. L. J., 430, U. S. Circ. Ct. Mass. (Bill by assignee of a bankrupt corporation to charge shareholders, alleged that there were three classes of shares fraudently issued, but did not specify in which defendant's were. Held, that they were en- titled to assiime that theirs were of the class least open to objection.) State vs. Casteel, 110 Ind., 174 ; s. c, 11 North Host. Rep., 219,226. (Elliott, C. J., says : " Construction of doubt- ful or uncertain allegations which enables a party to throw upon his adversary the hazard of correctly inter- preting their meaning, is no more allowable now than formerly." [Citing Clark vs. Dillon, 97 N. Z, 370; Bates vs. Kosekrans, 23 How. Pr., 98.]) s. P., Moores vs. Lehman, 52 N. Y. Super. Ct. {J. & S.), 283. Slocum vs. Clark, 2 Hill {N. Y.), 475. (Equivocal plea, at common law.) § 4:7.] Ikterpretation of Allegations. 41 § 47. Description cm am, allegation. — Matter introduced in a pleading merely as descriptive or designatory, with nothing to indicate the time at which it was applicable, is construed as relating only to the time of making the pleading, and does not avail as a distinct allegation where its truth or applicability at a time before suit brought is material.' But a descriptive statement connected in point of time with a fact well pleaded is a sufficient allegation, — as for instance, " that defendant, being a common hostler, sold, etc.," is an allegation that he was such at the time of so selling." ' Wriglit vs. Burroughs, 61 Vt., 390, abst.; s.c, 41 All. L. J., 35. ("E. W., husband of said W.," in the mention of the parties, not an allegation of the existence of mar- riage before suit, even though there was an allegation that defendant made and delivered the note sued on to the said plaintiff Mary Wright ; for her name might have been Wright before marriage.) [Under the New Procedure the question ought rather to be whether defendant could have been misled by the indefiniteness. But in Stringer vs. Davis, 30 Gal., 318, the Court went so far as to hold that an allegation in a complaint to foreclose a chattel mortgage, that the " furniture and upholstery were furnished for and used in furnishing of the hotel in the city and county of San Francisco known as the Willows," is not an allegation that the goods were used in a hotel, nor that they were used in a building called the " Willows," nor that the " Willows" was' a hotel except inferentially. Defend- ant's motion for nonsuit should have prevailed. Judg- ment reversed.] In Eioberts vs. Lovell, 38 Wise-., 211, it was held that where a complaint alleging slander omitted the word " defendant" before " maliciously spoke," a previous allegation that " when the slanderous words herein- after mentioned were spoken by defendant, plaintiffs were husband and wife," did not amount to an allega- tion that defendant spoke them, even for the purpose of . letting in evidence at the trial. [These two rulings may be sustainable on common-law traditions, but are not in accordance with Code practice.] [An exception is recognized in equity, in llie description of parties usual in the introductory clause, and the prayer for process when the question is whether jurisdiction is shown. See Demurrer for want of jurisdiction.] 42 Abbott's Brief ojs" the PLEADiifOS. Drmueeek. [§ 48. " Johnson's Case, 2 Cro. Jac., 610. (Indictment good.) S. P., Harle vs. Morgan 29 8. Car., 258; s. c, 7 South East. Rep., 487. (A complaint the caption of which mentions the individual names of the defendants and describes them as " partners trading under the firm name and style of A. J. Morgan & Co.," and alleging that " de- fendants, the said firm of A. J. Morgan & Co., executed " their written obligation, sufiiciently alleges the partner- ship of the defendants, and is good on demurrer. S. P., Parker us. Monteith, 7 Oreg., 277. (Seduction. Alle- gation that " one F., the daughter of plaintiff, was," etc., sufficiently avers for the purpose of admitting evidence that F. was his daughter, being equivalent to " one F., who is the daughter.") § 48. Olerical error. — An obvious clerical error, such as ought not to have misled the adverse party, should be disregarded on demurrer, M^hether it consists merely in a discrepancy or incongruity between different parts of the pleading,' or the omission of a necessary word which the context suggests,' or the insertion or substitu- tion of a word ' even though it reverses the meaning ob- viously intended. This rule is applied as well to the pleading of a de- fendant ' as to that of a plaintiff ; because if plaintiff wishes a more explicit answer he should seek amendment. ' Atkins vs. Warrington, 1 GUtt. PI, 16 Am. ed., 273 *. (One thousand eight and twenty-six, "read one thousand eight hundred and twenty-six ; " and special demurrer overruled.) 1 Chitt. PI, 16 Am. ed., 253. (Use of « defendant" in place of "plaintiff.") Wood vs. Decoster, 66 Me., 542. (A demurrer will not be sustained merely for erroneous mention of the defend- ants as singular, or the plaintiff as plural, if, upon the declaration as a whole, the persons and case can be understood.) Chamberlin vs. Kaylor, 2 E. D. Smith {N. Y.), 134. (Where a complaint, entitled against two defendants consisted of a printed form, with the blank spaces filled in writ- ing, alleged a sale of goods "to the defendant," — Md, the omission of the letter "s," being apparently a clerical error, should be disregarded on demurrer and § 48.] Intekpeetation of Allegations. 43 -the allegation deemed to charge both defendants. Order overruling demurrer affirmed.) McOarron vs. Cahill, 15 Abb. N. C, 282 ; s. c, 1 How. Fr. {N. S.), 305. (A complaint, alleging in one paragraph facts showing a cause of action for piece of work done and materials furnished, is not demurrable for insuffi- ciency by reason of a second paragraph alleging that no part of the same has been "furnished," instead of "paid." The defect is a technical one, a clerical error, which does not nullify the former allegations, under the rule requiring pleadings to be construed with a view to substantial justice between the parties.) Fickett vs. Brioe, 22 Hozv. Fr. (N. Y.), 194. The com- plaint first alleged that the defendant agreed to manu- facture and deliver certain goods " at the price of $475," and further alleged that " plaintiff agreed to pay the defendant therefor the sum of $470." Held, the dis- crepancy was probably a clerical error, and could not sustain a demurrer.) ' Baldwin vs. Banks, 20 lU., 48. (Action on a note, omitting from the clause where the averment of non-payment was intended the word " not," and therefore saying " defendant, disregarding, etc., hath paid," etc., instead of " hath not paid." Held, that the omission was cured by the statute of " jeofails ;" and if it were not, where the sense is so obvious from the words used, the declara- tion must be held good.) Cummings vs. Lebo, 2 Rawle {Pa.), 23 ; s. c, 19 Am. Dec, 615. (Allegation that a bond was conditioned that de- fendant should not appear, instead of that he should appear ; amendable below, and disregarded on appeal.) Newcomer vs. Kean, 57 Md., 121, abst. ; s. c, 25 Alb„L. J., 263. (Plaintiff instead of plaintiffs, in laying damages in declaration by husband and wife for slander of wife, not ground for setting aside verdict.) Marshall vs. Bresler, 1 Hoio. Fr. N. 8. {N. Y.), 217. (Mis- take of ten years in date. of document as appearing in copy of complaint served, not ground of demurrer.) , [In Chambers vs. Robbins, 28 Conn., 544, 550, an illegible word in the original represented by a mistaken word in the copy was held equivalent to an omission of a necessary word.] ' Indiana, B. & W. E. Co. vs. Dailey {Ind. 1887), 8 West. Hep., 517. (Allegation that plaintiff was injured by the negligence of an "engineer in plaintiff's employ," instead of in defendant's, held harmless as " so ap- parently only an accidental misnaming of a party that no one could be misled by it.") 44 Abbott's Beief ok the Pleadings. Demubrer. [§ 49. Kenny vs. N. T. Centr., etc., E. E. Co. 49 Hun {N. Y.), 535. (Action by administratrix for causing death of intestate : allegation that " said defendant [instead of said decedent] left liim surviving his vs^idow," etc., etc., held, an obvious clerical error that could not have mis- led and should be disregarded.) Eoussell vs. St. Nicholas Ins. Co., 41 Super. Ct. (J. & S.), 279 ; s. c, 52 How. Pr., 495. (Complaint on insurance policy, alleging that the fire was not caused by any of the "accepted risks" contained in the policy, instead of " excepted risks.") ' Fears vs. Albea, 69 Tex., 437 ; s. c, 5 Am. St. Rep., 79, 6 S. W., 286. (Holding that the writing of a wrong rnirne in a plea is immaterial when, from an inspection of the entire plea, it is manifest that it was so written through mistake, and it is obvious what name was intended, without looking beyond the plea itself ; for in such case if the party is misled, it is by his own carelessness.) § 49. Grammatical ambiguity. — Whether a personal pronoun shall be understood as referring to the imme- diately preceding substantive or to an earlier one is a question of interpretation to be determined by the ap- parent intent, although it may be contraiy to the gram- matical construction. Thus the words, "the plaintiffs, complaining of the defendants, allege that they are," etc., is to be interpreted as alleging that the defendants are or that the plaintiffs are, whichever may be necessary to sustain the pleading. Steeple vs. Downing, 60 Irtd., 478. (In an action to recover land, the complaint commenced by stating that plain- tiffs, naming them, "complain of the defendants," naming them, "and saj they are the owners." Held, there is no rule of legal or grammatical construction which necessarily requires that a pronoun shall relate to the last noun or nouns mentioned for its antecedent. This is a matter which is governed by the sense and meaning intended to be conveyed. The word " they " as above used related to the plaintiffs and the com- plaint was good.) Moore vs. Beem, 83 Ind., 219. (The complaint stated that " plaintiffs complain of the defendants and say they are partners," etc. Held, the personal pronoun referred to § 50. J Interpretation op Allegations. 45 the plaintiffs, and demurrer to complaint was properly overruled. Judgment affirmed.) § 50. Fact necessarily implied. — Whatever fact is necessarily implied in an allegation of fact, so that the latter could not in a legal sense be true without the former, may, on demurrer, be deemed to be sufficiently alleged although not expressly stated. Thus an allega- tion of a refusal to exchange though often requested, im- plies an offer and ability to give the thing called for by the requested exchange;' an allegation that a married woman was owner of stock in a corpoi'ation implies that she had capacity to hold it f and an allegation that an act was done implies the existence and use of the essential means for doing it effectually.' But facts necessarily implied in an allegation of a con- clusion of law are not sufficiently alleged thereby/ be- cause an allegation of a conclusion of law is itself insuffi- cient. Marie vs. Garrison, 83 N. Y., 14, 28, rev'g 45 Super. Ct. {J. '(& S.), 157. (Andrews, J., says : " What is imphed in an averment is on demurrer to be taken as if the thing implied is directly averred; and an argumentative pleading is not for that reason demurrable.) 'Bundy vs. Cocke, 128 U. S., 185; s. c, 32 L. ed., 396; 16 Wash. L. B., 810, 9 Supm. Ct, 242, 5 R. R. & Corp. L. J., 346. (So held in an action against her for an assess- ment on the stock.) ' Sac County vs. Hobbs, 72 Iowa, 69 ; s. c, 33 North West. Rep., 368. (Allegation that note by defaulting outgoing county treasurer was delivered on agreement that it should take the place of his bond, implies that the agreement was with the board of supervisors, for no others had authority to so agree.) Partridge vs. Badger, 25 Barb., 146. (Allegation in a complaint that certain drafts were accepted by a cor- poration, by their treasurer, includes an averment of authority to the treasurer to accept the drafts ; inas- much as the company could not accept by him unless he had such authority. What is necessarily under- stood, or implied in a pleading, forms part of it as 46 Abbott's Brief on the Pleadings. Demurkbk. [§ 50. much as if it were expressed. [Citing 7 N. Y., 478 ; Steph. on PI, 220; 1 OUtt. PI., 640; 2 Camp., 604; Chitt. on Bills, 585.] ) Nelson vs. Eaton, 26 N. Y., 410 ; s. c, 16 Ahh. Pr., 113 ; rev'g 7 Ahh. Pr., 305, and affi'g 15 How. Pr., 305 ; and holding that in an action by an assignee of assets of a corporation, if the transfer to him can be presumed le- gal, the complaint need not aver the directors, by reso- lution, authorized the assignment, as prescribed by statute. -*■ s. p., Frets vs. Frets, 1 Cow. {N. Y.), 335. A plea to the declaration on a bond for performance of an award, that the defendants, by a writing under seal, revoked the power of the arbitrators before the award was made, need not aver notice to the arbitrators or the opposite party ; for without notice the deed could not have amounted to a revocation. Syfers vs. Bradley, 115 Ind., 345, 15 West, 306 ; s. c, 17 N. East., 619. (Holding that an allegation that a chattel mortgage was in due time recorded in the proper office implies that it had been first duly acknowledged for record.) Eoberts vs. Wabash, etc., Ey. Co. (Mo., 1886), 3 West. Pep., 783. (So held, dispensing with an allegation that a charter had been accepted, because the complaint al- leged that the company had succeeded to the rights, privileges and immunities, and become bound by the liabilities of its predecessor.) ' Hofheimer vs. Campbell, 59 N. Y., 274. (The omission to allege a necessary fact cannot be supplied by presump- tion even where the legal conclusion is alleged. If any, presumption arises, it is against the existence of the lact not alleged, because we may infer that the party stated his case as favorably as possible for himself. Chuech, Ch.J.) [But in People ex rd. Crane vs. Eyder, 12 N. Y., 433 (action in the nature of quo warranto), where the com- plaint alleged that an election was legally held pursuant to statute for the election of a county judge, to dis- charge the duties of said office from the first day of January, 1852, for the term of four years, — hdd, under the liberal construction of pleadings required by the Code, a sufficient allegation of the time when the elec- tion was held, since it necessarily imported that the election was held on the day fixed by statute, of which the Court would take judicial notice. Judgment sus- taining demurrer reversed.] § 53. J Interpretation of Allegations. 47 [See also § 35, as to Fad not alleged ; and § 42, as to lAh- eral constrv/ction,'] § 51. Fact not necessarily implied. — On the other hand, a fact not necessarily implied, although inferable, is not sufficiently alleged, by alleging the fact Avhich sug- gests it. Thus alleging that a boai'd of officers rejected an account because of fraud or mistake is not,,an allegation of the existence of fraud or mistake on their part ; ' and alleging that trustees refused to comply with a demand for a statement of account, does not imply that the refusal was wrongful, for they may have shortly before fur- nished such an account." But an allegation that the ad- verse party represented a material fact to exist may suffice as against that party, in place of an allegation of the exist- ence of the fact.' ' Patten vs. State, McCann, 117 Ind., 585 ; s. c, 19 Norfh East, 303. (Mandamus.) s. P., Williams vs. Ins. Co. of N. A., 9 How Pr. {N. Y.), 365. (Allegation of furnishing proof of interest not equiva- lent to an allegation of the necessary interest to satisfy the statute against wager contracts.) Fowler vs. N. Y. Indemnity Ins. Co., 26 N. Y., 422, rev'g 23 Barb., 143. (Allegation of lawful ownership of policy and claim thereon not equivalent to alleging insurable interest.) " Magauran vs. Tiffany, 62 How. Pr. {N. Y.), 251. (Van YoEST, J. holding that a pleading cannot be sustained upon implications unless they of necessity follow from what has been alleged.) Coster vs. Isaacs, 16 Abb. Pr. {N. Y.), 328 ; s. c, 1 BoU. 176. (That married woman who carried on a separatebusiness represented that the contract was made for its use.) § 52. Fact pres^imed hy la/w from what is alleged. — If a party has alleged all that he is required to prove in order to establish his case, omission to allege facts which are presumed therefrom as matter of law is not ground of demurrer if the pi'esumption be conclusive.' 48 Abbott's Brief on the Pleadings. Demurrer. [§ 52. And it is tlie better opinion that the same rule should apply, though the presumption be not conclusive, if it be a legal presumption, such as it would be error to dis- regard on proof of the facts which have been alleged. [This is not so miach a rule of pleading (although the lan- guage of many of the cases so treats it), as a reason for dis- regarding a formal defect when the matter not fully alleged is unquestionably implied. In the application of this reason consideration may be due to the question whether the fact is directly or only collaterally involved, by the use which the pleader seeks to make of it ; and also whether the action or defence is penal in its nature.] For conflicting cases see McCormick vs. Pickering, 4 N. F.,276. (Presumption of regularity of proceedings; and that paper alleged to have been filed and proceeded on was presented to the Court.) Jenkins vs. Yan Schaack, 3 Paige {N.Y.), 242. (Allegation of seizin in common, in partition, implies possession.) Addington vs. Allen, 11 Wend. {N. Y.), 374; rev'g 1 id., 9. (Holding that at common law the facts which will after verdict be presumed to have been proved are those which, though entirely omitted to be stated in the com- plaint, are so connected with the facts alleged that the facts alleged cannot be proved without proving the facts not alleged.) Whitehouse vs. Moore, 13 Ahh. Pr. (N. Y.), 142. (Holding that since one who employs a broker is presumed to deal with reference to the custom of brokers, whether known to him or not, it is unnecessary in a complaint by a broker against his principal, to allege the latter knew of the existence of a custom on which the action is founded.) Tileston vs. Newell, 13 Mass., 406. (Where, in contem- plation of building a dam, it was covenanted that a new mill should be conveyed to the plaintiff within sixty days after the old mill had stopped, — held, that an averment in a declaration on such agreement that a dam was built below the old mill sufficiently showed that the old mill had been stopped, since it was a necessary inference that the water was fyrevented from passing above it. Demurrer overruled.) Lee vs. Ainslie, 4 Abb. Pr. {N. Y.), 463. (In an action against maker and endorser of promissory note, the complaint contained an averment that the note for § 52.] Interpretation of ALLEOATibkk I " r 4S value received lawfully came to the possession of these plaintiffs. Hdd, a sufficient averment of title in plaintiff. Demurrer frivolous ; order affirmed. Foulks vs. Foulks, 6 N. T. Supp., 112. (In an action for a legacy, an allegation that the will was proved three years before suit implies, as against demurrer, that let- ters were issued at the time.) Cowper vs. Theall, 4 N. Y. State Bep., 674 ; s. c, 26 N. Y. Weekly Dig., 73. (Holding that performance on the plain- tiff's part of delivery by him, made a condition in the contract on which he sues, is sufficiently alleged if plainly inferrible from other allegations, as that the thing was in defendant's possession.) Daniels, J., said: "An argumentative, or inferential, averment is permitted by the practice unless a motion be made more for an order requiring the complaint to be made moie definite and certain, and whatever may be inferred logically and directly from the complaint is, in judgment of law, contained in it." Chambers vs. Hoover, 3 Wash. T., 107 ; s. c, 13 Paxiif. Rep., 466. (Forcible entry and detainer. Turner, J., says : " As against a demurrer, the office of which is to raise a substantial issue on the law of the case, and not on the law of practice and pleading, evidentiary facts, and even inferences from averments amounting to mere conclu- sions of law, will be considered in the pleader's favor.") Earnmoor vs. California Ins. Co., 40 Fed. Bep., 847. (Ad- miralty : seaworthiness being presumed need not be alleged. Brown, J., says: "The primary rule in plead- ing is that what must be averred must be proved ; and conversely, that what the law presumes and need not be proved, need not be averred ; also, that the plaintiff need not aver what more properly comes from the other side. 1 Ghitt. PI, *221, *222. When, then, it is deter- mined that no proof of seaworthiness need be given, all reason for requiring an averment of seaworthiness in the libel disappears. The defendant, if he wishes to raise that issue, can do so by his answer with equal convenience, and more properly ; and this rule, in ad- miralty practice, tends to simplify the pleadings, to dis- pense with needless technicalities, and to promote cer- tainty as to the real issues intended to be tried. All the references in adjudged cases to the need of averring seaworthiness proceed upon the supposed need of sup- plying some prima facie evidence of it. When the legal E resumption dispenses with such proof, it should be eld to dispense with the averment also ; and, as I have said, this rule is a desirable and beneficial one in prac- 50 Abbott's^eTef os the Pleadings. Demukkee. [§ 53. tice." [Citing Guy vs. Insurance Co., 30 Fed. Rep., 695.]) Botsford vs. Dodge, 65 Hoiv. Pr. {W. Y.), 145. (Action on individual liability : an allegation that the corporation is duly organized and existing, does not thereby suf- ficiently imply the existence of any number of trustees, although the statute requires three or more.) {Contra, Lorillard v. Clyde, 86 N. Y., 384] 1 GMtt. PI., 16 Am. ed., 411. (Saying : " It does not appear necessary to state the formal description of damages in the declaration, because presumptions of law are not in general to be pleaded or averred as facts. There- fore, though it is usual, in an action on the case for calling the plaintiff ' a thief,' to state that by reason of the speaking of the vpords the plaintiff's character was injured, yet that statement appears unnecessary, because it is an intendment of law that the plaintiff was injured by the speaking of such words." [Citing Hutchinson vs. Granger, 13 Vt., 386.] ) Maguiar vs. Henry, 84 Ky., 1, 12; s. c, 4 Am. St. Pep., 182. (Presumption that officer did his duty ; and statute shifting burden to prove omission, upon defend- ant, does not supply omission of one pleading a tax title, to allege assessment, and preliminary steps to to be valid sales.) [The reason assigned is that the statute as to plead- ing requires the facts constituting the cause ®f action stated.] In applying this rule it should be remembered that the presumption that the pleader intended to state a sufficient case, although it will aid interpreting an am- biguous allegation in a sense favorable to his case, will never supply an omitted allegation. § 53. Presumption of continuance of fact. — The rule that a fact shown once to have existed is presumed to have continued until the contrary is shown, is a rule of evidence and not of pleading ; and where the specific time of a fact is material, an allegation that it existed at a, previous time is not made sufficient by that presumption. Wilkinson vs. Dobbie, 12 Blatchf., 298, 301. (Wallace, J. : " Facts must be specifically stated, and conclusions upon inference or argument are not tolerated.") People vs. Fadner, 10 Abb. N. G., 462. (Criminal case. To an indictment for usury the defendant interposed a 09 § 54. ] Intekpretation of Allegations. ' 51 special plea that a witness before the grand jury was married and became the wife of the accused cm a day named (which was a day previous to the finding of the indictment), and after such marriage the accused lived and cohabited with her as his wife. Held, bad on de- murrer.) Contra, Van Eensselaer vs. Bonesteel, 24 Barb. (N. Y.), 365. (In an action to recover rent by an assignee, the complaint is not defective on demurrer in omitting to allege that after the plaintiff became assignee of the rent he continued to be such owner until suit was com- menced. In absence of any allegation to the contrary this is tiie legal presumption and need not Ije alleged or proved.) Stroebe vs. Fehl, 22 Wis., 337. (Holding that when the law presumes a fact, — as, that a husband and wife who were alive two years ago are still living, — it need not be stated in pleading. Complaint having been dis- missed at trial for insufficiency, the judgment was therefore reversed.) Dunning vs. Ower, 14 Mass., 157. [In an action on judg- ment it was objected that the defendant's plea, alleging execution by the commitment of the debtor, did not show discharge or satisfaction of the debt. Hdd,, that the legal presumption was that the defendant still re- mained in prison, and the plea was sufificient in this respect. Judgment for plaintiff on demurrer to subse- quent pleading.] [This ruling may rest on the principle that satisfaction at any time is in itself a bar ; and therefore the principle stated in the text is not impugned, it being for defendant to show a renewal of the obligation.] § 54. Legal fiction. — Under a statute declaring that a specified fact shall be deemed another fact, or that the latter shall be presumed from the former, — as that a written and unconditional promise to accept a bill before it is drawn shall be deemed an actual acceptance in favor of one purchasing on its faith,' or that payment of a Judg- ment shall be presumed from the lapse of twenty years/ — it is not necessary in equity, nor under the New Pro- cedure, to allege the fact presumed, but the pleader may allege the actual fact, which by force of the statute is equivalent to it. 53 Abbott's Bkief on the Pleadings. Demueker. [§ 55. ' Barney vs. Worthington, 37 N. Y., 112 ; s. c, 4 Abb. Pr. N. Sf, 205. (1 E. S., 768, § 10. The objection taken was that the complaint was insufficient to uphold the judg- ment.) = Malloy vs. Vanderbilt, 4 Abb. N. C, 127, 133. Holding to the rale stated in the text as the rule in equity, but citing Henderson vs. Henderson, 3 Den., 314, as to the contrary at common law. s. p., Walden vs. Craig, 14 Pet. {U. S.),U7. [Under the New Procedure a party has the right always to state the actual facts, and to omit to state any fiction which he cannot swear to the truth of, as a fact.] In Miner vs. Beekman, 50 N. Y., 337, 344, the contrary was indicated in a dictum in an equity case, but the point does not seem to have been much considered, and the error has been corrected by N. Y. Code Civ. Pro., § 378, expressly making the presumption avail- able under an allegation of a lapse of time. § 55. Matters judicially noticed. — It is not necessary that matters of which the Court should take judicial notice should be alleged in pleading ; and on demurrer a pleading is to be read as if such matters were stated therein. Walsh vs. Trustees of New York & Brooklyn Bridge, 96 N. Y., 427. (Public statutes may be read as if em- bodied in the complaint.) State, Campbell, vs. St. Louis Ct. App., 97 Mo., 276 ; s. c, 10 South West. Bep., 874. (To raise a constitutional ques- tion, a pleading need not set out the sections of the Constitution, nor refer to them by numbers.) [See also § 36.] [As to what the Court may judicially notice, and the rule of United States Courts, see Brief on the Facts, p. 142, § 383, and particular subjects in Index there, p. 295.] § 56.] Gekekal Frame and Sufficiency of Allegations. 53 GENERAL RULES, APPLICABLE ON DE- MURRER, AS TO THE FRAME AND SUFFICIENCY OF ALLEGATIONS. [These rules, though most frequently invoked on demurrer for insufficiency, are stated here because occasionally appli- cable under demurrers assigning other grounds.] § 56. Directness of allegation. § 63. General limited by specific alle- 57. — technical words not necessary. gations. 58. — information and belief. 64. General averment of negative. 59. —recital — "whereas.'' 65. Indefiniteness and uncertainty. 60. — videlicet. 66. — sometimes fatal. 61. Obiection to mode of statement 67. Omission of formal allegation re- not available. quired by rule of Court. 63. Generality. 68. Mixed question of law and fact. § 56. Directmess of allegation. — An allegation must be, in form or in substance, a direct statement of the matter necessary to be presented. A statement is bad on demurrer if so framed as to evade the responsibility of a direct allegation ; such as stating a fact with the qualification "as it was alleged" ' or, plaintiffs "have heard and so charged,"" or that "de- fendant will prove the following facts," etc' But a direct allegation otherwise sufficient is not ren- dered bad on demurrer by adding a refei-ence to public records or competent documentary evidence, as by alleg- ing that the fact is so and so, as "is shown by" such documents.* Byington vs. Saline County, 37 Kans., 654 ; s. c, 16 Pac. Bep., 105. (The allegation here was, " said money, as it was alleged, not then being in the county treasury, but having been, by the acts and order of the board of county commissioners and county treasurer, appropri- ated and paid out and expended by and for said county of Saline." Held, bad on demurrer. The Court said : 54 Abbott's Bkibf on the Pleadings. Dbmuekek. [§ 57, " It devolved on the plaintiff to state facts, and not & mere matter of hearsay which some one else may have regarded as a fact." ' Williams vs. First Presb. Soc, 1 Ohio St., 478, 504. (Suit in chancery.) Egremont vs. Cowell, 5 Beav., 620. (Bill to redeem stat- ing, as an excuse for not joining representatives of de- ceased joint lender, " that the defendant G. alleged, and plaintiff believed the fact to be, that " the money was lent by the two as trustees, and plaintiff was ad- vised that the right to the money survived to G.) ' Lewis vs. Kendall, 6 How. Pr. {N. Y.), 59, 64 ; s. c, 1 Code B. N. S., 402. (Statement that " defendant will prove on said trial in justification the following facts and cir- cumstances, that is," etc., held, not an issuable allega- tion.) [So far as this case held that defendant cannot avoid without confessing, it must be deemed overruled.] Ashbey ■2;s. Ashbey, 41 La. Ann., 102; s. c, 5 So., 539. (An averment by the pleader that, in the same matter, be- tween the same parties, but in a former suit and in another court, he had pleaded prescription, is not suffi- cient as a plea in the present case.) ' Boyer vs. Boyer, 113 U. S., 689, 701. (Action to enjoin tax commissioners from levying an unequal tax. Sev- eral of the material allegations were expressed thus : " That for the year 1881, as is shown by the public report and the books of the auditor-general of Penn- sylvania, the sum of," etc. " That it appears, as is shown by the books and published report of the secretary of internal affairs for the year 1881, that the total valua- tion," etc. " That for the same year, as is shown by the i)ooks and published reports of the auditor-general, a tax was paid into the state treasury," etc. Held, error to sustain demurrer. The demurrer, of course, admits these allegations of fact to be true. Their materiality is not affected by the circumstance that they are stated to appear, also, upon the books and published reports of the auditor-general and the sec- retary of internal affairs of Pennsylvania.) § 57. — technical words not necessary. — The word "al- leges" or "avers" is not essential.' But language which, imports opinion rather than assertion of fact is wholly insufficient." § 58.] GeXEKAL FEAilE AND SUFFICIENCY OF ALLEGATIONS. 55> ' Jolinson vs. Helmstaedter, 30 N. J. Eg., 124. (A plead- ing is STlfficient on general demurrer, although the word " charge" is used, if it is evident that the pleader in- tended to "allege" or " aver" the fact.) " Carter vs. Lyman, 33 3Iiss., 171. § 58. — ivformation and belief. — A direct allegation of a fact may be expressed to be made " upon information and belief ; " ' and is not on that account bad on demurrer even when the fact so stated may be presumed to be within the personal knowledge of the party pleading." At Common Law and in Equity,' an allegation that the party is informed,' or that he is advised and believes/ or is informed and believes," or even that the adverse party alleges and the party pleading believes' the fact to be so and so, is bad on demurrer. Under the New Procedure the uncertainty resulting 'from using such informal statements, instead of a dii-ect statement upon information and belief, is not regarded as ground for demurrer.* And an allegation which is in itself direct, is not rendered bad on demurrer by being introduced by a state- ment of information and belief with the words " and he therefore alleges." ° ^ Lucas vs. Oliver, 34 Ala., 626 (below cited). Leavenworth vs. Pepper (C. Gt, E. D. Mo.), 32 Fed. Bep., 718. ° N. Y. Marbled Iron Works vs. Smith, 4 Duer {W. Y.), 362. (Held, that a motion to dismiss was properly denied.) ° Lord Uxbridge vs. Staveland, 1 Ves., 56. (Bill to discover an assignment of a lease, stated that the plaintiff had been informed that defendants were aissignees of a lease wherein there was a covenant that the lessees should grind all their corn at plaintiff's mill. Meld, bad on demurrer on the ground that plaintiff had not charged that defendants were assignees : it was not sufficient to allege that plaintiff had been informed that defend- ants were assignees, but that fact must be positively averred, as in a declaration at law.) 56 Abbott's Bbief on^ the Pleadings. Demuerbr. [§ 58. s. p., Story's Eq. PI, 2Sl. ' Cameron vs. Abbott, 30 Ala., 416. 'Jones vs. Cowles, 26 Ala., 612. (Allegation that com- plainant is advised and believes that defendant did, etc., is not enough. Bill dismissed.) ° Lucas vs. Oliver, 34 Ala., 626. (An allegation that com- plainant "is informed and believes" that a certain material fact exists, is not equivalent to an averment of the existence of that fact; but an averment of the existence of the fact, " as complainant is informed and believes," is sufficient. "Where the equity of a bill rests on the existence of one of two facts, which are stated disjunctively, and one of which is not sufficient to uphold the bill, the averment is insufficient. 'Egremont vs. Cowell, 5 Beav., 620; Story's Eq. PI, 243. ' Stoutenburg vs. Lybrand, 13 Ohio St., 228. Under §§ 85, 92, 114 of Ohio Code, providing that allegations of a pleading are to be expressed in ordinary language and to be liberally construed, an objection that the defendant pleaded that " he is informed and believes " the facts alleged, cannot be raised by demurrer; the proper remedy is a motion to strike out. Judgment reversed. Howell vs. Fraser, 6 Soiv. Pr. {N. T.), 221. Bement vs. Wisner, 1 Code R., N. S. (N. Y.), 143. Eadway vs. Mather, 5 Sandf. {N. Y.), 654. (In the three foregoing cases the allegations were that the party believes, etc.) Fry vs. Bennett, 5 Sand/., 54 ; s. c, 9 N. Y. Leg. Obs., 330 ; less fully 1 Code R., N. S., 238. (Allegation of fact, adding " as the defendant has been informed and believes.") "Wells vs. Bridgeport, etc., Co., 30 Conn., 21&, where an allegation that the petitioner " is informed and verily believes, and thereupon avers," etc., was held a direct and positive averment. Borrowe vs. Milbank, 5 Abb. Pr. {N. Y), 28. Davis vs. Potter, 4 Hoio. Pr. (N. Y.), 155 ; s. c, 2 Code R., 99. [^Contra, Exp. Eeid, 50 Ala., 439. (Application for pro- hibition, alleging that complainant is informed and believes, and therefore states, not sufficient.) ] So an allegation that certain representations set forth were " false, as deponent has since learned," may be re- garded as a positive allegation of falsity, and not on in- formation and belief. Cummings vs. WooUey, 16 Abb. Pr., 297, note. § 59.] General Fkame and Sufficiency of Allegations. 57 McKinney vs. Koberts, 68 Cal, 192 ; s. c, 8 Pacif. Rep., 3. (Slander. Allegation that, as plaintiffs are informed and believe, defendant spoke, etc. Error to sustain demurrer.) § 59. — recital ; '■'■ whereas^ — ^In general, a statement of necessary facts, constituting a part of the cause of ac- tion, as distinguished from a matter of inducement, if not made directly but by way of recital, is bad on de- murrer. But this rule does not apply, either to the promise or the consideration, in a common count in as- sumpsit.' Matter of inducement may be stated parenthetically or introduced by " whei'eas." ' ' Sheppard vs.Peabody Ins. Co., 21 West V., 368 ; s. c, 12 Ins. L. Jour., 817. Geben, J., says : " It is unquestionably true that it is a general rule of pleading that whatever facts are necessary to constitute the cause of action should be directly and positively stated in the declara- tion, and not by way of recital ; but though this rule be apparently violated, it has been expressly decided by this court that if in assumpsit, in the common indebi- tatus count, the promise is stated after a whereas, though the promise is the very gist of the action, yet such a count so framed will be held, good on demurrer. See Burton & Co. vs. Hansford, 10 W. Va., 470. This conclusion was reached because this was the manner in which the judges of England had prescribed for such a count in an action of assumpsit ; and they decided that such a mode of stating the promise in such a count was good, independently of their having pre- scribed this as its proper form. And while the Virginia courts had repeatedly sustained demurrers in other forms of action, because necessary facts were not stated in the declaration positively, but by way of recital, as after a whereas, yet they had never held that a de- murrer to a count in a declaration in irviebitatiis assump- sit would be defective because the promise was stated after a whereas. ... As the promise is the very gist of the action of assumpsit, it would seem to follow that if we permit it to be thus stated after a whereas, we could not consistently hold that in such a count the consideration could not be stated after a whereas ; es- 58 Abbott's Brief on the Pleadings. Demurrek. [§ 60, pecially when the forms of common counts, as pre- scribed by the English judges, not only stated the promise after a whereas, but also the consideration." [Citing Rob. Forms, 550, 551, 554.] At common law, it is sufficient in a declaration to allege a deed or other instrument, by way of recital, though in a plea it is not. Wells vs. Query, Litt. (Ky.), SeL Cos., 210 ; 1 Ghitt PI, 16 Am. ed., 309, 310. " 1 CMtt. PI, 16 Am. ed., 296. § 60. — videlicet. — A videlicet cannot increase or diminish the intrinsic significance of the preceding mat- ter, but may limit the application thereof, by showing the meanino; of words used there. If it is repugnant in substance to the preceding mat- ter it must be rejected as surplusage. If it merely particularizes what was general, in the words preceding, they may be construed together. State vs. Brown, 51 Conn., 1. (Allegation of sale of " spir- ituous liquor, to wit, . . . beer." Held good, as an alle- gation of a sale of intoxicating beer.) [The old illustration is, — to say " his heirs, viz., heirs of his body," is good ; but to say " all his land in A., viz., two acres," when he has three, will pass the three.] § 61. Objection to mode of statement, not available. — A pleading is not bad on demurrer for insufficiency, if the defect objected to is not an omission of any necessary fact, but only a deficiency in the mode of stating some fact. Bethel vs. Woodworth, 11 OUo St., 393, 396. Harnish vs. Bramer, 71 Cal., 155 ; s. c, 11 Pacif. Sep., 888. (Bev'g for error in sustaining, demurrer, where the essential facts were all alleged, although defec- tively or improperly.) [See §§ 65, 66, as to Indefiniteness and uncertainty.] § 62. Generalit]/. — The general rule that wherever a subject comprehends a multiplicity of matters, generality § 65. J General Feame anb SusFiciEifCT of Allegations. 59 of pleading is allowed/ is to be taken with the qualifica- tion that where there is anything specific in the subject, though consisting in a number of particulars, they must all be enumerated." ' 1 Chitt. on PL, 16 Am. ed., 346. ' Van Ness vs. Hamilton, 19 Johns. {N. Y.), 349 ; Cooper vs. Greeley, 1 Den. {N. Y.), 347. (Justification of defama- tion.) People vs. Manhattan Co., 9 Wend. {N. Y), 351. (Grounds on which a forfeitxire of a charter was sought.) [Whether the remedy is now, in all cases, motion. Query ?] § 63. Ge)ieral limited hy specific allegations. — If a gen- eral and specific allegations as to the same matter are combined, the general will be referred to and construed by the specific ; and will be insuflficient if the specific allegations are insufficient,' even though it be such that it would have been sufiicient had it stood alone. Story's Eq. PI, 32 (citing Ellis vs. Colman, 25 Beav., 662). [See also §§ 33, 34, above, as to General allegation being affected by details.~\ § 64. General a/verment of negative. — Where a uep'a- tive has to be alleged, a general averment is ordinarily sufficient. Ohio, etc., Ey. Co. vs. Walker, 113 Ind., 196 ; s. c, 15 North East. Eep., 234. (Negligence : allegation that plaintiif was not guilty of negligence on his part, sufficient. The Court say : " It is evident that any other rule would be practically incapable of enforcement; for a negative fact can seldom be alleged, except generally and by way of denial, since any other course would require a process of exclusion and elimination that would lead to an almost endless pleading.") § 65. Indefiniteness and uncertainty. — Under the New Procedure, indefiniteness and uncertainty are not reached by a demurrer if the language fairly admits of a construc- tion that will sustain the pleading.' 60 Abbott's Bkief ojj the Pleadings. Demurrer. [§ 65. Otlierwise under the Equity Practice ; ' but a neces- sity for discovery disclosed by the bill excuses the defect." 'Jossey vs. Stapleton, 57 Ga., 144. (The objection that the cause of action is not set forth with sufficient clearness or distinctness cannot be raised by a motion for non- suit. If the objection is well founded, it may be a good cause for special demurrer or objection to evi- dence.) Blake vs. Everett, 83 Mass. (1 AUen), 248. Mills vs. Eice, 3 Neb., 87. Insufficiency of pleading as to certainty, precision, and consistency of allegation which does not amount to such an absolute omission as to con- stitute no ground of action or defence, must be taken advantage of or objected to by motion under the pro- visions of the Code and can afford no ground for demurrer or assignment of error. [Citing 8 Ohio St., 296.] Action for breach of covenants of warranty: judgment on demurrer reversed.) Lorillard vs. Clyde, 86 N. Y., 384, 889. (Andrews, J., says : " On demurrer, all reasonable intendments are indulged in support of the pleading demurred to. The complaint here is in some respects indefinite and un- certain, but the remedy for these defects is by motion, and not by demurrer.") Berney vs. Drexel, 33 Hun {N. Y.), 34 ; reaff'd on reargu- ment, id., 419 ; and affg 63 How. Pr., 471. (Holding that pleadings are not now to be strictly construed against the pleader ; and averments which sufficiently point out the nature of the pleader's claim are suffi- cient, if under them, upon a trial of the issues, he would be entitled to give all the necessary evidence to estab- lish the claim.) Valley E. Co. vs. Lake Erie Iron Co. (Ohio, 1888), 1 L. R. A.,' 410. [Otherwise, under the California code, of a pleading " ambiguous, unintelligible, or uncertain." So, in some other states (see § 119), uncertainty is a separate ground of demurrer; but not available under a demurrer mere- ly for insufficiency. Palmer vs. Utah & N. E. Co. {Idaho, 1887), 13 Pac. Rep., 425.] 'Eyves vs. Eyves, 3 Ves., 343. (Bill for discovery and de- livery of title deeds, possession of estates and account. The bill stated generally that, under some deeds in the custody of defendants, plaintiff was entitled to some interest in some estates in their possession. Defend- ants demurred, objecting that the bill was one of those §66.] General Frame and Sufficiency of Allegations. 61 vexatious fishing bills, and that it was so vague and uncertain that defendants could not plead to it, and must discover all deeds relating to the estates. The Master of the Rolls allowed the demurrer, and gave plaintiffs leave to amend.) ' Towle vs. Pierce, 53 Mass. (12 Met), 329. (Complainant filed his bill for a partnership accounting, alleging that defendant and others named had been his partners, and that they took a certain contract for work, and that complainant had never received all his share of the pay, but that defendant had received more than was due him sufficient to pay complainant, the others having received their full amount ; that more than $800 was due complainant, and he retained implements worth nearly $1000 ; that all books and papers were in de- fendant's hands, or within his reach ; and praying for discovery and a decree for payment. Held, that as all the books and accounts were in defendant's hands, de- fendant's demurrer, on the ground of uncertainty, in that neither times, sums, nor transactions were stated with definiteness or particularity, must be overruled.) Wormald vs. De Lisle, 3 Beav., 18. (Plaintiffs, assignees of a bankrupt, alleged that, previous to the bankruptcy, " certain dealings and transactions took place between the bankrupt and defendant," and that, by virtue of " certain agreements" for leases, the bankrupt was pos- sessed of leasehold houses specified ; that, in the course of such transactions, " certain loans" were made by de- fendant to the bankrupt, and the bankrupt, " as it was alleged by defendant," made " some lease" of the premises to defendant, and defendant had entered and received the rents ; that plaintiffs could not discover with certainty the amount of the loans nor the terms of the lease, and prayed a discovery, etc. Held, a de- murrer to the bill for uncertainty must be sustained.) § 66. — the same, — sometimes fatal. — A complaint is bad on demurrer whicli does not state the facts with suf- ficient definiteness and certainty to enable the Court to grant at least some part of the relief demanded, upon proof or admission of the facts contained in it. [This was the rule in equity ; and is the same under the New Procedure, for the obvious reason, that if the demurrer be overruled, and defendant does not answer, the Court can 63 Abbott's Beief on the Pleadings. Demurrer. [§ 67. give no other relief tliaii is demanded, and if it could not give that, it ought not to overrule the demurrer.] Tallman vs. Green, 3 Sand/. (N. Y.), 437. (Bill praying defendant might be decreed to satisfy a quit-rent and have it cancelled, but not describing it with any cer- tainty, nor stating its amount, and how and when pay- able, nor whether the owner of the charge would consent to release it, held therefore bad on demurrer.) But in equity a demurrer on the ground of uncertainty, irrelevancy, etc., must point out what parts are ob- jected to and why. Brady vs. Standard Loan Asso. {Pa., 1884), 14 W. N. C, 419. Moyer vs. Livingood, 2 Woodward (Pa.), 317. § 67. Omission of formal allegation required iy rule of Court. — The omission of a formal allegation required by rule of Court, — sucli as that required in partition, to the effect that the parties do not own other lands in com- mon,^ — or that required in divorce, to the effect that the' act was committed without connivance, etc.,^ — or that formerly required in chancery as to the amount in con- troversy,^ — is not ground of demurrer. ' Pritchard vs. Dratt, 32 Hun {N. Z), 417. " Van Benthuysen vs. Van Benthuysen, 17 N. Y. State Bep., 978 ; s. c, 2N. Y. Supp., 238 ; 15 Civ. Pro. P., 234. ' Batterson vs. Ferguson, 1 Barb. (W. Y.), 490 ; and see Mitf. PI, c. 2, § 2 ; 1 Ban. Gh. Pr., 412, 625. [But compare cases under Befining the issue.'] § 68. Mixed question of law amdfact. — An allegation of a matter which is a mixed question of law and fact, so that it is not a question for the jury exclusively, is insufficient on demurrer. Clay Fire & Mar. Ins. Co. vs. Wusterhausen, 75 III., 285. (Allegation that a change took place in the title to the property insured, by voluntary transfer and with- out consent of the defendant, and thereby the policy became void.) § 69.J For Insufficiency; Assigning Ground. 63 [Such allegations are however sanctioned in other juris- dictions. The above rule seems too broad. A mixed question of law and fact is a question of fact which re- quires instruction, as to its limits, by the Court. It is not a conclusion of law within the rule that an allega- tion of a conclusion of law is bad on demurrer.] [Compare Teese vs. Phelps, Mc All., 17, holding that whether a given improvement is patentable, it being objected that it is neither an art, manufacture, nor composition, is a mixed question of law and fact, not to be decided on demurrer.] VII. DEMURRER FOR INSUFFICIENCY. 1. Form op assigning gkound, §§ 4. Objections touching the natube 69-71. or substance of the cause op 3. Objections relating to parties, action or relief, g| 89-123. §§ 72-81. 5. Objection that the action is 3. Objections involving the form premature, or that a defence of the pleading demurred to, is disclosed, §§ 124-128. §§ 82-88. 6. Particular subjects of allega- tion (alphabetically arranged), §§ 139-365. 1. FoKM OF Assigning Ground. [As to how far the statutory language is necessary under the Code see § 2, etc.] § 69. Right to raise any objection to § 70. Equivalent to want of equity, cause of action, 71. Specification of defect. § 69. Hight to raise any objection to cause of action. — Under a demurrer assigning this ground in the words of the statute without specifications, counsel may on the ar- gument raise any objection which shows that a complete cause of action is not shown, or that a complete defence is shown. 64 Abbott's Brief on the Pleadings. Dbmuerbe. [§ 70, Nellis vs. Be Forest, 16 Barb. (N. T.), 61. Compare, as to Miciiigan, where a demurrer must specify every defect relied on, — Adrian Water Works vs. City of Adrian, 64 Mick, 584; s. c, 7 West. Rep., 838 ; s. c, 31 North West., 529. § 70. Equivalent to want of equity. — In the. United States Court, in equity, a demurrer assigning as ground that the bill does not state facts sufficient to constitute a cause of action (as if the action were under the Code) avails as the equivalent of a demurrer for want of equity. Nicholas vs. Murray, 5 Sawy., 320. (Holding that it can only so avail.) [For other cases on Form of assigning this ground see §• 2, etc.] § 71. Specifcations of defect. — If a demurrer assigning as its ground that the complaint does not state facts suf- ficient to constitute a cause of action, qualifies that as- signment by specifying the defect relied on, the demur- rant has not the right on the argument to raise any other objection. Nellis vs. De Forest, 16 Barb. {N. Y.), 61. 2. Objections Relating to Paeties. § 73. Want of capacity to sue. § 77. — application of the rule to hus- 73. Not the proper plaintiff. band and wife. 74. — State practice in United States 78. — form of assigning ground. Court. 79. — of defendants; insufficiency 75. Defect of parties plaintiff. against one demurring. 76. Improper joinder, — of plain- 80. Insufficiency as against iW^- co-defendant not demurring. 81. Defect of parties defendant. § 72. Want of capacity to sue. — A demurrer on the mere ground of insufficiency does not enable the demur- rant to raise the objection that plaintiff has not legal capacity to sue. § 73.] Foe Insufficiency; Objections as to Parties. 65 Litchfield vs. McComber, 42 Barb. {N. Y.), 288. (Action by a tax collector. Demurrer only for insufficiency admits plaintiff's legal capacity to sue.) Viburt vs. Frost, 3 Abb. Pr. (N. Y.), 119 ; s. c, as Hobart vs. Frost, 5 Duer {N. Y.), 672. (Action by receiver: objection tbat the appointment of plaintiff appears by the complaint to be invalid, not thus available.) Phoenix Bank vs. Donnell, 40 N. Y, 410. (The want of capacity to sue., e.g. a plaintiff not duly incorporated, cannot be considered.) s. P., Fulton Fire Insurance Co. vs. Baldwin, 37 N. Y, 648 ; Bank of Lowville vs. Edwards, 11 How. Pr., 216 ; Irving National Bank vs. Corbett, 10 Abb. N. G. {N. Y.), 85. American Baptist Home Mission Soc. vs. Foote, 52 Hun {N. Y.), 307. (In an action by several plaintiffs, it was doubted whether a demurrer in this form as to all the plaintiffs would lie, where it was objected that the in- corporation of one of them was not sufficiently alleged.) Van Zandt vs. Van Zandt, 26 N. Y. State Rep., 963. (In- terpleader.) Hafner & Schoen Furniture Co. vs. Grumme, 10 Civ. Pro.. R. {N. Y.), 176. (The omission to state whether the plaintiff is a domestic or foreign corporation, as re- quired by § 1775 of the Code, does not go to the causes of action, and does not render the complaint demur- rable for not stating sufficient facts.) Contra, First Nat. Bank of Northampton vs. Doying, 11 Civ. Pro. R., 61. [For other cases see Demurrer for incapacity, below.] § 73. JVbt the proper plaintiff. — A complaint; whicli shows on its face that the right of recovery on the cause of action alleged is not in the plaintiff but in a third person, is demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Sinker vs. Floyd, 104 Ind., 291 ; s. c, 2 West. Rep., 218. DeWitt vs. Chandler, 11 Abb. Pr. {N.Y), 459. (A presi- dent of an association brought an action in behalf of the society to recover a legacy that had been left to its treasurer. Hdd, as the right of action was in the treas- urer, the complaint should be dismissed for not stating a cause of action.) Mosselman vs. Caen, 1 Hun {N. Y), 647. (If a foreign assignee in bankruptcy has no right to sue here, a com- 66 Abbott's Brief on the Pleadings. Demurrer. [§ 74. plaint setting up his title as such is insufficient and will be dismissed on motion. The Court say " A com- plaint must always show title in the plaintiffs of the subject-matter of the action, or such an interest therein as indicates them to be proper parties to the liti- gation ; otherwise it fails to state facts sufficient to constitute cause of action in favor of plaintiffs against defendants.") Eutland Probate Ct. vs. Hull, 58 Vt, 306 ; s. c, 5 East. Hep. 60. (Objection available on general demurrer at common law.) Carter vs. Carter, 82 Va., 624. (A bill in equity is demur- rable if it fails to show in complainant an interest in the subject-matter and a proper title to institute a suit con- cerning it.) s. p., Barr vs. Clayton, 29 W. Va., 256. § 74. — State pfuctice in U. S. Court. — State practice allowing actious to be brouglit in the name of the real party in interest,' or in the name of the trustee of an express trust,' is applicable in civil causes (other than in equity and admiralty) in United States Circuit and District Courts sitting in the same State. " Weed Sewing Mach. Co. vs. Wicks, 3 Dill, 261. Arkansas Smelting Co. vs. Belden, 127 U. 8., 379, 387. May vs. County of Logan, 30 Fed. Hep., 250. 'Albany & Eenss. E. Co. vs. Lundberg, 121 U. S., 451. [As to the limits of State practice in U. S. Courts, see §§ 26-30.] § 75. Defect of parties plaintiff. — In equity,' and in the United States Courts/ and under the New Pi'oced- ure,° the omission to Join with a proper plaintiff a neces- sary co-plaintiff is not available under a general demurrer for insufficiency. ' Dias vs. Bouchaud, 10 Faige Ch. {N. Y.), 455. ' U. 8. R. S., § 954. ' N. Y. Code Civ. Fro., § 488, subd. 6. Loomis vs. Tift, 16 Farl. {N. Y), 541. [But the Court may at the trial entertain the objection of the absence of an indispensable party, though not pleaded.] §76.] FoK Insufficiency ; Objections as to Parties. 67 § 76. Improper joinder^ — of plaintiff s. — In equity, the misjoinder of one as a party plaintiff could be reached by a general demurrer to the whole bill for want of equity.' Under those codes which do not make misjoinder of parties plaintiff a special ground of demurrer," if no cause of action is stated in favor of one of the plaintiffs the defendant can only demur as to such plaintiff on the ground that the complaint does not state facts sufficient to constitute a cause of action.' Hodge vs. North Missouri E. Co., 1 B^ll., 104. (Bill to restrain patent infringement, in whicli an heir of the deceased patentee and owner joined with the adminis- trator. Hdd. proper to sustain a demurrer for want of equity, for the joinder of the heir was improper, he having no interest.) [Citing Story Eq. PL, § 509 ; 4 Buss., 225 ; Id., 242 ; Id., 244 ; 3 Paige, 336.] Christian vs. Crocker, 25 Arh, 327. (Bill in equity. If there is a misjoinder of parties plaintiffs, then all the defendants may demur ; but if there is a misjoinder of parties defendant, those only can demur who are im- properly joined.) ' Which was the case with the N. Y. Code of Procedure in force up to 1876. ' Erichtmyer vs. Bichtmyer, 50 Barh. {N. Y.\ 55. (Action to enforce a trust. Held, that if there is a misjoinder of parties, that is, if the facts stated show no cause of action against the defendants in favor of one of the plain- tiffs, the defendants may demur as to such plaintiff upon the ground that the complaint does not state sufficient facts. In such a case the defendant must specify the plaintiff to whom he objects as a party.) s. p., Simar vs. Canaday, 53 iV. Z, 298 ; Eumsey vs. Lake, 55 How. Pr., 340. Peabody vs. Washington County Mut. Ins. Co., 20 Barb. {N. Y.), 339. (Action on policy, by the insured and his assignee. A demurrer to the whole complaint, first for defect of parties, and second because it did not state sufficient facts, should be overruled, if the com- plaint shows a cause of action in favor of one of the plaintiffs, as under the Code judgment may be given for or against one or more of several plaintiffs.) 68 Abbott's Briee' on the Pleadings. Demueeer. [§ 77. Masters vs. Freeman, 17 Ohio St., 323. Berkshire vs. Sliultz, 25 Ind., 523. (Action to redeem from a foreclosure. Where two or more plaintiffs unite in bringing a joint action and the facts stated do not show a joint cause of action in them, a demurrer will lie upon the ground that the complaint does not state sufficient facts. The Court say : " It is proper we should add that the demurrer in such a case will be sufficient if stated in the language of the staiJute, and need not be directed against the particular plaintiff in whose favor no cause of action is shown.") S. P., Eush vs. Thompson, 112 Ind., 158 ; s. c, 11 West. Rep., 236, 13 North East. Eep., 665, and cases cited. [One reason is that a joint cause of action which precludes an individual set-off or counterclaim is a different cause of action from an individual claim.] Contra, — Case vs. Carroll, 35 N. Y., 385. (Defect of join- ing too many as plaintiffs not reached by demurrer.) Contra, to the statement that demurrer need not specify improper joinder, see authorities under note 3. § 77. — application of the rule to Jmshand and wife. — It is the better opinion that under the New Procedure, — which allows married women to sue and be sued as if sole, and judgment to be given for or against one or more of several plaintiffs, — this rule applies to husband and wife suing on a cause of action belonging exclusively to either,' except where the husband, though not a necessary party, is still regarded as a proper party to an action in which his wife is plaintiff." ' Simar vs. Canaday, 53 N. Y., 298. (Action by husband and wife for damages for defendant's fraud in inducing plaintiffs to convey to him. Held, misjoinder of plain- tiffs was not a ground of dismissal against both, if either had a cause of action. In such a case the motion must be specific for the dismissal of the complaint as to the plaintiff in whom no right of action appears.) s. p.. Palmer vs: Davis, 28 N. Y, 242. [ Contra Mann vs. Marsh, 35 Barh. {N. Y.), 68 ; s. Ct, less fully, 21 How. Pr., 372. (When two or more plaintiffs . unite in bringing a joint action, and the facts stated do not show a joint cause of action in them, a demurrer will lie upon the ground that the complaint does not state facts sufficient to constitute a cause of action. So .§78.J FoK Insufficiestcy ; Objections as to Parties. 69 held where a husband and wife brought an action for assault on the wife, and it appeared from the complaint that the wife alone should have brought it.) Followed in Walrath vs. Handy, 24 How. Pr. {N. Y.), 353, (Ac- tion to obtain the construction of a will where the wife was improperly joined.) Farnham vs. Campbell, 34 N. Y., 480. {It seems that if hftisband and wife join in an action concerning the sep- arate property of the wife, demurrer to complaint lies on the ground that it does not state cause of action in the plaintiffs, the husband and wife being regarded in law as one person, and therefore not within the rule allowing the name of the husband to be dropped out of the complaint.) [Eumsey vs. Lake, 55 Hotv. Pr. {JST. T.), 339. (Complaint, by husband and wife, showed a cause of action in the wife only. Defendant's demurrer (assigning both the ground that it did not state a cause of action in favor of plaintiffs and that it did not state cause of action in favor of the husband) was sustained with leave to the wife to amend by striking out the name of the husband.) ^ere the demurrer was sustained as to both, amendments being required by the wife in order to get* rid of the husband.] [Bartges vs. O'Neils, 13 Ohio St., 72. (Action by husband and wife for defendant's deceit in inducing the husband to purchase lands which were conveyed to the wife. Held, the defect that no cause of action was shown in the plaintiffs jointly might be taken advantage of by a demurrer upon the ground that the petition did not state sutlScient facts.) [Mich. Cent. K. Co. vs. Coleman, 28 Mich., 440.] ^ Ohio & Miss. E. Co. vs. Cosby, 107 Ind., 32 ; s. c, 4 West. Rep., 464. § 78. — form of assigning ground. — Where the stat- ute^ makes misjoinder of parties plaintiff a special ground .for demurrer, the objection cannot be raised on demurrer assigning only the ground that facts sufficient to con- stitute a cause of action are not stated.^ ' As in case of the present provision of the N. Y. Code Giv. Pro., § 488. ' Tennant vs. Pfister, 51 Cal, 511. (In California, mis- joinder of parties plaintiff is a special ground of de- murrer, and the objection cannot be raised under a 70 A.BB0T3SS Bkiee on the Pleadistgs. Demukeee. [§ 79. general demurrer that the complaint does not state sufficient facts.) Berney vs. Drexel, 33 Hun {N. Y.), 419 ; s. c, 19 Weekly Big., 419 ; reaff'g 33 Hun, 34 (It appeared from the complaint in conversion that a widow had improperly united with devisees in bringing the action. Held, the objection that the complaint showed affirmatively that no cause of action vested in all the parties plain- tiff, could not be raised by demurrer on such ground ; as misjoinder of parties plaintiff was a special ground of demurrer under the Code.) (The demurrer in this case was general against all the, plaintiffs ; the dicta state that it should have been for misjoinder of plaintiffs, and the specific defect relied on pointed out.) [ Contra, Hynes vs. Farmers' Loan & T. Co., 31 N. Y. State Rep., 136. The decision of this case is in conflict with the preceding, but the point that the demurrer should have been special is not considered in the opinion.] [Whether it could be raised if the demurrer is qualified as objecting that the complaint states no cause of action in favor of the particular plaintiff, Query ? The better opinion is that such a statement is sufficient ; because in effect full notice of the real objection, and in sub- stance exactly equivalent to specifying a misjoinder of that plaintiff.] § 79. Defendants ; insufficiency, as against one demur- ring. — A demurrer for insufficiency by one or more of several defendants improperly joined must be sustained irrespective of the existence of a cause of action against other defendants. Voorhis vs. Baxter, 18 Barb. (N. Y.), 592. (In an action on a firm note against the surviving partners and the representatives of a deceased partner, demurrer for in- sufficiency by the latter sustained where no circum- stances were alleged to raise an equity against them.) s. P., Voorhis vs. Childs, 17 N. Y., 354. (In this case the Court say : " The present action must be regarded as one of a purely legal nature, brought against the sur- vivors on their legal liability. It follows that the executors of the deceased partner who is liable only in equity were improperly made parties.") Edson vs. Girvan, 29 Hun (N. Y.), 422. §81.] For IsrsuFFioiEifCY ; Objections as to Parties. 71 Berford vs. N. Y. Iron Mine, 56 Super. Ct., 236 ; s. c, 4 N. Y. Supp., 836 ; 21 State Rep., 439. Belknap vs. Caldwell, 83 Ind., 14. (In a suit for relief from fraud against several defendants, where as to one of them the complaint fails to show any knowledge of or connection with it, he is not a proper party ; and a demurrer by him should be sustained.) » § 80. — insufficiency as against co-defendant not demnur- ring. — A demurrer for insufficiency by one or more of several defendants properly Joined, cannot be sustained on the ground that the complaint is not sufficient as against another defendant. N. Y. & New Haven E. E. Co. vs. Schuyler, 7 Ahh. Pr., 41 ; s. c, 17 N. Y., 592.. (The mere joinder of too many persons as defendants when there is no misjoinder of subjects is not a ground of demurrer by any one of them against whom the complaint sets forth a good cause of action.) Wood vs. Decaster, 66 Me., 542. Slevin vs. Eeynolds, 1 Handy {Ohio), 2il. Lewis vs. Williams, 3 Minn., 151. (Action of indebted- ness upon contract.) Miller vs. Jamison, 9 G. R Green {N. J.), 41. (To a bill to set aside a conveyance as fraudulent the defendant grantee demurred on the ground, inter alia, of multi- fariousness, in that a mortgagee of such grantee, and cer- tain other persons, were made parties defendant. The chancellor, after holding them to be proper parties, re- marked that defendant grantee could not raise the objection, even had it been valid. The objection could only be taken by the parties themselves.) Jones vs. Foster, 67 Wis., 296 ; s. c, 30 North West. Rep., 697. But the same objection may sustain a demurrer for mis- joinder ; see Nichols vs. Drew, 94 N. Y, 22 ; Edson vs. Girvan, 29 Hun, 422. § 81. Defect of parties defendant. — In equity,' and in the United States Courts,' and under the ISTevs^ Proced- ure," an objection for defect of parties defendant cannot be raised under a general demurrer. 73 Abbott's Brief on the Pleadistgs. Demueeee. [§ 83. At common law the omission to join as defendant a joint obligor (except in the case of judgments, recogni- zances, etc.) was available under a general demurrer.' ' Eobinson vs. Smith, 3 Paige's Ch. (JV. Z), 222, 230. ' U. S. R. S., § 954. " iV^. r. Code Civ. Pro., § 488, subd. 6. ^ Gilman vs. Eives, 10 Pet. {U. S.), 298. But the Court may entertain the objection of the absence of an indispensable party. 3. Objections Involvestg the Foem oe the Pleadinq Demueeed to. § 83. Fact common to several causes of § 86. Separate counts for same re- action or defences. covery. 83. Demurrer, without discrimina- 87. Separate counts presumed to re- tion, to commingled statement. fer to separate transactions. 84. — with discrimination. 88. Verification lacking. 85. Improper division of a single cause of action or defence. § 82. Meet common to several causes of action or de- fences. — Where several causes of action or defences are separately stated in the same pleading, an omission of an essential allegation in one cannot be supplied against de- murrer by reading the missing link from another count ■or defence.' But it is the better opinion that if .a fact common to several causes of action or defences is separately alleged, as if introductory to all,' or if it is alleged in one and •expressly adopted by reference in another,' it is suffi- ciently alleged in each. ' See cases under §§ 21, 22. =" Ronnie vs. Eyder, 28 JST. Y. State Bep., 141. (Action against husband and wife for slander by wife. One numbered paragraph alleged that the defendants at § 83. J Foe Insufficiency ; Objections to Fork. 73 the time of the grievances hereinafter mentioned were husband and wife. Each of three followed numbered paragraphs stated a slander as a separate cause of ac- tion. Held, sufficient, or if not, yet amendable ; and not error to refuse to dismiss the complaint at the trial.) " Goodman vs. Gay, 15 Pa. St., 188 ; s. c, 53 Am. Dec, 589. (Subsequent counts intelligibly referring to time cor- rectly averred in a previous count, held sufficiently to show the time.) Treeland vs. McCuUough, 1 JDen. (JV. Y.), 414 ; s. c, 43 Am. Dec, 685. (Statement, in a later count, of " the same respective amounts and for the same respective considerations in the last preceding count of this de- claration set forth," held, proper and sufficient.) 1 Chit. PL, 16 Am. ed., 373. (Demurrer in such case frivolous. [The reasons for the existence of the main rule are that the time of the Court ought not to be spent in search- ing other parts of the pleading ; and that if one count or defence be struck out, there is nothing to point to. The objection is almost wholly obviated by an intro- ductory allegation, or by express reference, and what- ever inconvenience remains is not good ground of de- murrer, but is matter for prompt motion.] § 83. Demurrer without disGrimination, to cammingled statement. — -A demurrer to a cause of action or defence as a- whole, for not stating facts sufficient, etc., cannot be sustained if tlie statement demurred to contains facts suf- ficient, although thei'e be commingled therewith matter separable in its nature, and intended, but not sufficing, to constitute, a separate cause of action or defence. Hendrickson vs. Pennsylvania E. E. Co., 14 Vroom {IST. J.), 464, abstr. ; s. c, 25 Alb. L. J., 416. Wright vs. Smith, 81 Va., Ill, 779. Eobreeht vs. Marling, 29 W. Va., 765, 769 ; s. c, 2 South East., 827. ("With dictum that the demurrer should point to such parts as are bad.) In Hackley vs. Draper, 4 S^fm. Ct. {T. & C), 614(affi'd in 60 N. Y., 88, without noticing this point), it was held that new matter introduced into a complaint by amendment cannot be demurred to alone, but the demurrer must be to the whole complaint, or some one of the causes of action thereon. 74 Abbott's Brief ok the Pleadiis^gs. Demureer. [§ 84. § 84. — with discrimination. — The commingling in one statement of several causes of actions or defences cannot prevent demuri'ing to either with the same effect as if separately stated. The pleader cannot defeat the demurrer by reliance on the defect in his ovrn pleading. Burhans vs. Squires, 75 Iowa, 59, 39 N. W., 181. s. p.. Wiles vs. Snydam, 64 N. Y., 173. § 85. Improper division of single cause of action or defence. — The mistake of a pleader in stating as separate causes of action or defences, facts which are only suffi- cient when combined as a single cause of action, or a single defence, does not render the pleading demurrable but the separation may be disregarded. Hillman vs. Hillman, 14 How Pr. {N. T.), 456. Weeks vs. Cornwall, 89 Hun (JV. Y.), 643, 644; s. c, 9 Civ. Fro., 28, 23 Weekly Dig., 515. s. p., Shook vs. Fulton, 4 Coiu., 424. (Holding that after verdict in favor of defendant on a defence made out thus by combining two pleas each insufficient alone, the objection is cured even at common law.) Norman vs. Rogers, 29 Ai'k., 365. (Error to sustain de- murrer in such case.) Everett vs. Waymire, 30 Ohio St., 308. Contra, Bliss on PI., 121, citing other cases. In Victory Webb Mfg. Co. vs. Beecher, 26 Hun{]V. Y.), 49, it was held that after a demurrer to separate counts of a complaint had been overruled, plaintiff could not on appeal claim that the decision was wrong because the several counts all taken together contained matter con- stituting a cause of action. Davis, P. J., said : "It seems impossible to treat the complaint as containing a single cause of action. By its express allegations it contains several; and if it be true that the separation of them was not in all cases necessary, yet as to some portions it cer- tainly was, and the plaintiff ought not to be heard now to urge his own inaccuracy in making the separations as a ground for defeating a demurrer which adopts and follows his own division and classifications." Compare Andrews vs. Alcorn, 13 Kan., 351. (Holding that although a demurrer might or should have been sus- tained where the pleader wrongly inserted the words. § 86.J For Iksufficiency ; Objections to Form. 75 " 1st cause of action," " 2d cause of action," -when there was in fact but one cause of action, yet if no substan- tial injustice has been done the parties by overruling the demurrer, judgment will not be reversed on. appeal.) § 86. Separate counts for same recovery. — A com- plaint is not demurrable for stating, in separate counts or causes of action, separate grounds for substantially the same recovery, not containing any absolutely incon- sistent allegations, if the causes of action are such as miglit be joined were they not for the same recovery. Ware vs. Reese, 59 Ga., 588. (Assumpsit for the alleged breach of a contract for the sale of land for a fixed price. Plaintiff afterwards added a count on a quantum meruit. Held, on demurrer, that a count on quantum meruit may be joined with one in contract for the same services, etc. ; so that in the event of failure to prove the contract, recovery may be had upon the quantum meruit.) [For other authorities, see § Applications at the Trial, Election. ] [Most of the treatises on pleading contain a statement that this is not allowable under the Codes of Procedure ; but the contrary is now generally held. See note in 24 Ahi. N. C. The practice of compelling plaintiff to elect at the trial even where there is no inconsistency or embarrassment to the defendant, still continues much as at common law ; but it might be restricted within narrow limits if the following propositions are sound, as I believe them to be : I. If there is no absolute in- consistency of fact, such that perjury would be assign- able if the pleading be sworn, the objection, if any there be, must rest on the ground either of " unneces- sary repetition," " indefiniteness and uncertainty," or "misjoinder." II. All right to object for misjoinder is waived by not demurring on that ground. III. Neither unnecessary repetition, nor any indefiniteness and un- certainty which repetition alone can cause, are ground for demurrer or dismissal. IV. In all or nearly all cases, the meritorious ground of objection, if any, is the embarrassment to the defendant in being required to meet unnecessary or incongruous issues ; and his proper remedy to avoid that is by special motion be- fore trial to strike out or make more definite and cer- tain ; and if, instead of doing so, he takes issue on each 76 Abbott's Beief ois the Pleadings. Dbmurrbk, [§ 87. cause of action and goes to trial, lie invites plaintiff to try the issue. After having done this, the only advan- tage that he can insist on as matter of right is, first, to use the allegations in one cause of action as evidence against those in the other, if there be any incongruity ; and second, to ask the Court to direct the jury to find on each cause separately, if they are essentially different in such sense as to require concurrence of the jury on any one separately in order to sustain a general verdict. But, although the defendant may have no right to compel election, the Court has certainly a discretion to refuse to try issues which embarrass each other, or to give such direction as to the order of trial as will practically sever them.] § 87. Separate counts presumed to refer to separate transactions. — If it is possible, and consistent with the allegations of the complaint, that there may have been two separate transactions, to which the otherwise incon- sistent allegations of separate causes of action may Lave been intended to refer, the Court will not, on demurrer, presume the contrary. Castro vs. Uriarte, 12 Fed. Rep., 250, 259. (So holding on demurrer to a complaint setting up a cause of action for false imprisonment, and for malicious prosecution by arrest on the same day.) § 88. Verification lacking. — In chancery, the omis- sion to verify a bill, which by the rules or practice of the • court requires verification, — such as a bill on a lost instrument, — is ground of demurrer." Under the IS^ew Procedure objection to lack of veri- fication must be taken by returning or disregarding the pleading.' ' Findlay vs. Hinde, 1 Pet., 241, 244. (Holding that if not so taken, or otherwise at or before the hearing, it may be deemed waived.) " Abb. New Pr. & F., 439. Otherwise under some statutes requiring sworn denials. § 89.] Insufficiency J Nature and Substance of Cause. 77 4. Objections touching the Nature or Substance OF THE Cause of Action or Relief. A. Nature of Claim. § 89. Theory of case need not be § 96. Allegations involving mistake stated. as to the \a,-w. 90. General rule for sustaining com- 97. Immaterial allegations not re- plaint against demurrer. garded. 91. Informal pleading. 98. Various grounds for same re- 93. Statutory cliange of burden of covery. proof. 99. Alternative grounds. 93. Penal actions. 100. Alternative version and relief. 94. Actions without precedent. 101. — by trustee of a special trust. 95. Allegations stating insufficient grounds with other and suf- ficient grounds. B. Legal or Equitable Cause. § 102. Jurisdiction. § 104. Action for money or chattel. 103. Equitable title. 0. Accounting. P 105, Mutual accounts. § 108. Royalty contracts. 106. Existence of fiduciary relation, 109. Facts showing ground of equi- or necessity for discovery. table cognizance to be special- 107. — Remedy at law. ly alleged. D. No Adequate Bemedy at Law. § 110. Form of demurrer. § 114. What is a "remedy at law." 111. Showing ;[want of adequate 115. What is a "plain, adequate, remedy. and complete" remedy. ' 112. — in case of several grounds 116. "Jurisdiction clause" directly of relief. alleging want of remedy. 113. Assignee. 117. Estoppel against this objection. E. Contract or Tort. § 118. When uncertainty is ground of demurrer. 78 Abbott's Bkief on the Pleadings. Demukkek. [§ 89. F. Demurrer to Belief. § 119. General rule. § 121. — Against co-defendant. 120. Relief against demurrant. 133. Alternative relief. A. Nature of Claim. § 89. Theory of case need not be stated. — A pleader is not bound to state tlie theory of law on which his claim is based. Facts alone must be stated, and if stated in such a manner as to enable the Court to see that they constitute a cause of action or defence, the pleading is not demurrable because it does not state the legal effect of facts. Darrah vs. Boyce, 62 Mick, 480, 29 North West. Sep., 102. (Holding that if the demurrer is general, it will be overruled if the bill can be sustained upon any theory of the case.) Hemmingway vs. Poucher, 98 JSf. Y., 281. (Answer stating facts sufficient on one theory not bad though stated in form to suggest an untenable theory.) [Citing Oneida Bank vs. Ontario Bank, 21 N. Y., 490.] s. p., Chatfield vs. Simonson, 92 N. Y, 209, 218. § 90. General rule for sustaining complaint against demurrer. — A demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of ac- tion is not sustainable except when, admitting all the facts (as distinguished from conclusions of law) which are alleged (even though argumentatively or indefinitely alleged), no cause of action whatever is presented for any part of the relief demanded; or when, with facts showing a cause of action, a complete defence thereto is also sufficiently stated. See cases under sections 91-97 and 119-121, below. § 91. Informal pleading. — Under the New Procedure, a demurrer to a complaint for insufficiency can only be § 92. J lNsui'FiciE]srcT; Nature and Substance of Cause. 79 sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient to sustain a demurrer that the facts are im- perfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred. The complaint on de- murrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are ti'aversable in the same manner as though directly averred. Marie vs. Garrison, 83 JV. Y., 14, 23. (Andeews, J., citing 1 Ghltti/s PL, 713; Haight vs. Holley, 3 Wend., 258; Prindle vs. Oaruthers, 15 N. Y., 425.) Wetmore vs. Porter, 92 If. T., 76, 80 (rev'g decision be- low on demurrer for error in this respect). People vs. Mayor, etc., of N. Y., 8 Abb. Pr., 7 ; 28 Barb., 240. (A complaint is not demurrable for insufficiency if it actually contains elements of a cause of action how- ever iuartificially they may be stated. It is the duty of the Court to analyze the facts disclosed, and if the whole or any part of them can be resolved into a cause of action, the demurrer should be overruled.) s. p., Simpson vs. Prather, 5 Oreg., 86. Morse vs. Gilman, 16 Wise, 504. In Meyer vs. Staten Island Ey. Co., 7 JV. Y. State Rep., 245, the Court say : " In considering the propriety of the demurrer herein, the duty is imposed of marshalling all the facts to be gathered, whether definitely or in- definitely, or argumentatively stated or impliedly averred, or apparent from reasonable and fair intend- ment. The rule springs from a broad spirit of Justice, which must not permit a meritorious cause to be affected by reason of the pleader's obscure or infelicitous methods, or inability to spread out the facts clearly. Obscurity of statement is no longer permitted to defeat a remedy, if one exist, however it may enlarge the labors of the tribunal." § 92. Statutory change of hwrden of proof. — A reme- dial or curative statute shifting the burden of proof from the plaintiff to defendant — in this case as to tax titles — ■ does not relieve the plaintiff from the necessity of alleg- 80 Abbott's Brief on the Pleadings. Demukeer. [§ 93. ing so mucli in his complaiut or petition as is necessary to sliow tliat the right is in him. Maguiar vs. Henry, 84 Ky., -1 ; s. 0., 4 Am. St. Sep., 182. § 93. Penal actions. — A demurrer in a qui tami action for a statute penalty for an offense not made criminal, is to be determined on the principles applicable to civil, not criminal, actions. Fish vs. Manning, 31 Fed. Bep., 340 (patent law : citing U. S. vs. Boyd, 116 U. S., 634, as holding otherwise of a criminal offence.) [As to what is a civil case as distinguished from a crim- inal one, see note in 23 Abh. JV. C, 115.] § 94. Actions without precedent. — A complaint is not to be held demurrable merely because the action appears to be without precedent. ' See cases collected in note in 23 Ahh. N. C, 447 ; for other illustrations Piper vs. Hoard, 107 JV. T., 73, Peckham, J., saying : " If to assume jurisdiction and grant relief in such a case would be to run counter to well-settled rules of equity, that fact would be a suf- ficient answer to the plaintiff's prayer for judgment herein. But if the most that can be said is that the case is novel and is not brought plainly within the limits of some adjudged case, Ave think such fact not enough to call for a reversal of this judgment." Muldowner vs. Morris & Es. E. Co., 42 Hun, 444, 447, Peatt, J., saying : " Whatever may be the technical re- lation of the parties, the plaintiff has made out a case entitling him to relief. It is not fatal to his claim that no precise authOritj'- can be found in this State author- izing such a judgment. It was, under the common law, the practice in Englam', when a suitor desired redress for a wrong for which there was no established remedy, to apply to the proper court to frame a writ that would give him a just remedy, and that form of action known as ' action upon the case ' was adopted to meet a large number of such cases. Again, courts of equity were established to afford a remedy where the technical rules of law were insufficient to administer justice. The Supreme Court of this State, under the Constitution, § 95.] Ifsufpicien-ct; Nature and Substance of Cause. 81 has ' general jurisdiction in law and equity,' and exer- cises, under such rules of practice as the legislature has established, the common-law and chancery powers exer- cised in this State prior to the adoption of the Consti- tution of 1846. The plaintiff is properly before the Court, its jurisdiction is not questioned, and no tech- nical rule of practice forbids its doing justice between the parties." [The full jurisdiction of equity is expressly preserved to the Supreme Court of New York by Code Civ. Pro., § 219.] § 95. Allegations stating insufficient grounds with other and suffi^cient grounds. — Where the language of a complaint suggests doubt as to which of two causes of action was intended by the pleader, and allegations can be gathered from it which are sufficient to sustain one of them, but not allegations sufficient to sustain the other, the complaint will be regarded as intending the former, and allegations appropriate only to the latter may be disregarded as surplusage. Quintard vs. Newton, 5 RoU. {N. Z), 72. s. p., Krower vs. Eeynolds, 99 N. Y. 245 Boyle vs. City of Brooklyn, 71 N. Y., 1 ; rev'g 8 Hun, 32. (Complaint to set aside assessment as cloud on title, for a defect which did not appear on the record, but con- taining an allegation also of a defect which did appear on the record. Demurrer for insufficiency urged on the ground that if the latter allegation were true, plain- tiff had no need of relief in equity, for the assessment was void at law. Held, error to sustain the demurrer. Eapallo, J., says : " But is she bound to repose wholly upon the second alleged ground of invalidity ? "When the contest comes and the lien is sought to be enforced, the claimant under the lien will be at liberty to contest her objection and she may fail in maintaining it. In the mean time, her evidence to establish the first ground of defence may have been lost. It is to protect parties against this danger that actions to remove clouds upon titles are allowed. I do not think that a plaintiff in such an action, properly framed, should be deprived of the remedy simply for the reason that the complaint also set out an additional objection to the validity of the lien sought to be annulled, which, if well founded, 82 Abbott's Brief on the Pleadings. Demukree. [§ 96. would appear in tlie proceedings to enforce the lien. It may not prove well founded in fact, and tlie party should not be compelled to repose wliSlly upon it. The allegation may be treated as surplusage.") ICompare Eequa vs. Guggenheim, 3 Lans. {N. Y.), 51, holding that if plaintiff so frames his complaint as to leave it uncertain on which of two causes of action he relies, and he can have but one recovery, the complaint should be construed in the way most favorable to de- fendant.] § 96. Allegations involving mistake as to the law. — If a good cause of action appears, allegations added ap- parently for the purpose of making out a case under a mistaken theory of law as to the plaintiff's rights may be disregarded as surplusage.' A defendant who denies such allegations is not thereby estopped from insisting on the application of the proper legal rule." Nor is the plaintiff who made them estopped,' unless they have so affected the frame and theory of the action as to mislead the defendant or result in a failure to prove the alleged, cause of action in its entire scope and meaning. ' Hoops vs. Atkins, 41 Ga., 109. (The designation in the declaration of a written promise to pay sued on, as a promissory note which is technically not a promissory note, does not render the declaration demurrable. Judgment reversed on above grounds.) Orr Water Co. vs. Eeno Water Co., 19 Nev., 60. (Allega- tion of express contract to keep in repair a water- ditch ; neglect to do so ; and that plaintiff had paid for repairs a certain sum, which sum was paid " to the fendant's use," and that " the defendant promised to pay the same." Hdd, that these latter allegations might be regarded as surplusage and the plaintiff could re- cover damages for the breach of the contract. A good cause of action is not destroyed by adding immaterial matter, and a party is not estopped or concluded by a mistaken averment of law in his pleading.) Murphy vs. McGraw, 74 Mich., 318 ; s. c, 41 N. W., 917. (The averment of an offer to return, not accepted, in an action for breach of warranty, if the right of return did § 97.] IsrsuFFiciENCY; Natube and Substance of CAtsE. S3 not exist at law, is surplusage which does not vitiate the complaint.) Keynolds vs. Chicago & A. E. Co., 85 Mo., 90. (Mistake in alleging maximum legal rate of charge under a pub- lic act, disregarded.) Wilcox vs. Bates, 45 Wis., 138. (A defendant held to be a trustee for the plaintiff for certain lands was charged on accounting with the rental value as distinguished from the actual receipts. On appeal, held, although the answer stated that use and occupation was worth a less sum than that stated bj plaintiff, it did not estop de- fendant to deny that rental value was the measure of damages, and from insisting on the proper rule, as the issue on that point tendered and accepted was im- material. Judgment reversed.) § 97. Immaterial allegations not regarded. — If the pleading state facts constituting a cause of action or de- fence, unnecessary allegations, even though of insufficient evidence, cannot make the pleading bad on demurrer." Pierce vs. Town of St. Anne (C. Gt. N. D. Ill), 30 Fed. Sep., 36. (Complaint on town bonds, after alleging the compliance with the conditions precedent to their issue, set forth the town clerk's certificate of the facts. Hdd, not demurrable because the clerk's certificate insuffi- ciently stated the facts ; the other allegations being sufficient, the certificate was merely surplusage.) De Martin vs. Albert, 68 Gal., Ill; s. c, 9 Pm. Eep., 167. (An addition to allegations constituting a sufficient cause of action for trespass, of a further allegation " contrary to the statute" [citing it], may be disregarded, on de- murrer.) Marix vs. Stevens, 10 Colo., 261 ; s. c, 15 Pac. Rep., 350. (Complaint stated terms of lease, and then alleged "that defendant so leased and rented, and had the right to the possession, and to the use and enjoyment at all times during the term." Demurrer because it failed to show whether the defendant used and en- joyed the premises, or merely had the right thereto, overruled. ElsiNG, C, said : " The facts admitted by the demurrer are that the defendant leased of the plaintiff certain realty, for a definite term, at an agreed rent, and that said rent is due and unpaid. The other allegations constitute no part of the facts upon which the cause cf action rests.") S4 Abbott's Brief ox the Pleadings. Demurrer. [§ 98, State of Conn. vs. New Haven & Northamp. R. Co., 37 Conn., 153, 165. (Mandamus to compel the stopping of trains at a station. The statutes made the abandoning of a station a question for the railroad commissioners. Held, that defendants' allegation that they found judicious management and the public in- terests required an abandonment did not tender an issue, and were therefore not admitted by demurrer.) King vs. Enterprise Ins. Co., 45 Ind., 43 ; Hayden vs. Anderson, 17 Iowa, 158 ; Ward vs. Ward, 5 All. Pr. N. 8., 145. s. p., Boyle vs. City of Brooklyn, 71 N. Y., 1., rev'g 8 Hun, 32. (Complaint to remove an assessment as a cloud on title for facts not appearing on the record, good although it disclosed also facts which did appear on the record and made the assessment void.) § 98. Various (/ rounds foi- same recovery. — If the facts statea entitle plaintiff to any of the relief which is de- manded, the complaint is not demurrable for not indicat- ing whether he relies upon those facts in the aspect of a torfc, or a contract, or an equitable right. [See also next section and note.] Hale 1)5. Omaha Natl. Bk., 49 N. Y., 626, 632 ; rev'g 33 N. Y. Super. Ct. {J. . {N. T.), 428 ; Dupre vs. Eein, 7 Abb. N C. 'N. Y.), 256. The statutes are as follows : Morida^McGldLan's Dig., 1881, c. 162, § 33, subd. 13-16, prescribe simple short forms of pleadings on written instruments, all of which allege what is due to plaintiff, and defendant's failure to pay. Kansas—Comp. L. (1885), p. 620, § 123. "In an action, counterclaim, or set-olf, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a speci- fied sum, which he claims, with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state, also, the kind of liability of the several parties, and the facts, as they may be, which fix their liability." Michigan— Howell's Anno. Stats. (1882), c. 259, § 7346. " The plaintiff in any such action " (against makers, drawers, guarantors, indorsers, etc., of notes and bills of exchange), " and in all other actions on bills of ex- change or promissory notes, may declare upon the money counts alone, and any such bill or note may be given in evidence under money counts in all cases where a copy of the bill or note shall have been served with the declaration ; and the sheriff's return of service of such copy upon the defendant or defendants shall be prima facie evidence of such service." Nebraska — Code (1881), § 129. (Same as Kansas, above.) Neio York — Code Civ. Pro., § 534. "Where a cause of action, defence, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect." North Carolinon-Code Civ. Pro. (1883), § 263. (Same as North Dakota, below.) North Dakota— Com,p. L. (1887), § 4927 ; Code Civ. Pro., % 131. " In an action or defence founded upon an in- 182 Abbott's Brief os the Pleadihtgs. Demueker. [§ 199. strument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum, which he claims." Ohio— Rev. Stat. (1890), § 5086. " In an action, counter- claim, or set-off founded upon an account, or upon an instrument for the unconditional payment of money only, it shall be sufficient for a party to set forth a copy of the account or instrument, with all credits and the indorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims, with interest ; and when others than the makers of a prom- issory note, or the acceptors of a bill of exchange, are parties, it shall be necessary to state the facts which fix their liability." South Carolina — Code of Civ. Fro., § 183. (Same as North Dakota, above.) South Dakota— Civ. Pro., § 131 ; Comp. L. (1887), § 4927. (Same as North Dakota, above.) Wisconsin — Anno. Stat. (1889), § 2675. "In an action, defence, or counterclaim, founded upon an instrument . for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum, which he claims." Wyoming— Rev. Stat. (1887), § 2473. (Same as Ohio, above.) § 199. Validity, execution, ownership, cmd conditions. — It is settled m New York that the statute makes the copy the equivalent only of pleading the terms of the instrument according to legal effect/ and does not dis- pense with alleging whatever extrinsic facts may be necessary, if any, to show its consideration,^ its validity,' the identity of defendant and the signer/ and the title of plaintiff,^ if these facts do not sufficiently appear pre- sumptively, at least, by the terms of the copy ; and that to charge an indorser of a negotiable instrument, the extrinsic facts of dishonor and notice must be alleged.® Decisions in some other States, it will be seen below, have been made in accord with the view that the object of the statute was to preserve and extend, in case of mere money instruments, all that was convenient in the §201.] For Insufficiency; Particular Allegations. 183- old conmiou-law practice of common counts with a copy of the note annexed.'' ' Code Civ. Pro., § 534, adding a clause which declares this much at least to be the effect. ' Spear vs. Downing, 34 Barh., 522 ; s. c, 12 Ahl. Pr., 437 ; 22 Hoio. Pr., 30. ° Broome vs. Taylor, 76 JV. Y., 564, rev'g in part, and afS'g in part, 13 Hun, 341. (Maker's coverture appearing ; facts then necessary to give validity to the contract must be alleged.) * Vogler vs. Kirby, 18 JV. Y. State Rep., 287 ; s. c, 15 Civ. Pro. B., 337; 4 N. Y. Supp., 99. Nickels vs. Am. Railway Signal Co., N. Y. Daily Peg., Feb. 26, 1884. [Contra in Indiana, Jackson vs. Burgert, 28 Ind., 36.] 'Gurnee vs. Beach, 40 Hun {JV. Y.), 108; Eose vs.'M.ejeT, 1 JIow. Pr. JV. S. i^f. Y.), 274 ; s. c, lOiv. Pro. P., 219. [Contra in Ohio under the peculiar form of the statute there. Sargent vs. Railroad Co., 32 Ohio St., 449. But there the indorsement under which plaintiff claims must appear in the copy. Tisen vs. Hanford, 31 id., 193.] ' Conklin v.s. Gandall, 1 Abb. Ct. App. Dec, 423. [Contra, Strunk vs. Smith, 36 Wise., 631. (Complaint against indorsers good without any allegation as to the makers, nor any as to dishonor, other than that plain- tiff duly performed all conditions on his part.)] ' See Purdy vs. Vermilya, 8 N. Y., 346. § 200. Form of allegation. — Substantial compliance with the statute form as to the allegation of what is due, is enough Smith vs. Fellows, 26 Hun {N. Y.), 384. (Omission of the word " thereon," or its equivalent, after " due to the plaintiff," not ground of demurrer.) Heinrichs vs. Wolff, 14 Civ. Pro. P. {N. Y.), 428. (Omis- sion of "from the defendants"^ — it appearing that they were the makers — not ground of demurrer.) § 201. Language. — A contract in a foreign language pleaded under this section may be by a copy in that language. 184 Abbott's Brief on the Pleadings. Demurrer. [§ 203. Nourny vs. Dubosty, 12 Abb. Pr. {N. T.), 128. (If a cor- rect translation were used instead, alleging it to be a translation, the departure from the statute, if it be one, ought to be disregarded as immaterial.) [s. p., Documents, below.] COEPOEATIONS. [Incorporation may be material (1) as indicating capacity to make the contract or incur the liability alleged (in which case the question of capacity relates to the time of the transaction) ; and (2) as ca- pacity to sue or be sued, for which purpose the question of capacity relates to the time of suit. The circumstance that both aspects are usually involved in the same case and covered by the usual allegation that " at the times hereinafter mentioned was and ever since has been," has rendered it usually unnecessary to notice this distinction.] § 203 Necessity of alleging iucorpora- § 305 Power to act. tion. 306 Private or foreign corpoTation. 204 General allegation of organiza- 207 Mode of act. tion. § 203. Necessity of alleging incorporation. — In the absence of a statute i-equiring an allegation/ a pleading involving the existence or transactions of a corporation is not necessarily demurrable for insufficiency by reason of not alleging incorporation ; for that fact may be assumed from the use of a name appropriate to a corporation, or from the fact that the party contracted vrith it by such a name ;^ and if the objection is to want of capacity to sue or be sued, the demurrer must be special, on that ground, and the want of capacity must affirmatively ' Such statutes exist in several of the States. See N. Y. Code Civ. Pro., § 1775. And in the view of Mr. Bliss such a requirement is implied in the provision of the Code that the facts constituting the cause of action must be pleaded. Bliss on Code PI., § 246. " Abb. Tr. Ev., 18, § 1. s. p.. Union Cement Co. vs. Noble, 15 Fed. Rep., 502. Compare Bliss on Code PI, §§ 259, 260, 408." ' See Demurrer for Incapacity. § 205.] For Insufficiency; Particular Allegations. 185 § 204. Oeneral allegation qf organization. — A general allegation of the organization or creation of a corpora- tion, or its acceptance of a charter, is sufficient on de- mun^er (when the statute, if private or foreign, is duly pleaded), without alleging the proceedings by which it became formed.^ It may be otherwise where the allegations of the pleading draw in question the validity or effect of those proceedings.^ ' Eoberts vs. Wabash, St. Louis & Pacific E. Co. {Mo., '86), 3 West Rep., 783. (Citing Werth vs. Springfield, 78 Mo., 107; Stewart vs. Clinton, 79 Mo., 609; and holding that in an allegation that " by various transfers defend- ant has succeeded to all the rights, privileges and im- munities'of, and become subject to the same penalties " as, a corporation named, under a charter and statute providing for succession upon condition of acceptance, it is not necessary that acceptance be also pleaded, for the general allegation necessarily implies an accept- ance and whatever else is necessary to make the char- ter binding.) Nellis vs. N. Y. Centr. E. Co., 30 N. Y., 505. (Consolida- tion of several.) Stanley vs. Northwestern Life Asso., 36 Fed. Rep., 75. (Successor corporation.) " Deatrick vs. City of Defiance {Girc. Ct. 0.), Monthly L. Bui., 342. Motion to make petition more specific. The Court say : " The averment of the petition is to the ef- fect that it was a village ; and it has been advanced to a city under the laws of the State of Ohio under the name of The City of Defiance. This is an averment of fact, not a conclusion. The proceedings by which it was advanced would be evidence of this fact and should not be pleaded. A suit brought in the name of a rail- road company sets forth its organization — corporation under what State, etc., etc. La no instance the proceed- ings by which it became organized are set out in the pleadings. When the corporation is denied, the man- ner in which it became organized is evidence and should not be pleaded." § 205. Power to act. — Facts showing the power of a private domestic corpoi'ation to do an act alleged need 186 Abbott's Brief on the Pleadings. Demurrer. f§ 206. not be stated if the act may for all that appears be within the usual powers of such corporations. Lindslgy vs. Simonds, 2 Alb. Pr., N. S., 69. (Note of busi- ness corporation, expressed to be for value received.) 8. p., Dubois vs. N. Y. & Harlem E. E. Co., 1 N. Y. Leg. Obs., 362. Mechanics' Banking Association vs. Spring Valley Shot & Lead Co., 25 Barb., 419, rev'g 13 Moiv. Pr., 227. (In- dorsement by a business corporation.) Eeformed Dutch Church vs. Yeeder, 4 Wend., 494. (Ee- ligious corporation suing for rent need not aver its ca- pacity to take real property.) § 206. Private or fweign corporation. — Where the provisions of a private or foreign chai-ter are material to the cause of action, they must be pleaded. Hahnemannian Life Ins. Co. vs. Beebe, 48 lU., 87 ; s. c, 1 Withr. Corp. Cos., 420. [ Compare Eogers vs. Coates, 38 Kans., 232 ; s. c, 16 Pacif. Rep., 463 ; Bard vs. Chamberlain, 3 Sandf., 31 ; Camden & Amb. E. E. Co. vs. Eemer, 4 Barb., 127, and cas. cit.] An averment in a pleading that a corporation had power to execute a contract means that it had such power by the law of its being. Western Union Tel. Co. vs. Union Pacific Ey. Co., 3 Fed. Rep., 1; s. c, 1 McCrary, 418. § 207. Mode of act. — In alleging a corporate act it is not necessary to state the mode in which it was done, — as by deed,* or by a particular vote.^ ■ 1 CUtt. on PI, 16 Am. ed., 244. ' Over vs. City of Greenfield {Ind., 1886), 3 West. Rep., 734. (Eesolution requiring yea and nay vote.) § 170, above. DAMAGES. [See also § 120, Demurrer to Eelief, and § 154, Cause and Effect, above ; also Injury, below.] §208. Allegation showing breach of §211. Ad damnum ; demand of judg- contract. ment. 209. — by tort. 212. — too much. 210. Distinction between general and special damages. § 208. Allegation showing damages: — hy breach of contract. — In an action on a contract to recover a sum of § 208.] Fob Insufficiency; Particular Allkgations. 187 money agreed to be paid, an allegation of damage is not necessary,^ unless the sum fixed is a mere penalty, or the contract to pay is conditioned on damage.^ In an action for unliquidated damages for a breach of contract, if an executed consideration appears by the complaint, the omission to allege damages is not ground of demurrer, because plaintiff is entitled to recover at least nominal damages,^ and in such case the insertion of a claim for damao-es not recov^erable on the facts alle2:ed may be disregarded on demurrer.* It is the better opinion that the same rule applies even in cases where the consideration is wholly executory and damages are not liquidated, and that, in such cases also, a breach without showing how plaintiff was pecun- iarily damaged is enough against demurrer. But the authorities are in conflict.^ ' Spioer vs. Hoop, 51 Ind., 365, 368. (Action for liquidated damages stipulated for in a special contract (and for other relief). Held, on motion for injunction, unneces- sary to show how and to what extent damaged.) Mahony vs. Thompson, 24 N. Y. Weekly Big., 204. (Action on contract to manufacture, seeking to recover contract price, on defendant's refusal to receive. Held, that, not being on breach of an executory sale, allega- tion of damages was not necessary.) • [And see cases at end of note 4 laying down this rule for all breaches of contract.] [Compare Laraway vs. Perkins, 10 N. Y., 871. (Under a contract by defendant to build a house for plaintiff and receive pay in land, the difference in value between the house and the land is the natural and necessary measure of damages ; and no statement of special dam- ages is necessary to entitle the plaintiff to give evidence thereof.)] A complaint against bail for not justifying must allege damage. Clapp vs. Schutt, 44 iV. F., 104 ; aff'g 19 Abb. Ft., 121, s. c, 44 Barb., 9 ; 29 Hoxo. Pr., 255. ' McGee vs. Roen, 4 Abb. Pr. {N. Y.), 8. (A contract to save from a legal liability, from a suit, claim, or demand, or the like, gives a right of action without any averment of actual damage. The legal liability is, in such case, the 188 Abbott's Brief on the Pleadings. Dbmueebr. [§ 208. measure of damages. [Citing 1 N. T., 550; 3 Den., 321.]) ° Brassell vs. Williams, 51 Ala., 349. (Compromise which the complaint showed had been at least partly per- formed by plaintiff.) Alexander vs. Western U. Teleg. Co. {Miss., 1889), 3 Law B. A., 71 ; s. c, 5 South. Bep., 397. (Action for delay in delivering message. Error to sustain demurrer ; for, in any view of the case, appellants were entitled to re- cover nominal damages — the amount paid for the trans- mission of the message, if no more.) * Barber vs. Cazalis, 30 Col., 92, 97. ' [Sufficient illustrations of the conflict are given below. The reason why the question remains unsettled may be that it is rarely reversible error to dismiss the com- plaint when only nominal damages are recoverable, unless the parties are in a court where nominal dam- ages carry a right to substantial costs, or unless some continuing right is involved.] Affirmative : McCarthy vs. Beach, 10 Oal., 461. (Bond to release a mortgage, complaint alleging that by neglect to perform, foreclosure resulted and other premises were lost to plaintiff. Held, sufficient. With dictum that "for the breach of a contract an action lies, though no actual damages be sustained." Citing Sedgw. on D., 53; Marzetti vs. Williams, 1 Barnw. & Ad., 415.) Kenny vs. Collier, 79 Ga., 743 ; s. c, 8 South East. Bep., 58. (Holds, under Ga. Code, § 2496, that "in every case of breach of contract, the other party has a right to damages*.") Conover vs. Manke, 71 Wis., 108. (Complaint by buyer against seller in executory contract wholly unper- formed ; the words " to the damage of plaintiff $79," enough. It is wholly unnecessary to allege price or value, and ability to resell at a profit : these are matters of evidence.) Cowley vs. Davidson, 10 Minn., 392. (Action against carrier for wholly failing to transport grain, as contem- plated by an executory contract : allegation of market price at the two termini ; and general allegation that " by reason thereof and of the premises plaintiff has been damaged $1750, and interest from," etc., held, suffi- cient without allegation of sale at a loss. The Court say that a breach of contract entitles to nominal damages at any rate [citing Sedgw. on D., 47 ; 3 Bars. Contr., 217, 218; ^ Greenl. Ev., % 254], and insufficiency in the § 309.] Foe Insufficiency; Particular Allegations. 189 allegation of special damages could not therefore avail.) Devendorf vs. Wert, 42 Barb. {N. Y.), 227. (Action by buyer against seller for refusal to perform executory contract for sale. Eeferee gave judgment for defendant because, the goods having latent defect, plaintiff had lost nothing. Held (reviewing cases), error ; but as plaintiiT could have only nominal damages which would not affect costs, the judgment should not be reversed.) [The right to recover nominal damages only is recognized in Blot vs. Boiceau, 3 N. Y., 78, 85, 87 ; and in Mills vs. Gould, 42 N. Y. Super. Ct. {J. & S.), 119, 123.] Fitch vs. Fitch, 35 JST. Y. Super. Ct. {J. & S.), 302. (Contract to perform dentist work on teeth of plaintiff's daughter ; unskilful wofk, to the discoloring and injury of the teeth ; demand for damages. Edd, not demurrable on the ground that damage to plaintiff was not alleged.) Patterson vs. Dakin, 31 Fed. Rep., 682, 685. Negative. Gould vs. Allen, 1 Wend., 182. (Action on covenant to purchase land : facts rendering loss prob- able are not enough. So held on special demurrer.) Thompson vs. Gould, 16 Abh. Pr. N. 8., 424, 428. (Hold- ing that in an action against buyer for damages for refusal to accept, omission to allege facts constituting damages is fatal, though it is otherwise in an action for the price.) § 209. — b]/ ton. — In an action to recover damages for a tort, an allegation of damages is not necessary as against demurrer, for plaintiff is entitled at least to nom- inal damages.^ At common law, the usual ad damnum clause, — " to the damage of the plaintiff," specif3'ing a sum, — is essen- tial ^ and enough. Under the Nevr Procedure, a demand of judgment in a specified sum, though essential, is enough.' ' "Webb vs. Portland Mfg. Co., 3 Sumn., 189 (leading Am. case). (Action for overflowing. Stoey, J. Actual damage never necessary where there is tort.) Eeiterated in "Whipple vs. Cumberland Mfg. Co., 2 Story, 661. Glezen vs. Rood, 43 Mass. (2 Meio ), 490. (Action against officer for not returning bail bond.) s. P., Harrington vs. St. Paul, etc., E'. Co., 17 Mnn., 215, 229. (Trespass by building railroad on plaintiff's land.) 190 Abbott's Brief on the Pleadings. Demurrer. [§210. ' Trenscli vs. Kamke, 63 3fd., 274, 277. (A ueclaration in tort, although it states personal injuries, is bad on de- murrer if it does not lay damage on a specified sum. This was essential at common law. So especially in any local court only having jurisdiction where the damages exceed a specified sum.) " See notes to next section. [Kenney vs. N. Y. Central E. Co., 49 Hun, 535, applies the same rule to actions on the statute for negligence, etc., causing death, on the ground that, the action being given by statute, an allegation of damages was not needed.] § 210. Distinction between general and special dam- ages. — The rule that general damages are only such as are the natural and necessary result of the act or omis- sion, does not mean the inevitable result ; but includes all damages which there is a legal presumption, in the absence of evidence, would result. That presumption will entitle plaintiff to nominal damages even if he give no evidence of their actual amount ; and hence entitles him to maintain the action against demurrer, though he has not alleged facts show- ing their amount. Thus where the wrong is an injury to the highway, the law presumes that the pvblic suffer damages thereby ; hence if the town sues, its pleading is sufficient without alleging special damages. Town of Troy vs. Cheshire E. Co., 3 Fost. {N. H.), 83. But the law does not presume that any particular indi- vidual suffers damages thereby ; hence if a private person sues, his pleading is insufficient on demurrer, if he does not allege special damages. Holmes vs. Corthell, 80 Me., 1 ; s. c, 5 New Engl. Rep., 793 ; Shero vs. Carey, 35 Minn., 423 ; s. c, 29 North West. Rep., 58. So where the wrong is an injury to the person, the law presumes that he or she suffered damages, and his or her pleading is sufficient without an allegation of special damages : but the injury may be such that the law cannot presume that the husband or parent of the injured person suffered damages ; and therefore if the husband or parent sues, his complaint is insufficient §211.] For Insufficiency ; Pakticulab Allegations. 191 unless it alleges special damages. Uertz vs. Singer Mfg. Co., 35 Hun (iV^. Y.), 116. [Contrast, on the last point, Stone vs. Evans, 32 Minn., 243 ; Kenney vs. N. Y. Central E. Co., 49 Hun, 535. (Action by personal representative for benefit of next of kin of deceased.)] So in slander or libel by words actionable per se, special damages need not be alleged ; but in case of words not actionable^ per se (Walker vs. Tribune Co., 29 Fed. Sep., 827), and in case of slander of title ("Wilson vs. Dubois, 35 Minn., 471 ; s. c. , 29 North West. Rep., 68), com- plaint is insufficient on general demurrer if special damages are not alleged. The mere danger that a trespass to real property, or a nuisance, by setting water back on plaintiff's mill privi- lege, might if sufficiently long continued ripen into an easement, entitles plaintiff to nominal damages. Wiley vs. Hunter, 57 Vt., 479 ; s. c, 2 East. Rep., 228, 234. But where a reversioner sues, he must allege facts show- ing that the wrong is of such permanent nature as to in- jure the reversion. 1 Ghitt. PI., 16 Am. ed., 593. § 211. A.d damnum I demand of judgment. — At Common law the words " to the damage of plaintiff " in a specified sum, or their equivalent, are essential.' Under the New Procedure the omission of such a cla;use is not ground of objection if the facts alleged show a right to some damages, and the demand .of relief speci- fies an amount sought.^ ' Bronson vs. Wallace, 4 Blatchf. C. Gt., 465. (Action on a money contract. Omission of an ad damnum clause fatal on general demurrer ; and not helped by substi- tuting a demand of judgment as in a complaint under the Code.) Deveau vs. Skidmore, 47 Conn., 19. (Case erased from docket where writ contained no ad damnum clause, not- withstanding plaintiff's damage could be inferred from the declaration.) Dalby vs. Campbell, 26 HI. App., 502. (Where there are several counts, each must contain an ad damnum clause.) [Contra on this point, White vs. Demilt, 2 Hall {N. Y.), 405, 414.] • Eiser vs. Walton, 78 Cal, 490 ; s. c, 21 Pad/. Rep., 362. 192 Abbott's Brief on the Pleadings. Demueeer. [§ 213. Spears vs. Ward, 48 Ind., 541. (If the coiints respect- ively show damage, a single prayer at the end of the complaint is enough without specifying the amount claimed under each count, respectively.) Ohristal vs. Craig, 80 Mo., 367 ; Burkeholder vs. Eudrow 19 Mo. App., 60; s. c, 1 West. Rep., 397. Orr "Water Ditch Co. vs. Eeno Water Co., 19 Nev., 60 ; s. c, &Pacif. Rep., l'2i. (Complaint showing money paid, and demanding judgment, not bad for omitting to insert " to plaintiffs damage," etc.) * Conversely, it is held in Indiana that if there is an ad damnum clause, an omission of a separate demand for judgment is not fatal. Louisville, etc., E. Co. vs. Smith, 58 Ind., 575. But the better opinion is that judgment on failure to answer after demurrer overruled should not be entered unless there is an express prayer for judgment. § 212. Demanding too much. — The objection that the comjjlaint demands a largei' amount of damages than its allegations entitle plaintiff to recover is not available in suppoi't of a demui'rer. Dodge vs. Johnson, 9 Civ. Pro. R. (N. Y.), 339. s. p.. Meek vs. McClure, 49 Cal, 623, 627. [^Contra in Georgia, where demurrer serves also like a motion to compel amendment. Kenny vs. Collier, 79 Ga., 743 ; s. c, 8 South East. Rep., 58. (Demurrer as to part of damages sustained.)] DATE. [See also §§ 123-125, Premature Action; § 218, Delay.] 213. Dates, if essential to the cause | 215. Several events. of action. 216. Continuance of fact or right. 214. Form of allegation. 217. On or about. § 218. Dates, if essential to the cause of action. — If it appears by the facts alleged that the sufficiency of the pleader's case depends on the precise date of a fact, the date must be alleged ; and an omission to allege it/ or the allegation of an insufficient date,^ is fatal on demurrer on the ground of not stating facts sufficient to constitute a cause of action. § 214.] For Insufficibn-cy; Pakticulae Allegations. 193 This rule does not apply to a date merely required to show that the action was not prematurely brought, un- less the facts showing that it was so brought affirmatively appear.^ First National Bank of Knightstown vs. Deitch, 83 Ind., 131. (Where dates are essential to the yalidity of the cause of action, a demurrer will be sustained if they are left blank. [Citing 73 Ind., 128 ; ib., 271.]) Cox vs. Farmers', etc., Mut. Fire Assur. Asso., 48 N. J. L., 53 ; s. C, 3 Atl. Rep., 122. (Holding, in action on fire policy, that a plea of a by-law of the company, of which plaintiff had notice on the day the policy was issued, was bad for not alleging that the by-law was adopted before the contract was entered into.) 'Briggs vs. Fleming, 112 Ind., 313; s. c, 14 NortTi East. Rep., 86. (Holding that, under a statute requiring mortgages to be recorded within ten days, an exhibit filed with the pleading showing record after the ten days overrode an allegation in the pleading that it was within ten days, and made the pleading bad.) ' See § 124, Demurrer, Action premature. § 214. Form of allegation. — At common law a specific date is required for every material fact,^ except where it may be laid with a continuando. Under the New Procedure an allegation stating that the fact occurred within a period specified is enough on demurrer if each date within that period would sustain the action or defence.* And where the only materiality of a date is to show which of two events took place first, it- is enough on demurrer to allege of one that it was after or before the other.^ If the specific date is desired, the remedy is by motion to make more definite or for particulars. ' Andrews vs. Thayer, 40 Conn., 156. (As against special demurrer, " heretofore " is not enough ; for it simply denotes time past, in distinction from time present or time future. Hence an allegation that defendants "heretofore" committed the trespass alleged is not 194 ' Abbott's Brief on the Pleadings. Demurker. [§ 215. enough. Park, J., said : "It is an elementary princi- ple of the law of pleading that there must be an alle- gation in the declaration of the time when any material or traversable fact took place." [Citing 1 Swift Dig,, 601, 603, 640, 651, 652, 702 ; Story vs. Barrell, 2 Conn., 665.]) Scheible vs. Johnson, 19 W. N. C. {Pa.), 108. (Plaintiff, suing for goods seized by defendant under a claim for rent, filed, after avowry, a special plea of partial evic- tion, which did not specify the time thereof, nor the portion from which he was evicted. Hdd, on demurrer, plea bad for uncertainty.) Shorey vs. Chandler, 80 Me., 409 ; s. c, 6 New Ungl. Rep., 739; 15 Atl., 24. (Civil damage case : allegation that the sales were on divers days between two specified dates, bad even on general demurrer.) " Commissioners of Excise vs. Burtis, 20 WeeMy Dig. {M. F.), 272. (Action for excise penalties, for sales on each day within specified periods. Held, that as no motion to make definite or for particulars had been made, evidence was receivable as to each day.) 'Kellogg vs. Baker, 15 Abb. Fr. {N. Y.), 286, and cases cited. (Pleading a release.) § 215. Several events. — When several facts are stated in one continuous sentence, or in several sentences con- nected by the conjunction "and," time, though alleged but once, applies to every fact. Eoyce z7s.Maloney, 58 R, 437; s.c, 5 Atl. Hep., 395,399, citing Taylor vs. Welsted, Cro. Jac., 443 ; 1 CUtt. PI, 258. § 216. Continuance of fact or rigJit. — The presump- tion that a fact alleged to have existed on a specified date continued to a later date is not sufficient to sustain a pleading on demurrer.^ But if facts showing a right accrued are alleged, an allegation that the light continues is not necessary.^ ' Parkhurst vs. Wolf, 47 N. Y. Super Ct. {J. & S.), 320. ' Tufts vs. Johnson, 29 111. App., 112. (In replevin, plaintiff alleged a default in the payment of certain notes given in payment for the property, which provided that, in case of default, plaintiff could retake the property, and that it was his until all the notes were paid, but did §218.] For Insufficiency; Particular Allegations. 195 not expressly allege that the right to retake continued at time of suit. HM, a demurrer to the declaration was improperly sustained. If, after default, plaintiff waived or accepted payment, that should have been set up by way of defence.) § 217. " On. or abouV — Where the date is not mate- rial, or only material as showing that the fact occurred before action brought, stating it as "on or about" is sufficient on demurrer. Bement vs. Wisner, 1 Code E., N. S., 143. (^Saying that the remedy was motion to make more definite and certain.) Kansas Pacific Ey. vs. McCormick, 20 Kan., 107, 110. Leigh vs. Leigh, 1 Dan. Cli. Pr., 369. (Even when time is material, an allegation that a fact occurred on or about a day specified may be sufficient, if, when reasonably interpreted, it imports a day within the requisite pe- riod. Thus where an unqualified allegation fixing the day anywhere within the year mentioned in such an allegation would establish the claim, the allegation may be held sufficient.) Compare District T. vs. Des Moines L Co., 75 Iowa, 647 ; s.c, 36 North West. Rep., 902. (The insurance petition al- leged that the loss occurred on or about April 14, 1886, and that proof of loss was given on or about June 19, 1886. Hdd, on demurrer, that it did not show on its face that more than sixty days intervened, and though indefinite was not demurrable. Judgment affirmed.) DELAY. 218. Delay, laches, etc. — Where delay, laches, or stale- ness of claim is a good ground for refusing relief, the ob- jection may be raised in equity under a demurrer for want of equity,^ and under the Code^ for not stating facts sufficient to constitute a cause of action. But to apply this rule the facts showing the necessary lapse of time must appear on the face of the pleading.* ' Taylor vs. Holmes, 14 Fed. Rep., 498. Speidell vs. Henrici {Circ. Gt. W. D. Penn., 1883), 15 Fed. Rep., 753, with note. (Action to set aside a trust. De- murrer sustained.) [Contra, Beekman vs. Hudson Eiver West Shore E. Co. 196 Abbott's Brief on the Pleadings. Demurrer. [§ 219,, {G. Ct. S. D. K T.), 35 Fed. Rep., 3. (Holding tliat where delay by a bondholder in commencing a fore- closure suit of a railroad mortgage, for a period less than that prescribed by the statute of limitations, is sought to be availed of in bar of his right to recover, the fact of such delay is a mixed question of law and fact, and should not be passed upon on demurrer.)] ' Bell vs. Hudson, 73 Cal, 285, 2 Jm. St. Rep., 791 ; s. c, 14 Pac., 791. (Action for partnership accounting.) Hazard vs. Dillon, 34 Fed. Rep., 485. (Laches in bringing a suit for the profits of a contract held not to arise on the face of the bill, where that did not show when the contract was completed.) Jones vs. Slauson, 33 Fed. Rep., 632, 636. (Holding that a bill founded on fraud will not be held bad on de- murrer on the ground of a lapse of time short of the statutory period, unless the bill upon its face, without reverting to inferences, makes a clear case of unreason- able delay after discovery of the fraud. [Citing Shel- don vs. Packet Co., 8 Fed. Rep., 111.']) 8. P., Lincoln vs. Purcell, 2 Head {Tenn.), 143. In Alexander vs. Byrd, 85 Fa., 690; s. c, 13 Va. L. J., 105, the Court, quoting Cole vs. Ballard, 78 Va., 139, say: " Laches is the neglect to do something which a party ought to do, and mere lapse of time, unaccompanied by some circumstances affording grounds for a pre- sumption that the right has been abandoned, is not considered ' laches.' And claims are considered ' stale ' only where gross laches is shown, with unexplained acquiescence in the assertion of an adverse right." DELIVEKY. [See also Contracts, § 164.] § 219. Delivery and acceptance. — Delivery and accept- ance, wlien used of change of possession of a thing, being correlative, an allegation of either may sufficiently import the other. Gazley vs. Price, 16 Johm. (N. Y.), 267. (Delivery of deed " according to agreement.") s. P., Davenport vs. Whisler, 46 Iowa, 287. Valley Eailw. Co. vs. Lake Erie Iron Co., 20 Conn. ' WeeEy L. B., 383; 46 Ohio St., 44. (Allegation that tinder a contract for payment in merchandise, the party applied for and received the goods under and in per- § 221.] For Insufficiency ; Paeticulak Allegations. 197 formance of the contract, hdd, on demurrer, a sufficient allegation of delivery in performance of the contract.) [See also § 182, Conteacts.] Horton vs. Horton 66 Wise, 32 ; s. c, 27 Noril West. Bep., 619. (Allegation that plaintiff delivered to defendant "a list of notes to collect," held, in view of the whole pleading, to import delivery of the notes.) Clark vs. Meigs, 13 Abb. Pr. {N. Y.), 467. (Allegation that defendants, plaintiff's stock brokers, , sold his stock against their duty as his agents, hdd,, to imply a per- fected sale by delivery.) For the difference between the popular sense of delivery, as meaning mere handing over, and the technical legal sense, see Young vs. Clarendon Township, 132 U. S., 340, 353. DEMAND. [See also Conteacts, §§ 179-199, and Duly, § 255 below.] §320. Necessity: — Promise to pay, nam- §322 Form of allegation. ing time or place. 233 Demand implied from other 231 to pay on demand. allegations. § 220. Necessity : — Promise to pay, naming time or place. — On an absolute promise, whether negotiable or not, to pay a specified sum at a specified time and place, but not stipulating for a demand, a demand need not be alleged, as against the oi-iginal debtor.^ So also of such a promise to pay at a specified time without naming a particular place ; ^ and of a pi'omise to pay at a specified place without naming a time.^ ■ Locklin vs. Moore, 57 N. Y., 360. (Holding that the rule is not confined to bills, notes, and bonds, but includes all agreements for the payment of money.) Wallace vs. M'Connell, 13 Fet. (U.S.), 136. (Holding declaration not alleging demand, sufficient to sustain judgment by default.) ' Frank vs. Murray, 7 Mont., 4. ' Com'l Nat. Bank of Chicago vs. Chicago, M. & St. P. Ky. Co., 45 Wise, 172. § 221. Promise to pay on demand. — On an absolute promise, whether negotiable or not, to pay on demand, or 198 Abbott's Beief on the Pleadings. Demubkbe. [§ 222. as may be requested or directed, but not expressly mak- ing demand or request a condition precedent, a demand need not be alleged as against the original debtor ; for the bringing of the action is a sufficient demand.' Otherwise where a promise expressly requires a de- mand as a condition precedent,^ or a statute expressly re- quires demand.* ' Ernst vs. Bartle, 1 Johns. Cos. {JST. Y.), 319. Clute vs. McCrea, 12 N. T. State Rep., 647. (Allegation that defendant promised to repay loan "as plaintiff might direct," does not require demand, because thist is what the law implies from a loan.) " Walker vs. Welch, 13 lU., 674. (A charge for goods sold, and promise to pay on request.) Potomac Mfg. Co. vs. Evans, 84 Va., Ill ; s. c, 6 Sowth East. Hep., 2. (Trust deed enforceable six months after demand ; bringing of suit is not a sufficient demand, so as to sustain a decree six months later.) ' McLean vs. Manhattan Medicine Co., 54 N. Y. Super. Ct. {J. &. S.), 371 ; 8. c, 6 State Bep., 805, rev'g 3 State Sep., 550. (Action for personal tax.) By statute in Missouri, omission to demand before suit must be pleaded by defendant. Lee vs. Casey, 39 Mo., 383. § 222. Form of allegation. — Where demand is merely necessary to perfect the obligation, and no other act is required of the party making it, and no time or place limited for making it, a general allegation of demand, or qualifying the allegation of breach by the words "al- though often requested," is enough on demurrer. Hobert vs. Hilliard, 28 Mass. (11 Pick.), 143. Dyer vs. Eich, 42 Mass. (1 Mete.), 180 ; Lent m. Padelford, 10 Mass., 239. (Alternative contracts.) Frank vs. Murray, 7 Mont., 4 ; s. c, 14 Pacif. Rep., 654. (Allegation "that at various times before the com- mencement of this suit plaintiff demanded of said de- fendant " the specified sum, sufficient on a verbal con- tract to pay.) Ohio, for the Use of Burritt and Wife, vs. Cowles, 5 Ohio St., 87. (Action on administrator's bond under a statute § 225.] For Insufficiency; Pabticulak Allegations. 199 which expressly required a previous demand. General allegation good on general demurrer.) Harris vs. Perry, 2 Biish {Ky.), 101. (Action against constable, statute requiring previous demand. General allegation good, especially after verdict.) § 223. Demand wvplied from other allegaUons. — An allegation of refusal is equivalent to an allegation of de- mand and refusal. Hammond vs. Mason & H. Organ Co., 92 U. 8., 724 ; s. c, 23 Law. ed., 767. (Sufficiency of plea to bill in equity.) Malone vs. Minnesota Stone Co., 36 Minn., 825 ; s. c, 31 N. W., 170. (So held on motion for judgment on the pleadings.) Foulks vs. Foulks, 6 N. T. Supp., 112. (Action for legacy.) Hutchins vs. Wade, 20 Tex., 7. (Action on promise to " pay out of the proceeds of my present crop.") Divan vs. Loomis, 68 Wise, 150 ; s. c, 31 North West. Sep., 760. ' (Contract for support.) Berney vs. Drexel, 33 Hun {N. Y.), 34. (In an action for conversion, if a demand be necessary, an allegation of conversion is enough, because it would let in evidence of demand and refusal.) DESCENT. [See also Heir and Title.] § 224. Effect of allegation. — An allegation that the premises descended to a person named as the heir of an- other, sufficiently imports that he was such heir^ and came into possession.^ ' St. John vs. Northrop, 23 Barb. (N. Y.), 25. Contra, Montgomery vs. White, 10 Ky. L. R., 905 ; s. c, 11 Southivest. Sep., 10. [Compare § 266, Heir.'] ' So held of plaintiff's title and possession, in partition. Wainman vs. Hampton, 20 N. Y. Weeldy Big., 68. DETENTION. § 225. Wrongfulness. — If facts are alleged showing title and apparent right of possession in plaintiff, an al- legation that defendant became possessed and refused to 200 Abbott's Brief os the Pleadings. Demurrer. [§ 226. deliver on demand, and wrongfully detains the property, is sufficient, on demurrer.' An allegation of wrongful detention, without alleging wrongful taking, or demand and refusal, is an allegation of a mere conclusion, and insufficient on demuirer.^ ■ Griffin vs. Long Island E. E. Co., 101 N. Y., 348 ; s. c, 4 North East. Rep., 739. (Eeplevin.) Sheldon vs. Hoy, 11 How. Pr. {N. Y.), 11. (Conversion.) [In Louisville, etc. Ey.. Co. vs. Payne, 103 Ind., 183; B. c, 2 North East. Rep., 582, where the petition added that the wrongful detention was under execution against plain- tiff on a judgment which is "absolutely void,"^ — held, that the latter was a conclusion of law, and rejecting this, the petition showed detention under execution, which could not be deemed wrongful.] ' Seifert vs. Kraft, 13 Civ. Pro. R. {N Y.), 321. (Eeplevin.) iGontra, Simser vs. Cowan, 56 Barb,, 395.] DISCLAIMER § 225a. Sufficiency. — A disclaimer which avails to exonerate defendant from costs is not bad on demurrer, although it be not sufficient to bar the action. McAdams vs. Lotton, 118 Ind., 1 ; s. c, 20 North East, 523. (Ejectment.) DOCUMENTS. [For rules' applicable to pleading contracts rather than other documents, see Contracts, where are treated signature ; statute of frauds ; performance of con- ditions ; breach, etc. A. Documents pleaded in the absence of statutory regulation. § 336. Necessity of copy or substance. § 833. Copy accompanied by allega- 33'?. Pleading legal effect. tion of legal effect : Incon- 338. Copy embodied in the pleading. sistency between pleading 239. Copy annexed and referred to. and exhibit. 330. Language. 233. Demurrer not aided by orig- 331. Ambiguities. inal. § 226.] For Insufficiency ; Paktioular Allegations. 201 B. Documents furnished under Statutes or Rules of Court, re- quiring Exhibits to be Annexed or Filed. i 234. What deemed a written " in- strument. '' 235. — subscription paper. 236. What is foundation of the ac- tion. 237. — to construe, reform or can- cel. 338. — document collaterally in- volved. — Action on contract. 239. action of tort. 240. — muniments of title. 241. Exhibit not called for by statute. 242. False reference to filing. 248. Indorsements; Ownership of chose in action. 244. Demurrer for failure to furnish exhibit. § 245. Copy in body of, pleading enough. 246. Exhibit which is mere evidence not noticed on demurrer. 247. Contract not shown to be in writing. 248. Reference to exhibit and iden- tifying. 249. Appropriate words of refer- ence. 250. — several counts. 251. What omissions in pleading supplied by exhibit. 252. Excuse for not furnishing, 253. Amended pleading. 254. State practice in U. S. Court. A. Documents Pleaded in the absence of Statutory Regu- lation § 226. Necessity of copy or substa/nce. — To plead a document merely by name, or allege that it was of a par- ticular class, such as a mortgage or a release, without stating its substance, or at least so much thereof as is essential to the pleader's case, is insufficient on demurrer. Marshall vs. TurnbuU, 34 Fed. Rep., 827. Morton vs. Grafflin, 68 Md., 545; s. c, 11 Gent., 514 ; s. c, 13 Atl., 341. (Creditor's suit in aid of attachment. Demur- rer sustained because the proceedings in attachment were not so set out ; notwithstanding a statute allowing the production of the record as evidence instead of a transcript. Dictum that the defect was amendable.) s. p., People vs. De la Guerra, 24 Gal., 78. King vs. Trice, 3 Ired. {N. G.) Eg., 568; Martin vs. McBryde, id., 531. Hussey vs. Smith, 1 Utah, 241. (Foreclosure : allegation that defendant "gave a mortgage" a mere conclusion of law.) [Contra, 3IilWs PI. {Iowa), 129.] 202 Abbott's Bbief on the Pleadings. Demukeer. [§ 237. § 227. Pleading legal effect. — Under the New Pro- cedure, as formerly, a document may be pleaded by legal effect, that is to say by stating its substance, or the sub- stance of such part as the pleader relies on, without pur- porting to give its words, or a copy,^ except where there is a statute requiring a copy to be furnished.^ ■Kehlenbeck vs. Logeman, 10 Daly {JST. Y.), U7. (By- law of association.) Wallace m. Bldredge No. 2, 27 CaZ., 499. (Allegation that a contract was payable yi a specified medium.) ' See § 234, below. § 228. Copy embodiea in the pleading. — At Common Law,' and in Equity,^ a pleading may set forth at length any document material to the case of the pleader (not being mere evidence) ; and if from the allegations of the pleading the instrument appears to be binding on the adverse party, — whether because made by him, or be- cause conclusive on him as a public official act,* — the material facts stated in the document are thereby suf- ficiently alleged as against him without a separate allega- tion of their truth in the pleading.* It is the bftter opinion that the rule is the same under the New Procedui'e, except where there is a statute requiring express allegation of some fact so appearing.^ ' Ward vs. Sackrider, 3 Cai., 263. (Statement of considera- tion in instrument set forth and alleged to have been executed by the adverse party.) Dickerson %)s. Derrickson, 39 III., 574. (The same.) B. p., United States vs. Morris, 10 Wheat. {U. 8.), 246, affg 1 Paine, 209. (Plea setting forth a Secretary of the Treasury's warrant of remission, in which the jurisdic- tional facts supporting his issue of the warrant were recited.) ' See authorities to next section. ° See for instance United States vs. Morris. {Above died.) * In City of Los Angeles vs. Signoret, 50 Cal., 298, it was held that facts so stated are not thereby sufficiently § 239.] For Insufficiency ; Particular Allegations. 303 alleged, if preliminary or collateral, such as the recital of the steps preliminary to an assessment. Followed ia Lambert vs. HaskeU, 80 Cal. 611 ; s. c, 22 Pacif. Bep., 327. 8. P., Briggs vs. Fleming, 112 Ind., 313 ; Blackburn vs. Orowder, 108 Ind., 238. 'Murdock vs. Brooks, 38 Cal., 596. (Action on under- taking.) Budd vs. Kramer, 14 Kans., 101. (Allegation that de- fendant executed an instrument which is set out in full, is a good allegation that he promised, etc., as therein appearing.) Elmquist vs. Markoe, 39 Minn., 494, 40 N. West., 825. (Words " value received " in the instrument sued on.) Prindle vs. Caruthers, 15 N. Y., 425. (The same.) Slack vs. Heath, 4 E. D. Smith {N. Y.), 95, 109 ; s. c, 1 Mb. Pr., 331. (Complaint on undertaking in replevin ; re- citals contained in the undertaking held a sufficient alle- gation of the facts recited.) \_Contra, — practice disapproved as to instruments other than for unconditional payment of money, — Crawford vs. Satterfield, 27 Ohio St., 421; but held that, demurrer not being interposed, the objection could not be raised at the trial.] [For other authorities contra see notes to next section.] A document which is merely a statement by the party pleading, not connected with the adverse party, by allegation, cannot be thus used. Murphy vs. Estes, 6 Biish {Ky.), 532. (Plaintiff's statement of money paid. The Court say the petition itself must state a cause of action.) § 229. Copy annexed and referred to. — In Equity, a document material to the case of the pleader may be pleaded by annexing a copy thereof and referring to it in the body of the pleading, alleging that it is a copy and is made a part of the pleading ; this having the same effect as if the document were copied into the body of the pleading.^ It is the better opinion that this convenient rule is still in force under the New Procedure, in all actions whether legal or equitable.* An acknowledgment or other authentication included 204 Abbott's Brief on the Pleadings. Dbmurbek. [§ 229. as a part of the copy, is a sufficient allegation that the original was certified in like form.* To make a copy thus annexed apart of the pleading, in the absence of a statutory provision on the subject it must be both annexed, and stated in the pleading to be made a part of the pleading ; otherwise it cainnot be re- garded on demurrer.* ' Jolinson vs. Anderson, 76 Va., 766. (Foreign attachment in chancery : supplemental bill alleging and annexing as an exhibit a copy of a foreign decree. Hdd, that it constituted part of the bill, and the Court on demurrer might look into the decree as if actually incorporated in the bill.) Followed in Thompson vs. Clark, 81 Va., 422. (Holding that exhibits filed with and prayed to be taken as part of a bill are as much a part of it as if actually incor- porated therein.) Whether proper at common law, compare Fitch vs. Cornell {Circ. Ot. Oreg.), 1 Sawy., 156; Oh Chow vs. Halle tt, 2 id., 259, against it ; and Secombe vs. Steele, 20 How. U. S., 94, where such an exhibit was treated as part of the pleading. ° Lambert vs. Haskell, 80 Cat., 611. (Conceding, however, that the recitals in the copy cannot supply the lack of matters of substance preliminary or collateral to the instrument.) Bishop vs. Empire, etc., Co., 33 N. Y. 8'':per. Ct. {J. & S.), 99. (Allegation that an instrument, a copy of which is annexed, contains the terms and conditions of the agreement between the parties, is an allegation of fact that the parties agreed on the terms and condi- tions contained in the annexed paper.) Alfaro vs. Davidson, 40 N. Y. Super. Ct. (J. & S.), 87. (Sufficient without alleging that the original was in writing.) Eng. Com. L. Procedure Act 1852, § 56. [^Contra, compare the following cases, in some of which, however, the decision seems to have turned on the effect of the statute of the State, or on other reasons consistent with the rule in the text : Sorrells vs. McHenry, 88 Ark., 127 ; Brooks vs. Paddock, 6 Coh., 36 ; Watkins vs. Brunt, 53 Ind., 208; Piatt vs. Brickley 119 Ind., 333 ; s. c, 21 North East. Rep., 906 ; Gebhard vs. Gardner, 12 Bush {Ky.), 321 ; Dietz vs. Corwin, 35 §230.] FoK IsrsDFFiciEiircT ; Paeticdlae Allegations. 205 Mo., 376 ; Bowling m. McFarland, 38 id., 465 ; Lanmore vs. Wells, 29 OUo St., 13 ; Olney vs. Watts, 43 id., 499 ; Burks vs. Watson, 48 Tex., 107; Johnson vs. Home Ins. Co. {Wyo., 1885), 6 Pad/. Rep., 729.] In Yeiser vs. Todd {Mem.), 6 Ky. L. Rep., 597 (mechanic's lien), an allegation that plaintiff " performed his con- tract with defendant as set out in the said itemized account," with exhibit containing items, but no state- ment that the items were correct, was held, not an al- legation that the plaintiff did the work and furnished the material mentioned in the exhibit. ' New vs. Bame, 3 SaTidf. {N. Y.) Ch., 191. (Acknowledg- ment and record of instrument in schedule annexed.) And see § 164. * Annexing not enough. Scott vs. Union County, 63 Iowa, 583 ; s. c, 19 North West. Rep., 667 ; Harrison vs. Vree- land, 9 Vroom {N. J.), 366; Brown vs. Warden, 15 id., 177. Filing not enough. Caton vs. Willis, 5 Ired. Eq. (N. Car.), 335. Eeferring to as part of the pleading, without annexing, not enough. People vs. De la Guerra, 24 (Jal., 73, 78. Pacific B.K. of Missouri vs. Missouri Pacific Ey., Ill U. S., 505. (So holding even of a record referred to with a prayer of leave to refer to it as evidence on the trial.) Annexing and referring to, without expressly adopting as a part of the pleading, not enough. Mercantile Trust Co. vs. Kanawha & O. Ey. Co., 39 Fed. Rep., 337. (So held even in foreclosure of railroad mortgage on a line running through both jurisdictions. Petition founded on such a bill therefor denied, and an order bringing in new parties vacated, and dismissal of the bill ordered unless plaintiffs should amend.) Filing and referring to, without expressly adopting as part of the pleading, not enough. Terry vs. Jones, 44 Miss., 540. IContra, Gray vs. Commercial Bank, 1 Rob. {La.), 533.] § 230. Language. — An instmment in a foreign lan- guage may be pleaded by using, instead of a copy of the original, a correct translation, alleging it to be such. Christenson vs. Gorsch, 5 Iowa, 374. (Because the stat- ute requiring pleadings to be in English justifies it.) Lambert vs. Blackman, 1 Blachf. {Ind.),^ 59. (Because, if it does not satisfy the practice requiring a literal copy, 306 Abbott's Bkief os the Pleadings. Demukree. [§ 231. it is yet equivalent to pleading the legal effect.) s. p., Generes vs. Simon, 21 La Ann., 653. [s. p., § 201.] § 231. Ambiguities. — If a document pleaded by copy which contains ambiguities requiie evidence of extrinsic facts to render it sufficient, the pleading must contain the necessary allegations of such facts. Worthington vs. McDonald, 4 Ind., 483. Riley vs. Vanhouton, 5 Miss. (4 How.), 428. § 282. Oop^ accompanied by allegation of legal effect: inconsistency bet/ween pleading and eochibit. — A pleading which contains a sufficient allegation of a matter of fact is not made insufficient by the annexing of a copy of a document which does not bear out the allegation, if the discrepancy is such as may be presumed to be a clerical error in the copy.^ But if the allegation is of the substance, purport, or legal effect of the contents of an instrument which is al- leged as binding the adverse party, and the contents of the copy are affirmatively variant in a manner not to be accounted for by clerical error, the copy, if effectually made part of the pleading, controls the allegation alike for the purpose of sustaining or condemning the pleading.- If the document is one not binding the defendant, such as a map or diagram, it cannot avail in favor of the pleader to supersede a formal allegation in the pleading which is variant from it.^ [These are the principles which underlie the following cases. The rule may be modified by the statutes in some jurisdictions absolutely requiring a copy of the instrument sued on to be annexed or filed.] ' Blasingame vs. Home Ins. Co., 75 GcH., 633 ; s. c, 17 Pacy'. Bep., 925. (Action on fire policy issued to third person, but alleged to have contained " loss, if any, payable to plaintiff." Omission of that clause from the §232.] For Iusufficien^ct; Particular Allegations. 207 copy annexed and referred to as containing it did not render the complaint demurrable.) Mendocino County vs. Morris, 32, vol., 145. (Allegation that defendants signed sufficient, though copy of instru- ment annexed did not contain signature of all.) [(7om- pare Bonnell vs. Griswold, below cited, where the contrary was held, the instrument annexed purporting in its introduction to be only made by that part of the defendants whose signatures were appended.] 'Wheeler vs. McCormick, 8 Blatchf., 267. (Allegations pleading an instrument according to its legal eifect, though otherwise sufficient, fail if the pleader adds " as will fully appear by reference to a true copy hereto an- nexed," and the copy annexed is of a substantially dif- ferent effect. Here the allegations were of the object and relief in a former suit, and the bill annexed showed that the allegations misconceived it.) Bonnell vs. Griswold, 68 N. Y., 294, affi'g Bonnell vs. Wheeler, 16 Ahb. Pr., N. S., 81, 1 Run, 332 ; s. c, 3 Supm. Gt. {T. (& C), 557. (Allegation that defendants signed a report " a copy of which is hereto annexed," etc. The copy purported to be the report of, and signed by, only a part of the defendants. Held, bad on demurrer.) State, Loeb vs. Barris, 50 K J. L., 382; s. c, 12 Cent, 79, 13 Atl., 602. (Demurrer sustained because the copy lease annexed showed that plaintiff did not sign nor covenant, but that the instrument was the contract of her agent. [Citing other cases.] ) United States vs. Ames, 99 U. 8., 35, 45. (Allegation that signature was for the firm not admitted by demurrer when copy annexed showed individual, not firm, signa- ture.) Eose vs. Feldman, 67 Ocd., 100; s. c, 7 Pac. Rep., 185. (Allegation that defendant individually signed not admitted when copy annexed bore firm signature.) State, Graham vs. Nichols {Iowa), 41 N. W., 4. (Allega- tion that an order " is a secret, oath-bound and volun- tary fraternal society, prganized only and solely for social, benevolent, and fraternal purposes," is a mere conclusion of law, and cannot control the force of pro- visions of the constitution of the order, set out in the pleading, which show that the main object of the asso- ciation is to provide insurance for its members.) [For other cases to the point that an allegation of the effect of the document cannot countervail the document itself when pleaded, see the following : Dillon vs. Bar- nard, 21 Wall. ( U. S.), 430, 437, 1 Holmes, 386 ; Stoddai-d vs. Tread -.vel], 26 Gal., 294; .North vs. Kizer, 72 III, 172; 208 Abbott's Brief on the Pleadings. Demukeee. [§ 233, Smitli vs. Webb, 16 III, 105 ; Litell vs. Hoagland, 106 Jnd., 320; s. c, 6 North East. Bep., 645 ; Eead vs. Yeager, 3 North East. Sep., 856 ; Stroup vs. Haycock, 56 Iowa, 729; s. c, 10 North West. Bep., 257 ; Thornton vs. Mal- queen, 12 Iowa., 549; Board of Education vs. Shaw, 15 Kan., 83; Lea vs. Eobeson, 12 Oray {Mass.), 280; Whit- ney vs. Ehoades, 85 Mass. (8 Allen), 471; Buffalo Catholic Inst. vs. Bitter, 87 N. Y., 251 ; Bogardus vs. N. T. Life Ins. Co., 101 N. Y., 328 ; Morrison vs. In- surance Co., 69 Tex., 353, 5 Am. 8t. B., 63.] ' Eemy vs. Municipality No. 2, 12 La. Ann., 500. (As a gen- eral principle, a plan annexed to a petition should be used to explain anything that is ambiguous or unex- plained in the petition, but it cannot control a written description of the metes and bounds of the land claimed in which there is nothing ambiguous.) § 233. Demurrer not aided by original. — The produc- tion of an original document, even though it be a record, if not so pleaded as to be made a part of the pleading cannot make the pleading demurrable, nor can it be used on demurrer to contradict the pleading.' But according to the better opinion, a document pro- duced on oyer, whether in Equity ^ or at Common Law,^ fof-ms part of the pleading of the party producing it ; and if insufficient, demurrer lies. " Noonan vs. Bradley, 9 Wall, 394, 401. Story's Eq. PI, 414, § 4526. • Bogart vs. Hinds, 25 Fed. Bep., 484. ' Mott vs. Burleson, 2 Q. Greene (Iowa), 600 ; Douglass vs. Eathbone, 5 Hill {N. Y.), 143. B. Documents Furnished under Statutes or Rtdes of Gowrt requiring Exhibits to be Annexed or Filed. [For these statutes, and their object, see Eecept^on of Evidence, — Bocwrmnts.'l § 234. What deemed a written ^^ instrument." — Stat- utes requiring instruments in writing, when pleaded, to be furnished or filed as exhibits, apply to bonds* and recognizances,^ § 236.] For Insufficiency; Particular Allegations. 209 But not to a bill of items * for go'ods sold by plaintiff to defendant, nor to a resolution of a municipal corpora- tion defendant * accepting plaintiff's offer to sell ; nor to a Judgment,^ nor an execution even when pleaded as a justification,^ nor a tax levy,'' nor to official ^ or legal pro- ceedings ^ sought to be enjoined by the party alleging them. ' See McGary vs. Barr (Pa., 1890), 19 Atl. Rep., 45. (Ko- tion on replevin bond.) ' Kiser vs. State, 13 Ind., 80. (Error to overrule demurrer.) ■ Kingsland & F. Mfg. Co. vs. St. Louis M. I. Co., 29 Mo. App., 526. ' Over vs. City of Greenfield {Ind., 1886), 3 West, 734 ' Becknell vs. Becknell, 110 Ind., 42 ; Hopper vs. Lucas, 86 id., 43. Dougherty vs. Longmore, 2 Cinn. Super. Ct. R., 134. So also of foreign judgments. Judds vs. Dean, 2 Disney ( Ohio), 210. Omahundro vs. Clarkson, 13 Mo. App., 582. ' Thurston vs. Boardman, 1 Wilson (Ind.), 433. ' Hazzard vs. Heacock, 39 Ind., 172. (Tax duplicate.) ' Logansport vs. La Rose, 99 Ind., 117 ; Huff vs. Lafayette, 108 id., 14. • Collins vs. Fraiser, 27 Ind., 477 ; Matheney vs. Earl, 75 id., 531. (Actions to enjoin collection of judgment.) Hall vs. Hough, 24 Ind., 273 ; Trueblood vs. Hollings- worth, 48 Ind., 537. (Actions to enjoin execution sale.) § 235. — subscription paper. — A statute requiring the original instrument to be filed is not applicable to a sub- scription paper, as it may be required in several suits be- tween different parties at different places.* ' "Workman vs. Campbell, 46 Mo., 305. But a subscription paper was held within the statute of Iowa in Hudson vs. Plank Eoad Co., 4 G. Greene (Iowa), 152. § 236. What M "foundation" of the action. — In the application of the rule that an instrument which is the 210 Abbott's Beief on the Pleadings. Dbmubeer. [§ 236. basis or foundation of the action must be furnished as an exhibit, the following distinctions have been observed : In an action on a bond, — as for instance an attachment bond, — the bond is the basis of the suit.* In the case of an injunction bond, the proceedings in the injunction suit ai-e not.^ So in a suit on an administrator's bond, the final set- tlement of his account, the non-compliance with which constituted a breach, is not.^ Where a wiitten contract declared on is in several distinct parts, all are required.^ A collateral paper, containing conditions affecting the obligation of the contract sued on, and referred to therein as such, must be furnished.^ But a deed or conveyance constituting merely the consideration for the obligation sued on need not be fur- nished.® A supplemental contract, forming a part of the actual contract sued on, must be furnished.''' A written order for the goods, the price of which is sued for, being a mere memorandum, not expressing price, but only number and quality, is not the " foundation" of the action.* Nor is a written order for the payment of the money sued for.^ In case of foreclosure founded ' on a note and mort- gage, the mortgage must be furnished ; and the note also, if a personal judgment is sought.*" In an action on a subscription paper, a copy of the subscription should be furnished." In an action on an assessment by a ditching or drain- ing company against a member, the assessment is within the statute,'^ but not the other papers and proceedings.'^ So notice of the proceedings for the assessment," or notice of a call on subscribers for stock in a corporation,*® although essential to be proved to sustain the action, are §236.] Fob Insufficiency; Particular Allegations. 311 not " the foundation" of the action within the meaning of the statute. ' Bunt vs. Eheum, 52 Iowa, 619. ' Cress vs. Hook, 73 Ind., 177. (Holding it error, there- fore, where a copy of the proceedings were unnecessarily filed, to sustain a demurrer because they did not sup- port the complaint.) ' State, Edwards, vs. Bartlett, 68 Mo., 581. (Holding it mere evidence, and need not be filed.) ' Johnson vs. Tostevin, 60 Iowa, 46. (Contract consisting of written order, and letter and answer thereto, relating to such order. Demurrer sustained because a copy of the answer was not filed.) " Titlow vs. Hubbard, 63 Ind., 6. (Note expressed to be subject to certain conditions contained in a written agreement between the parties of the same date.) Busch vs. Columbia, etc., Asso., 75 Ind., .348. (Note pay- able according to conditions in a mortgage and a con- stitution, by-laws, and regulations of the association. Here the mortgage and the constitution, etc., were held necessary.) The contrary held in an action on a note payable to a building and loan association, which merely stated, " This obligation is given for money loaned under the constitution, by-laM^s, and regulations of said associa- tion." Here the plaintiff need not exhibit such consti- tution, by-laws, and regulations. Anderson B. L. F. & S. Asso. vs. Thompson, 88 Ind., 405. l^Contra also of the application for insurance, referred to in the policy sued on. Mut. Benefit Life Ins. Co. vs. Cannon, 48 Ind., 264. [Continental Life Ins. Co. vs. Kessler, 84 Ind., 310. (Thi.- decision was put upon the ground that the code was designed to simplify the common-law practice by elim- inating burdensome technicalities of pleading, and is to be reasonably construed. The plaintiff sues upon the obligation as evidenced by the instrument delivered to him, and if there is a collateral paper, which con- tains conditions necessary to have been performed by him, he must allege that performance generally, and, unless such performance be denied, no proof on the subject is required. E. S., 1881, sec. 370. If the defendant wishes to make an issue upon any condition contained in such collateral paper, he may set it up in answer. The policy delivered to the assured was s 213 Abbott's Bkief on the Pleadings. Demuekeb. [§ 237. the "written instrument" on -whicli the action was founded.)] ° Nordman vs. Craighead, 27 Ark., 369. (Deed mentioned only as conveying the land which was the consideration of the note sued on.) Emmons vs. Kiger, 23 Ind., 483. (Action on contract of sale.) ' Potts vs. Hartman, 101 Ind., 359. ' Deere vs. Lewis, 51 lU., 254. ° Harwood vs. Case, 87 Iowa, 693. (Mandamus.) " Roche vs. Moffitt, 107 Ind., 58 ; s. c, 2 West, 253. " Hudson vs. Plank Eoad Co., 4 G. Oreene {Iowa), 152. The contrary held under the Missouri statute, which re- quires the original to be filed, where the original con- tained many names of subscribers besides that of the defendant. Workman vs. Campbell, 46 Mo., 305. " Jerrell vs. Etchison Ditching Asso., 62 Ind., 200. Smith vs. Clifford, 83 Ind., 520. State, Mayfield, vs. Myers, 100 Ind., 487. " Pickering vs. State, use of Dyar, 106 Ind., 228. Wishmier vs. State ex rel. "Wilcox, 110 Ind., 523 ; s. c, 11 North East. Rep., 291. (Holding that so much of the report as affects the party to the suit or his land is enough. Also that if other documents are furnished, the omission to state expressly which is the foundation of the action is not ground of demurrer.) " Jackson vs. State, use of Lindley, 103 Ind., 250 ; s. c, 1 West. Rep., 269. " Fox vs. AUensville, etc.. Turnpike Co., 46 Ind., 31. § 237. The same ; — in action to const/rue, reform, or cancel. — Where the object of the pleading is to obtain the Judicial construction^ or the reformation'* of a written instrument, the instrument is within the statute. Otherwise if the object is to obtain cancellation.^ ' McMahan vs. Newcomer, 82 Ind., 565. Cross-complaint, or counter-claim, asserting title by devise and annexing a copy of the will. Defendant claimed that the copy of the will was not to be looked to in determining the suffi- ciency of his pleading, because it is not the foundation of his cause of action. Elliott, J., says : It is, perhaps, true, "that it is not the foundation of the pleading, but §238.] Foe Insufficiency; Particular Allegations. 313 it is a written instrument presented to the Court for the purpose of obtaining a judicial construction. Where the judgment of the Court is sought as to the construction of a will, it is necessary to make it a part of the plead- ing ; and this may be done by filing it as an exhibit." ' Overly vs. Tipton, 68 Ind., 410. Cottrell vs. Mtna, Life Ins. Co., 97 Ind., 311. ' Watkins vs. Brunt, 53 Ind., 208 ; Stribling vs. Brougher, 79 Ind., 328 ; Boyd vs. Olvey, 82 Ivd., 294. (Cancella- tion of deeds.) Briscoe vs. Johnson, 73 Ind., 573. (Discharge of guard- ian, and receipt by ward.) Gardner vs. Fisher, 87 Ind., 369. (Cross-complaint to cancel note sued on.) Vannice vs. Green, 14 loiua, 262. (Confession of judg- ment ; sought to be set aside for insufficiency of state- ment.) Walkup vs. Zehring, 13 Iowa, 306. (Execution and sheriff's deed thereon.) Johnson vs. Moore, 112 Ind., 91 ; s. c, 13 W. East, 106. (Note and mortgage.) § 238. Tiie same ; — Documsntn collaterally involved. — Actions on contract. — In an action to recover money re- ceived by defendant to the use of the plaintiff, the evi- dence of debt by collecting or enforcing v^^hich defendant obtained the money is not within the statute.* So where a surety sues for contribution, the contract. in which the parties became sureties is not within the statute.^ So in* a suit against a bank to recover a statutory penalty for delaying payment of its bills, the declaration need not set out copies of the bills.^ ' Crane vs. Buchanan, 29 Ind., 570. (Deed absolute on its face, but in fact a mortgage : action against grantee for surplus received on the sale.) Hight vs. Taylor, 97 Ind., 392. (Note and life policy assigned for collection : action to recover proceeds.) Watts vs. Fletcher, 107 Ind., 391. (Note transferred for collection : action for proceeds lost by negligence.) Ruddick vs. Marshall, 23 Iowa, 243. (A junior mortgagee suing mortgagor for amount adjudged, in foreclosure, to be equitable proportion due on senior mortgage. 214 Abbott's Brief on the Pleadings. Dbmukker. [§ 233. under a statute, need not exhibit the record or decree of foreclosure.) Barney vs. Buena Vista County, 33 Iowa, 261. (Here the petition alleged that plaintiff, in making a payment into county treasury, presented a warrant for a certain sum more than the payment, and that the treasurer cancelled the warrant, giving him two others which he issued without authority, on which payment was re- fused when presented, and he sues for the sum due him. Demurrer sustained, because warrants not set forth nor copied. Held, error. Suit not founded on the first warrant, because defendant has cancelled that; and not on the others, because treasurer had no author- ity to issue them. Suit is in nature of an action for money had and received.) = Carr vs. Waldron, 44 Mo., 393. Porter vs. Waltz, 108 Ind., 40 ; s. c, 8 iV. Fast. Rep., 705. 'Suffolk Bank vs. Lowell Bank, 8 AUen {Mass.), 355. (Pleading by legal effect is enough.) § 239. The sams ; action of tort. — In an action for malicious prosecution the judgment, or proceedings theretofore, are not required.^ So in an action for unlawful levy on exempt property, the schedule and appraisal on which plaintiff relies for his exemption are not within the statute.^ ' Bernard vs. Cafferty, 11 Qray {Mass.), 10. ' Huseman vs. Sims, 104 Ind., 317 ; s.c, 4 N. East. Eep., 42. § 240. The samej — muniments of title. — In an action to quiet title,^ or for partition,^ the mere title deeds of a party are not the foundation of the action within the statute. ' Eausch vs. Trustees of United Brethren, 107 Ind., 1 ; s. c, 4 iVest. Rep., 720. Smith vs. King, 81 Ind., 'ill. ' Sedgwick vs. Tucker, 90 Ind., 271. [Compare Spaulding vs. Baldwin, 31 «£., 376. (Holding title deed of defendant in ejectment within the statute.] § 241.] Foe Insufficiency ; Particulak Allegations. 815 § 241. JExhihit not called for hy the staPute. — ^An ex- hibit furnished in a case where it is not required by the statute — as, for instance, a document which is not the foundation of the action, or not the kind of instrument contemplated — can neither help nor hurt the pleading with which it is furnished.^ The better opinion, however, is, that where a docu- ment not called for by the statute is actually embodied in the pleading, or is annexed to the pleading, and expressly referred to in the body as a part thereof, it must be considered as such upon common law principles.* 'Excelsior Draining Co. vs. Brown, 38 Intl., 384 ; Etchison Ditching Asso. vs. Bnsenback, 39 Ind., 362 ; Etchison, etc., Asso. vs. Hills, 40 Ind., 408 ; Hamrick vs. Dan- ville, etc., Gravel Road Co., 41 Ind., 170 ; Dobson vs. Duck Pond Ditching Asso., 42 Ind., 312. (Articles of draining or ditching associations not called for by the statute in action for assessments or subscriptions to stock, and therefore even though filed, cannot be con- sidered on demurrer.) Armstrong vs. McLaughlin, 49 Ind., 370 ; Tindall vs. Wasson, 74 Ind., 495 ; Stotsenburg vs. Same, 75 Ind., 538. (Documents forming source of title.) Carter vs. Branson, 79 l7id., 15. {So held even of an in- strument copied into the pleading, but on which the pleading was not founded.) Knight vs. Flatrock, etc., Co., 45 Ind., 134. (Proceedings for highway.) Hopper vs. Lucas, 8S Ind., 43 ; Conwell vs. Conwell, 100 Ind., 437. (Judgment not a " written instrument " within the statute.) West. U. Tel. Co. vs. Ferris, 103 Ind., 91. (Telegrams necessary to the defence, but not foundation of it.) Huseman vs. Sims, 104 Ind., 317. (Schedule and ap- praisement necessary to sustain claim of exemption for property sold by sheriff under execution ; but not being the foundation of an action for damages for such sale.) Thurston vs. Boardman, 1 Wilson (Ind.), 433. (Answer justifying under an execution set forth, from which it appeared that the return was imperfect.) 'See §229. Contra, Excelsior Draining Co. vs. Brown, 38 Ind., 384; 216 Abbott's Brief on the Pleadings. Demukber. [§ 243. Armstrong vs. McLauglilin, 49 Ind., 370; Carter vs. Branson, 79 Ind., 15. § 242, False reference to filing. — A statement in the pleading that a document is made part of it when the law does not require annexing or filing, and in fact the document is not annexed or filed, may be disregarded as surplusage, and will not vitiate the pleading on excep- tion or demurrer. Lee vs. Lacoste, 3 La. Aim., 223. § 243. Indorsements. — Ownership of chose vn action. — Under statutes requiring a copy of an instrument to be filed and referred to in a pleading, furnishing and referring to a copy of the note or other principal instrument, without expressly referring to indorsements copied thereon, does not satisfy the statute in respect to such indorsements, but they must be also referred to.^ Whether indorsements, assignments, and other trans- fers necessary only to show plaintiff's right to sue are within the statute, compare the cases below.^ ' Sinker vs. Fletcher, 61 Ind., 276 ; "Williams vs. Osbon, 75 id., 287 ; Davisson vs. Wilson, 80 id., 391. ' Affirmative — Mainer vs. Reynolds, 4 G. Greene {Iowa), 187. (Indorsee suing in indorser's name on non-negotiable note.) Negative — Keller vs. Williams, 49 Ind., 504. (Indorsee against maker.) Bay vs. Saulspaugh, 74 Ind., 397. (A sheriff's assignment of a debt sold on execution is not the foundation of a suit on the claim.) Nelson vs. Myers, 34 Ind., 431. (Legatee's action on note to testator : will not the foundation of the action.) Day vs. Bowman, 109 Ind., 383 ; s. c, 10 North East. Bep., 126. (Assignment of attorney's lien not part of foundation of debtor's suit to enjoin enforcement of the Men.) § 345.] POK InSUFFICIEKCT; PAKTIOULAE AliBGATIONS. 217 § 244. Demurrer for failwre to furnish exhibit. — In those jurisdictions' where the statute is regarded as making the exhibit a part of the pleading, the omission to furnish the exhibit in a case within the statute, or to allege a sufficient excuse for omission,^ makes the pleading demurrable,* or obnoxious to motion.* ' For the statutes see Eegeption of Etidence. ' See § 252, below. ° This is the rule in Indiana. Brown vs. State, Brown, 44 Ind., 222. (Action on bond : complaint alleged that a copy was filed, but none was filed. Hdd, error to over- rule demurrer.) Seawright vs. Coffman, 24 Ind., 414. (Demurrer to an- swer setting up conditions contained in subscription paper not filed. The action was on the note defendant gave for his subscription.) Ohio & M. E. Co. vs. Nickless, 71 Ind., 271. (Carrier's allegation of special contract and release, as a defence.) See also list of States under Eegeption of Evidence. * Henry vs. Blackburn, 32 Ark., 445. (Holding that de- murrer would not lie.) Egan vs. Tewksbury, 32 Ark., 48. (Holding that the omission could not avail at the trial, although pleaded by answer, but defendant should have moved.) In Burnes vs. Simpson, 9 Kans., 658, it was held error to sustain a demurrer. Kingman, C. J., says : " In States like Indiana, where the code makes the instru- ment or account on which the pleading is founded a part of the record, the not filing it may well be taken advantage of by demurrer ; but in a code like ours such a practice is not logical and ought not to be enforced." § 245. Copy in body of pleading enough. — Under a statutory provision or rule of. court requiring an instru- ment which is the foundation of the action, or a copy thereof, " to, be filed with the complaint," the filing of a complaint in the body of which the instrument is set forth in full, introduced by an appropriate allegation to connect the defendant with it, is sufficient. <» Benjamin vs. Delahay, 3 lU. (2 Scam.), 574. 218 Abbott's Brief on the Pleadings. Demurkek. f§ 246, Colchin vs. Ninde, 120 Ind., 88 ; s. c, 22 North East. Rep., 94; Adams vs. Dale, 29 /md., 273; Jones vs. Parks, 78 id., 537. (Holding allegation that the instrument was part of the complaint, or that it was filed, unnecessary.) Lamson vs. Falls, 6 Imd,., 309. § 246. Exhibit which is mere evidence not noUced on demurrer. — In those Jurisdictions where the statute merely aims at securing the information to the adverse party, and the exhibit is not a part of the pleading, the omission to furnish it does not render the pleading de- murrable ;^ and if furnished, the exhibit can neither help* nor hurt^ the pleading on demurrer. Otherwise, in the absence of such a statute, if the exhibit is expressly re- ferred to in the pleading as a part thereof.* •Hannibal & St. J. R. Co. vs. Knudson, 62 Mo., 569. (The remedy is by motion to dismiss, or motion to re- quire plaintiff to file. Error to sustain demurrer.) Calvin vs. State, 12 Ohio St., 60. " Blackwell vs. Eeid, 41 Miss., 102. Marshal vs. Hamilton, 41 Miss., 229. Deitz vs. Corwin, 35 Mo., 376. (Action on promissory note.) Dyer vs. Krayer, 37 Mo., 603. (Action on note. No pos- itive allegation of indorsement by payee, but only that D. was his endorsee, " as appears by the endorsements thereon," and the note filed cannot be looked to, to aid averments.) Johnson vs. Home Ins. Co. ( Wyo., 1885), 6 Pacif. Bep. 729; 8. c, 16 Jns. L. J., 208. (The Court say : " It has been repeatedly held that the copy attached and filed with the pleadings forms no part of the pleading, and 'that the exhibit will not be looked to on demurrer to the pleading to aid its sufficiency. Larimore vs. Wells, 29 Ohio St., 13 ; Watkins vs. Brunt, 53 Ind., 208 ; Cairo & Fulton E. E. vs., Parks, 32 Ark., 131 ; Bowling vs. Mc- Farlin, 38 Mo., 465. . . . The petition alone must state facts constituting a cause of action. If it does not, it must be held bad on demurrer. City of Los Afigeles m. Signoret, 50 Gal., 298. " The Supreme Court of Arkansas has held that a reviewing court will look at a» exhibit so as to sustain the ruling of the court below on demurrer when the §846. J Fob Insufficiency; Pakticulab Allegations. 219 exhibit is made a part of the record. Buckner vs. Davis, 29 Ark, 444; also Holman vs. Patterson, 29 Ark., 357, 362. But I know of no State, save one, in which it has been held that the Court will look to an exhibit to supply the omission of a material allegation in the petition, even though the exhibit can be and is made a part of the petition." [But see a well-considered decision in Ward vs. Clay, 82 Cal., 502 ; s. c, 23 Pacific Rep., 50, taking a different view.] s. p.. Bowling vs. McFarland, 38 Mo., 465. (Motion in arrest.) ' Pearsons vs. Le^, 2 ILL, 193. (Exhibit was a contract lacking plaintitf s signature and therefore not mutual. Hdd, error to sustain demurrer. The Court cannot, on demurrer, decide as to the want of mutuality, because the copy set out, not being a part of the pleading, is not before the Court.) Curry vs. Lackey, 35 Mo., 389. (Petition alleged written agreement to arbit^-ate difference in value between places exchanged, and written award, and exhibited the two papers, praying that they might be taken as part of it. Demurrer that the statements of the exhibits did not sustain averments of the petition. Overruled. Meld, correct. Exhibits are no part of the pleading, and can- not make it bad on demurrer.) Baker vs. Berry, 37 Mo., 306. (Petition averred that payee assigned by indorsement and delivered note to plaintiff, the assignee. Note tiled was indorsed to plaintiff by the initials of his Christian name. Demur- rer, because no averment in petition that plaintiff was same person to whom note purported to be assigned. Sustained. Held, error. Petition was good and in usual form. Assignment shown on the note could not be called in question by demurrer, as it was no part of the pleading.) PhilUps vs. Evans, 64 Mo., 17. (Motion to set aside de- fault in action on bill of exchange on the ground, among others, that the judgment included ten per cent damages on amount of bill of exchange, to which plain- tiffs were not entitled. Overruled. Held, proper to over- rule that ground. Amount of judgment did not exceed amount claimed in the petition, and the bill of exchange filed was no part of the pleading, and cannot be looked to.) Hall vs. Harrison, 21 Mo., 227. (Petition stated that an authenticated copy of the proceedings which resulted in the decree sued on was filed with it. Objection that the 330 Abbott's Bkief on the Pleadings. Dbmukkee. [§ 247. decree sued on does not show a final recovery of any specific amount. Held, that as the petition alleged final recoyery of a specific amount, and the transcript of the record annexed to the petition is not a part thereof, it cannot be looked to in order to sustain the demurrer on that ground.) Bogardus vs. Trial, 2 III., 63. (Declaration on note and account. Error to sustain demurrer for misjoinder, because a copy covenant under seal was filed.) s. p., Gage vs. Lewis, 68 id., 604. Hooker vs. Gallagher, 6 Fla., 351. ' See § 232, Allegation ov Document. § 247. Contract not shown to he in writing. — Under statutes requiring that in an action on a written contract a copy of the contract be furnished as an exhibit, a com- plaint which pleads a contract without showing it to have been in writing, is not demurrable for not furnish- ing an exhibit, although the contract be one which the statute of frauds requires to be in writing. Young Men's C. A. vs. Dubach, 82 Mo., 475. (Specific performance. Heney, J., says : " A written agreement was not alleged, nor was it necessary to allege that the agreement to sell was in writing. The statute applies to actions grounded upon instruments in writing which are declared upon as such, and was not intended to abolish the rule of pleading which authorizes a plaintiff to declare upon a contract which at common law was valid, though resting in parol, notwithstanding a stat- ute subsequently requires such contract to be in writ- n Harper vs. Miller, 27 Ind., 211, however, the contrary was conceded as to contracts which can only be valid when in writing ; but it was held that the contract there sued on being for the sale of personal property, the statute might be satisfied by part payment or delivery; and the complaint alleging the contract is not demur- rable under statute of frauds, as, if in parol, it might be validated by part payment or by delivery. §248. Reference to exhibit; and identifying. — In those jurisdictions where the statute imperatively requires filing, and in effect makes the exhibit part of the plead- ing, it must be referred to in the pleading as such;* § 250.] Foe iNSUPPioiBsrcY ; Particular Allbgatioks. 231 merely filing it, with nothing in the pleading to identify it, does not save the pleading from demurrer.^ But omission to mark it as an exhibit, or to refer to it by any particular number or other mark, is not fatal, if it is so referred to as to be identified.^ The omission to refer to it may be cured by amend- ment.'* ' Price vs. Grand Rapids & I. B. Co., 13 Ind., 58. " Stafford vs. Dayidson, 47 Jnd., 319 ; Rogers vs. State, 78 id., 329. ' Whitwortli vs. Malcomb, 82 Ind., 454 ; Wall vs. Galvin, 80 id., 449. Mere leaving tlie exhibit in the clerk's office is not suf- ficient filing. Lamson vs. Falls, 6 Ind. , 309. But if left -with a due request to file, the mistake of the clerk in respect to filing should not prejudice the party. May vs. Wolvington, 69 Md., 117 ; s. c, 14 Atl. Bep., 706; 12 (7ewf., 908. * Dictum in Rogers vs. State, 78 Ind., 329. § 249. Appropriate words of reference. — The exhibit is sufficiently described and identified by adding after appropriate allegations as to the original : " a copy of which is annexed hereto," [or, if thestatwte requires filing, "is filed herewith"], without adding "and made a part hereof." Carper vs. Kitt, 71 Ind., 24 ; Lent vs. Martin, 75 id., 228 ; Blackburn vs. Crowder, 108 id., 238. Dunkle vs. Nichols, 101 Ind., 473. (A complaint stating " the said note is in the words and 'figures following, to wit (here insert 'Exhibit A,' which is filed herewith, and made a part hereof)," sufficiently refers to the copy filed, although not the most approved method.) Totten vs. Cooke, 2 Mete. (Ky.), 275. (Allegation that de- fendant is "indebted to the plaintiff in the sum of of $779.78, due by note herewith filed," was held suf- ficient to make the note a part of the petition.) § 250. — Several counts. — Where an exhibit is to be furnished in connection with several eoniits or defences, 223 Abbott's Brief on the Pleadings. Dbmukkek. [§ 251. furnishing one copy is enough, but it should be referred to in each count or defence.^ But if there are several instruments identical in form, a copy of each must be given f except perhaps where they are too numerous — as in the case of bank notes of the same denomination — to be all presented vpithout inconvenience to the Court. ^ ' Maxwell vs. Brooks, 54 Ind., 98 ; State, Wright vs. Brown, 80 id., 425 ; Scotten vs. Eandolph, 96 id., 581. ' Hochstedler vs. Hochstedler, 108 Ind., 506. (Holding, however, that it is not necessary to add the Avords "and made a part thereof" in every successive count.) " Johnson School Tp. vs. Citizens' Bank, 81 Ind., 515. (Holding that it is not enough to say that one was an exact copy of the other.) ' Conwell vs.'mW, 14 Ind., 131. §251. What omissions in pleading supplied by exhibit. — An exhibit, even when effectually made a part of the pleading,^ does not dispense with such allegations as are necessary to show the existence of the instrument copied,* and to connect it with the parties by appropriate allega- tions showing by whom and to whom it was given.* But a fact appearing by the exhibit (if the instrument be one which binds the party against whom it is pleaded)^ dispenses with the necessity of alleging the fact formally in the pleading,^ and supplies a defective or incomplete allegation.® If the fact appearing in the ex hibit be unfavorable to the pleader, its appearance there will override a formal allegation to the contrary in the pleading.'' ' For the statutes as to what jurisdictions have this rule see Defining the Issues. • Hill vs. Barrett, 14 B. Mon. (Ky.), 83. (Plaintiff filed contract, and referred to it, and merely alleged a breach by defendant, without the facts constituting the cause of action. Demurrer sustained. Marshall, J., said : " The petition must contain in its own body, and not §251.] For Insufficienct ; Pakticular Allegations. 223 merely by reference to another paper, a statement of the facts constituting the cause of action.") ° Dodd vs. King, 1 Metc.'{Ky.), 430. (Notes payable to a third person. Plaintiff did not allege assignment to himself, and so did not show his right to sue. The notes filed showed assignment. Judgment by default reversed.) ' Nauvoo vs. Ritter, 97 U. S., 389. {Held, on demurrer to plea tendering issue as to city's authority to issue bonds, that the bonds annexed to the declaration, re- citing the facts showing authority, were part of the pleading. Demurrer to plea therefore sustained.) \^Uontra, City of Los Angeles vs. Signoret, 50 CcH., 298. (Holding recitals of jurisdictional facts in notice and claim of lien for assessment did not dispense with alle- j^atioa of those facts in the complaint.) See note to § 228 (allegation of document.) ' Ward-ys. Clay, 82 Gal, 502; s.c, 23 Pacif. Rep., 50. (Hold- ing that the statute requiring verified denial of written instruments implies a sanction of the practice of annex- ing a copy as an exhibit ; and that a copy so annexed and referred to may be considered by the Court at any rate for the purpose of ascertaining what is meant by the reference, and what the form of the instrument.) Crandall vs. First Nat. Bank, 61 Ind., 349. (Variance not ground of demurrer. Here the copy of note filed showed it payable at " Citizen's State, of," etc. Com- plaint alleged it to be payable at " Citizen's State Bank, of," etc. Demurrer overruled because complaint stated good cause of action whether note was payable at a bank or not, and therefore no ground of demurrer. De- fendant might have moved to strike out the allegation. The copy filed controls.) s. P., Cotton vs. State, 64 Ind., 573. (Action on bond.) Watson C. & M. Co. vs. Casteel, 73 Ind., 297. (Copy. of lease filed with complaint. Demurrer to complaint, for want of facts sufficient, etc., overruled. ZfeW, that if there is material variance between the allegations and the lease, "the copy will control and will be presumed to be right until the contrary is shown" [citing au- thorities.]) Furgison vs. State, 4 G. Greene (Iowa), 302. (Demurrer to petition, because not averring that bond was acce;pted by a competent officer, properly overruled ; because the bond, a copy of which was filed, showed that it was taken by a competent officer, and that was sufficient.) West vs. Hayes, 104 Ind., 251, 3 North East. Rep., 932. (Failure to allege that the note sued on was due at the 234 Abbott's Brief on the Pleadings. Demukebb. [§ 351. commencement of tlie suit cured by tlie fact that the copy filed with the complaint, under the statute requir- ing such filing, supplied the omission.) s. P., Burton vs. White, 1 Bush {Ky.), 9. Cooper vs. Blood, 2 Wise, 62. (To common counts with copy of note, defendant pleaded extension of time of payment. Plaintiff replied that he never made agree- ment " extending the time of payment of the note in the said declaration mentioned, or any part thereof." Demurrer to reply, on ground that it was a depar- ture from the declaration, held properly overruled, be- cause the note was a part of the declaration, and the reply denying extension of payment did not, therefore, depart from the declaration.) Blossom vs. Ball, 32 Ind., 115. (Allegation of lost con- tract made with plaintiff and her husband : exhibit pur- porting to be signed by plaintiff and defendant only. Held, that the copy would control the allegation ; and, as signature by the husband was not essential, the complaint was good on demurrer.) D'luvilliers vs. New Orleans, 5 Rob. {La.), 123. (Promis- sory notes misdescribed, the notes being annexed and being sufficient.) Mercer vs. Herbert, 41 Ind., 459. (Answer alleged sub- stantially, and copied an agreement under which the note was to be paid or partly paid by application of any dif- ference between the par value and actual value, at a given date, of certain stock sold by defendant to plain- tiff. Demurrer that the answer did not allege at what price the stock was sold sustained. Held, error. The defence was based wholly on the contract, a copy of which was given, and referred to as such, and which spoke for itself as a part of the pleading, and the sub- stance need not be alleged.) [According to some authorities this rule may be restricted to the terms and nature of the instrument, as distin- guished from mere recitals. See § 228, Allegation of Insteument.] 'Thus a description, in the exhibit, of the premises or subject of the contract, aids an omission in the descrip- tion in the pleading. Duncan vs. Elam, 1 Rob. {La.), 185. (Here, on an application for an order of seizure and sale . of slaves, the mortgage being annexed to the petition, which concludes with a prayer that the mortgaged slaves be seized and sold, all the slaves mentioned in the mort- gage may be included in the order of sale, though a part of them are not named in the petition.) Parker vs. Feas, 79 Ind., 235, (Copy of mortgage filed § 262. J For Insufficiency ; Particular Allegations. 225 and made part of each paragraph of complaint. Held, error to sustain demurrer on the ground that the de- scription of the land in the mortgage was so uncertain as to avoid the mortgage : because the allegations dif- fered somewhat from the mortgage filed, and the de- scription in the mortgage was not so uncertain as to avoid the mortgage, and the exhibit should control the allegations.) ' McDonough vs. Kane, 75 Ind., 181. (Statements in the complaint repugnant to the legal effect of the contract filed and made part of the complaint are no cause for demurrer.) • § 252. McGuses fornot furnishing exhibit. — The omis- sion to comply with the statute requiring an instrument sued on, etc., to be made an exhibit by annexing or filing a copy, is excused by an allegation in the pleading that the adverse party has wrongfully obtained and retains possession of the document.^ So also by an allegation that the instrument has been deposited by the parties Jointly in the private custody of a third person,^ especially if the depositary refuses to sur- render it or to give a copy.* But it is not an excuse to allege that the original is on file in a public office,* even if it be also alleged that the officer refuses to surrender it,^ for it is subject to pub lie inspection, and the pleader may furnish a copy. It is a sufficient excuse for not complying with the statute to allege that the original has been lost, and can- not be found, although diligent search has been made.® ' Bank of Commerce vs. Hoeber, 8 Mo. App., 171. Otherwise, perhaps, if the possession is not wrongful, and request and refusal are not alleged. Dull vs. Bricker, 76 Fa. St., 255. [But in Larimore vs. Wells, 29 OMo St., 13, it was held that an allegation of such excuse is immaterial, and tenders an immaterial issue. It makes no difference, as reason for not annexing or filing notes, whether defendant's possession was wrongful or rightful.] 'Bowling vs. Hax, 55 Mo., 446. (But a mere allegation 226 Abbott's Brief on thk PLEADnsros. Demurrer. [§ 353. that it is in the possession of a third person, by whom it is wrongfully withheld, was hdd not sufficient in Hook vs. Murdoch, 38 Mo., 224, the Court saying that the statute requires filing unless the petition shows "loss er destruction.") ' Wells vs. Sutton, 85 Ind., 70. ' Con well vs. Hill, 14 Ind., 131. (Bank notes on file in the auditor's office.) '^Anderson School Tp. vs. Thompson, 92 Ind.., 556. (Error to overrule demurrer.) But contra. State, Wolf vs. Engelke, 6 Mo. App., 356. (Holding that when a bond sued on is on file in another court, the statutory provision as to filing does not apply, and failure to file is'no ground for dismissal.) " Boots vs. Canine, 58 Ind., 460. Eyan vs. Bank of Nebraska, 10 Neb., 524 ; Blasingame vs. Blasingame, 24 Ind., 86. (Holding also that an affidavit to the loss, etc., such as is required in equity practice, is not necessary under the Code.) § 253. Amended 'pleading. — The omission to comply with the statute in an amended pleading is not aided by the fact that a copy of the instrument was filed with the original pleading, for that is superseded by the amend- ment. McEwen vs. Hussey, 23 Ind., 395. Holdridge vs. Sweet, 23 Ind., 118. § 254. State practice in U. 8. Ccrnrt. — State statutes and rules of coui-t requiring documents pleaded to be furnished or filed, apply in the United States Circuit and District Courts in the same State in civil causes other than in equity, admiralty, and in rem, for forfeiture. This follows from Bell vs. Mayor, etc., of Vicksburg, 23 How. ( TJ. S.), 443. (So holding as to sworn denials ; and from the principles stated in §§ 27-31.) DULY. [See also Authority, Contracts, above, and Judg- ments, below.] § 255. An issfiiahle allegation. — It has been held at common law/ and in equity,^ and in some cases undel" the §255.] For Insufficiency; Paeticulae Allegations. 227 New Procedure,^ that an allegation that a thing was "duly" done, without stating particulars, is a mere con- clusion of law and insufficient on demurrer. But that if the allegations of the pleading show what the I'equisite particulars are, then an allegation that the act was " duly " done sufficiently implies that those re- quisites were fulfilled.* Hence it was also held, in cases where the general public law of which the Court is bound to take notice prescribed all the requisites, that this short allegation was enough without stating the particulars required by law.^ And an allegation that it was done according to law, or pursuant to the statute, was equally sufficient.® It is the better opinion, at least under the New Pro- cedure, that an allegation that a thing was "duly" done (if no particulars implying the contrary be added) is, on demurrer, a sufficient allegation as to. the doing of it, whenever the particulars are prescribed by law.'' There may be an exception where it was the official or Judicial act of a third person not having general jurisdiction ; and even there it is made sufficient by the usual provision of the codes as to pleading a " judgment or other determi- nation," provided the existence of the necessary proceed- ing is shown, and the tribunal or officer designated. ' Gillett vs. Fairchild, 4 Ben. (JV. Y.), 80. Beach vs. King, 17 Wend., 197. '' Cruger vs. Halliday, 11 Paige, 320 ; rev'g 3 Edw. Ok, 565 ; jStorfs Eq. PI, 251. ' Secor vs. Pendleton, 47 Hun (JSf. Y.), 281 ; Forest vs. Mayor, etc., of N.' Y., 13 Ahb. Pr., 350 ; Dayton vs. Connah, 18 How. Pr. {N. Y), 327. s. p., Am. Mut. Aid Soc. vs. Helbum, 85 Ky., 1 ; s. c, 7 Am. St., 571 ; Hayden vs. Bohlsen, 7 Ey. Law Rep., 749 ; Gull Elver Lumber Co. vs. Keefe {Dak.), 41 North West., 743 ; Myers vs. Machado, 6 Ahb. Pr. {N. Y.), 198 ; s. c, 14 How. Pr., 149 ; 6 Duer, 678 ; Carter vs. Koezley, 9 Bosw. {N. Y.), 583 ; s. c, 14 Abb. Pr., 147. * Dictum in Cruger vs. Halliday, 11 Paige, 320. 228 Abbott's Beibf on" the Pleadikgs. Demukebe. [§ 256. ' See § 140, Appeaeance. s. p., Polly vs. Saratoga, etc., R Co., 9 Barh. {N. Y.), 449. [Gordra, Trow City Directory vs. Curtin, 36 Fed. Sep., 829 ; Eoda vs. Alameda County, 52 Cal, 350.] ' Burdett vs. Greer, 8 Pick. {Mass.), 108 ; Sewall vs. Valen- tine, 6 id., 276. ' Robertson vs. Perkins, 129 U. 8., 238 ; s. c, 32 Law ed., 686 ; 9 8upm. Ct. Rep., 279. Eubush vs. State of Indiana, 112 Ind., 107 ; s. c, 11 West. Sep., 663 ; 13 North East. Rep., 877. B. C. E. & M. E. Co. vs. Stewart, 39 Iowa, 267 ; Barthol vs. Blakin, 34 id., 452. 'Sanborn vs. Chamberlin, 101 Mass., 409. Hoag vs. Mendenhall, 19 Minn., 335 ; Webb vs. Bidwell, 15 id., 479. Becker vs. Washington, 94 Mo., 375 ; s. c, 13 West. Bep., 589 ; s. c, 7 South. West. Rep., 291. Schlnter vs. Bowery Sa-vings Bk., 117 N. Y., 125 ; Loril- lard vs. Clyde, 86 id., 384 ; People ex rd. Crane vs. Eyder, 12 id., 433 ; People ex rd. Hawes vs. Walker, 2 Abb. Pr. {N. Y.), 4!21; s. c, 23 Barb., 304; Peoples Mayor of N. Y., 8 Abb. Pr. [N. Y.), 7 ; s. c, 28 Barb., 2il0 ; French vs. Willett, 10 Abb. Pr. (N. Y.), 99 ; s. c, 4 Bosw., 649 ; Piatt vs. Stout, 14 Abh. Pr. {N. Y.), 178 ; Bates vs. Merrick, 2 Hun {N. Y.), 568 ; mem. s. c, 5 Supm. Ct. {T. dt C), 701 ; Horner vs. W^ood, 15 Barb. (JV. Y.), 371 ; Fowler vs. N. Y. Indemnity Ins. Co., 23 Barb. {N. Y.), 143 ; Phelps vs. Piatt, 50 Barb. {N. Y.), 430 ; McCorkle vs. Herrman, 22 State Bep., 519 ; s. G.,bN. Y. Supp., 881 ; Cheney vs. Fisk, 22 How. Pr. (iV. Y.), 236. s. p., Burns vs. People, 59 Barb. {N". Y.), 531 ; Gibson vs. People, 5 Hun (JV. Y.), 542. (Holding it sufficient even in indictment.) Trustees of School Sec. 16 vs. Odlin, 8 Ohio St., 293 ; Trustees of Oliio State Univ. vs. Ayer, 19 Weekly Cinn. L. Bull, 11, 13. , • i [Clearly, where the allegation would be sufficient on de- murrer without the word " duly," the insertion of that word should not be held to Titiate.] DUTY. § 256. A mere conclusion. — ^An allegation that it was the duty of a person to do an act is a mere conclusion of law, and insufficient without a statement of the facts.* The relation,^ contract,* or usage* relied on to raise § 257.] For Insufficiency ; Particular Allegations. 229 the duty, or the facts relied on to bring the case within a statute^ raising the duty, must lie pleaded sufSiciently to show the duty. This being done, adding that it therefore became the duty, etc., is superfluous,® but does not vitiate.'' ' City of Buffalo vs. HoUoway, 7 N. Y., 493 (the leading Am. case). 2 CUtt. PI, 16 Am. ed., 477 ; citing Brown vs. Mallet, 5 C. B. {M. G. & S.), 599, 615 ; 17 L. J. G. P., 227. City of Norwich vs. Breed, 30 Conn., 535, 550. (Holding the rules the same of a duty to the public as of private duty.) Mayor, etc., of Newark vs. Stout (N. J. L., 1889), 18 Atl. Rep., 943, 946. ' Taylor vs. Atlantic Mut. Ins. Co., 2 Bosw. {N. Y.), 106. (Duty to raise a sunken vessel.) ° City of Buffalo vs. HoUoway, above. (Duty of contractor to guard against injury.) Casey vs. Mann, 5 Ahh. Pr., 91. (Duty of lessor to repair.) McCune vs. Norwich City Gas Co., 30 Conn., 521. (Duty of gas company to furnish applicant.) 'The better opinion is that an allegation that by the usage of the trade or place, etc., it was the duty of, etc., is a sufficient allegation of the usage, on demurrer. Greg- ory vs. Oaksmith, 12 Hoiu. Pr. {N. Y.), 134. Contra, Kleekamp vs. Meyer, 5 Mo. App., 444. ' Williams vs. Inhabitants of Taunton, 82 Mass., 288. Smith vs. Wright, 27 Barh. {N. Y.), 621 ; rev'g 24 id., 170 ; Brennan vs. Lachat, 14 Daly, 197 ; s. c, 6 N. Y. State Rep., 278 ; aff'g 5 id., 882. 'White vs. Snell, 9 Pick. {Mass.), 16. ' Brown vs. Mallet ; City of Buffalo vs. HoUoway (both above cited). EASEMENT. § 257. Ground of right. — In pleading an easement it is not essential to state details as to how it was acquired. Cooledge vs. Learned, 25 Mass. (8 PicA.), 504 ; s. p., Blake vs. Everett, 83 Mass., 248. French vs. Martin, 24 N. H., 440 ; s. c, 57 Am. Dec., 294, [Compare Brief on the Facts, § 408.] 330 Abbott's Brief on the PLEADiiTGS. Demurrek. [§ 258. ELECTION (of Eights and Eemedies). § 258. JjThder optional contract. — A party relying, for affirmative relief, on a right of election given him by an express option resei-ved in a contract, must expressly al- lege and prove the election made by him. Post vs. Springsted, 49 Mich., 90 ; Howard vs. Farley, 3 Roht. {N. Y.), 599. [As to Election under special contracts, etc, see Note in 23 Ahh. N. C, 145.] FOEEIGN LAW. [See also Statutes.] § 259. General allegation. § 260. Laws of sister State. § 259. General allegation. — It is the better opinion that an allegation of foreign law by its legal effect is sufficient on demurrer. Hanley vs. Donohue, 116 U. S., 1, 7. (Allegation that "by the law and practice of Pennsylvania the judgment so rendered against the two defendants aforesaid is in that State valid and enforceable against Charles Donohtie and void as against John Donohtce," sufficient on demurrer.) Berney vs. Drexel, 33 Hun, 34 ; reaff'd on reargunieut in id., 419, and affg 63 Rotv. Pr., 471. (Allegation "that under and by virtue of the laws of France " the title to the property in question vested immediately upon tes- tator's decease in the plaintiffs, is an allegation of fact, not of law, and sufficient.) Savings Association of St. Louis vs. O'Brien, 51 Htm, 45 ; s. c, 20 State Rep., 826 ; 3 N. Y.,Supp., 764. (Complaint setting forth statute of sister State, and adding that by its provisions as defined, construed and enforced by the Courts of such State, when any railroad company of such State becomes dissolved any creditor may have an action, etc. Held, that this allegation as to the mean- ing of the statute was admitted by the demurrer.) s. P., Schluter vs. Bowery Sav'gs .Bk., 117 N. Y., 125. (Allegation that said surrogate " had jurisdiction, and was duly authorized by the laws of said State," etc., sufficient at trial.) iContra, McLeod vs. Conn. & Pass. E. Co., 58 Vt., 727 ; § 261. J For Insufficiency ; Particular Allegations. 231 s. c, 7 Eastern Rep., 105. (Holding it not enough on demurrer to allege that by the law of, etc., it was the duty of defendant, etc.; but the law must be set out.) s. P., Throop vs. Hatch, 3 Ahh. Pr., 23.] § 260. Laios of sister State. — A State Court may take judicial notice of the laws of a sister State;' and ought to do so when a federal question is raised thereon, for the Supreme Court of the United States is then the Court of last resort, and would be bound to do so on error or appeal.* The United States Courts are bound to take judicial notice of the laws Jiot only of the State in which they are sitting, but also of all the others.'^ Paine vs. Schenectady Ins. Co., 12 R. I., 440 ; s. c, 5 Re- porter, 221. (Eule that appeal pending does not nullify effect of adjudication.) Hobbs vs. Memphis, etc., E. Co., 9 Heisk. (Tenn.), 873. (Judicial notice taken of law of sister State, giving ac- tion for personal injuries.) 'State of Ohio vs. Hinchman, 27 Pa. St., 479. (Jurisdic- tion of Probate Court to entertain habeas corpus.) ' Fourth Nat'l Bk. vs. Francklyn, 120 U. 8., 747 ; Owings vs. Hull, 9 Pet. ( U. S.), 607 ; Newberry vs. Robinson, 36 Fed. Rep., 841. The rule is the same though the action were commenced in a State court where the complaint was demurrable for not pleading the statute. Breed vs. Northern Pacif. R. Co., 35 Fed. Rep., 642. FORMER RECOVERY. [See also Judgment.] § 261. Disclosed as a bar. — A count is bad on de- murrer if it shows a foi-mer recovery which has merged the cause of action and bars the second action. Edson vs. Girvan, 29 Hun {N. Y.), 422, 425. (Otherwise of a separate count, or a supplemental pleading, stating a former recovery.) 232 Abbott's Brief on the Pleadings. Demukeee. [§ 262. FEAUD. [See also Conpedeeacy, Collusion, Intent.] § 263. General allegation not enough. § 264. What details necessary. 263. Allegation of evidence. 365. Intent. § 262. General allegation not enough. — At Common Law/ in Equity,^ and under the New Procedure,^ a gen- eral allegation of fraud, with no particulars, is not suffi- cient even on demurrer. The reason is, that even where fraud is a conclusion of fact, it is a conclusion to be drawn by the Juiy or the Court, not a fact to which a witness can testify directly, by that word ; and therefore the facts which constitute it and must be proved in order to establish it must be al- leged. ' "Ward vs. Luneen, 25 lU. App., 160. Connor vs. Dundee Chem. Works, 50 N. J., 257; s. c, 11 Gentr. Bep., 222, citing Lord vs. Brookfield, 8 Vroom, 552. Pearce vs. Watkins, 68 Md., 534 ; s. c, 12 Gentr. Rep., 127 ; s. c, 13 Atl, 376. Keller vs. Johnson, 11 Ind., 337. Otherwise in a merely responsive plea at common law. Id. ; 1 GUtt. PI, 16 Am. ed., 608. Evans vs. Stone, 80 Ky., 78. ' Van Weel vs. Winston, 115 U. 8., 228 ; s. c, 29 Law. ed., 384, 6 Supm. Bep, 22 ; United States vs. Atherton, 102 U.S., 872; Moss vs. Riddle, 5 Grancli {U. 8.), 351. [Compare contra, Christmas vs. Bussell, 5 Wall., 290.] Penny vs. Jackson, 85. Ala., 67; s. c, 4 8duth. Bep., 720. Howard vs. Pensacola, etc., R. Co., 24 Fla., 561 ; s. c, 5 8outh. Bep., 356. Marsh vs. Sheriff (ilfd, 1888), 12 Gentr. Bep., 887; s. c, 14 Atl., 664. McGuire vs. Van Buren, Circ. Judge, 69 Mich., 593 ; s. c, 14 West. Bep., 187 ; s. c, 37 North West. Bep, 568. Messer vs. Stover, 79 Me., 512, 519 ; s. c, 5 Neiv Engl. Bep., 238, 11 Atl, 275. Smith's Admr. vs. Wood, 42 N. J. Eq., 563 ; s. c, 9 East. Bep., 178. Southall vs. Parish, 85 Va., 403 ; 8. c, 1 L. B. A., 641 ; s. c„ 7 South East. Bep., 534. ' Plummer ws. Brown, 70 Gal., 544 ; s.c, 12 Pa/yif. Bep, 464. Miller vs. Powers, 119 Ind., 79 ; s. c, 21 North East. Bep., 455. §365.] For Insufficiency : Particular Allegations. 233 Mills vs. Collins {Iowa, 1885), 25 North East. Rep., 109, 111 ; Kerr vs. Steman, 72 Jo%oa, 241 ; s. c, 33 North West. Rep., 654. Tepvel vs. Saunders County Bk., 24 Nebr., 815 ; s. c, 40 North West, 415. Wood vs. Amory, 105 N. T., 278 ; Kohn vs. Goldman, 76 N. Y., 284. Great "Western Despatch Co. vs. Glenny (Hamilton Go. Dist. a., 0.), 10 Am. L. Rec, 572. Supervisors of Kewanee Co. vs. Decker, 30 Wise, 624. § 268. Allegation of evidence. — An allegation of evi- dence of fraud is not sufficient if there is nothing to show that fraud is imputed as a ground of relief constituting a part of the pleader's case. Warner vs. Armstrong, Receiver (Oct. 20, 1888), 4 RaUway and Corporation Law Journal, 367. (Action for injunc- tion.) s. p., Fehlberg vs. Cosine, 5 N. Eng., 763, 16 R. I., 162 ; s. c. Index BB, 131, 13 Atl., 110. (Suit to reform a written contract : mistake not made out. Bill was dis- missed because it did not, as the Court construed its narrative, allege fraud.) Davy ojs. Garrett, 7 Gh. D., 489 ; Smith vs. Kay, 1 KofL. Gas., 763. § 264. What details necessary. — The rule that the facts constituting fraud must be alleged, does not require a de- tail of circumstances. It is enough if the misrepresenta- tion, the defendant's knowledge, and the plaintiff's igno- rance and reliance are alleged in an issuable form, though without setting forth all the evidence which may be ad- duced to prove them. United States vs. Bell Telephone, 128 U. S., 315. Oowin vs. Toole, 31 Iowa, 513. Place vs. Minster, 65 N. Y., 89, 99. (Opin. of Prof. DwiGHT as Comr. at p. 99 as to equity, at p. 102 as to common law.) § 265. Intent. — Actual fraud is not sufficiently al- leged unless it appears from the allegations that there was an intent to deceive. 334 Abbott's Brief on the Pleadings. Demuereb, [§ 366. Bartholomew vs. Bentlej-, 15 Ohio, 659. Zabriskie vs. Smith, 13 N. Y., 322 ; Morrison vs. Lewis, 49 N. Y. Super. Ct. (J. & 8.), 178 ; Coyle vs. Mes, 6 N. Y. State Rep., 194 ; Barber vs. Morgan, 51 Barb. {N. Y.), 116 ; Morse vs. Switz, 19 Row. Fr. {JST. Y.), 275 ; Ad- dingtou vs. Allen, 11 Wend. {J^. Y.), 375. [See Intent, below.] Intent or a reckless misstatement must be alleged. Fur- nas vs. Friday, 102 Ind., 129. Compare Derry vs. Peek, 14 App. Cos., 337. Allegation of injury suffered "by reason of the frauds" of defendant, wholly insufficient, Knapp vs. City of Brooklyn, 97 i\^. Y, 520, aff'g 28 Hun, 500. HEIR § 266. General allegation. — An allegation that one person was the sole heir of another is a conclusion of law, and if the facts of exclusive near relationship are not stated, is insufficient. Montgomery's. White, 10 Ky. L. Hep., 905 ; s. c, 11 South West., 10. (The Court say he should have alleged and proved that there were no nearer relatives entitled to take.) [Contra, in a declaration against an heir on an obligation of his ancestor, 2 Ghitt. PL, 16 Am. ed., title Heirs, etc.] [Compare St. John vs. Northrup, 23 Barb. (N. Y.), 25, holding such an allegation sufficient on the trial, s. p., Wainman vs. Hampton, 20 iV. Y. Weekly Big., 68.] ILLEGALITY. § 267. Disclosure of illegality on § 269. Reference to statute, pleader's part. 270. Foreign law. 268. Form of allegation of illegal- 271. Question left in doubt, ity. § 267. Disclosure of illegality on pleade7-'s part. — A complaint is bad on demurrer for insufficiency if it shows on its face that plaintiff's claim is illegal.' But if the allegation relied on as showing the illegal- ity is not material [i.e., not essential], — as where a con- tract sued on is stated as having been made on a day which fell on a Sunday, — the demurrer should not be § 268. ] Fob Insufficiency ; Particular Allegations. 235 sustained; for the pleader could establish his case by proving another day, and the variance would be im- material.^ ■ Dancy vs. Phelan, 82 Ga., 243. Western Un. Tel. Co. vs. Yopst, 118 Bd., 248 ; s. c, 3 L. R. A., 224, 20 North East, 222. Galland vs. Eosenfeld, {N. Y. Supm. (Jt.), N. Y. Daily Beg., June 28, 1876 (not reported). " Amory vs. McGregor, 12 Johns. {K Y), 287. Contra, see Western Un. Tel. Co. vs. Yopst (above cited.) § 268. Form of allegation of illegality. — A general allegation that an act or transaction was illegal ; or was illegal, unauthorized and void, or was contrary to stat- ute ; or not according to law; or the like, — without stating facts necessary to show illegality, — is a mere conclusion of law, and not sufficient on demurrer.^ If sufficient facts are alleged, the omission to add a formal characterization of the result as illegal,* or even inappropriately characterizing it as a fraud,* will not vitiate. ' Dickson vs. Burk, 6 ArTc., 412 {(Ectnm). "Hedges vs. Doem, 72 Cal, 520; s. c, 14 Pad/. Rep., 133. Pearce vs. Watkins {Md., 1888), 12 Centr. Rep., 127 ; s. c, / 13 Atl. Rep., 376. Griggs vs. City of St. Paul, 9 Minn., 246. Swart vs. Boughton, 35 Hun {N. Y.), 281. [Contra, Higgins vs. Pelton, 4 Cinn. L. Btd., 751.J Sprague vs. Parsons, 14 Abh. N. C. {N. Y), 320, aff'd as to this pointinll Civ. Pro. R.,Y! ; Clark vs. Bowe, 60 Eoio Pr. {N. Y.), 99 ; Smith vs. Lockwood, 13 Barb. {N. Y.), 209, 216. Eutter vs. Henry, 21 Ohio St., 129 ; s. c, 20 North East. Rep., 334; Pelton vs. Bemis {Ohio, 1886), 15 Cinn. Weekly L. Bui., 169. 'Eoberts vs. Mathews, 77 Ga., 458. (Conceding that greater strictness is required in suing to set off usury or recover back usurious payments.) Handy vs. St. Paul Globe Pub. Co., 41 Minn., 188 ; s. c, 4 L. R. A., 466 ; 29 Centr. L. J., 171 ; 42 N. W., 872. S. p., Peck vs. Doran & Wright Co. (Limited), 46 Hun 236 Abbott's Brief on the Pleadings. Demuerer. [§ 269. {JV. Y.), 454. (Illegality of wagering contract lield suf- ficiently shown by describing the course of dealing.) Nichols vs. Lumpkin, 51 N. Y. Super. Ct. {J. & S.), 88. 2 Chitt. PI, 16 Am. ed., 402, saying : " In a plea of illegal- ity the plaintiffs participation in the illegality mu&t be clearly shown ; Pellecat vs. Angell, 2 Cr. M. (& B. 311; but it is not necessary, after showing the illegality, to aver that there was no other consideration for the con- tract ; Davis vs. Holding, 1 M. & W., 159." ' Faircloth vs. De Leon & Bro., 81 Ga., 158. § 269. Reference to statute. — If the illegality depends on a statute, it is not necessary to refer to the statute (unless it be private, local or foreign); for the Court must take Judicial notice of it. Cassard vs. Hinman, 1 Bosw. {M. Y.), 207, aff'g 14 How. Pr., 84. 1 Chitt. PI., 16 Am. ed., 509. (Sunday law : citing Peate vs. Dicken, 1 Cr., M; & B., 422, 427.) § 270. Foreign law. — A pleading stating a trans- action which according to our law is illegal, is demurra- ble notwithstanding an allegation that it was authorized by the law of another State where the transaction in part occurred, unless the facts showing that the transaction was such as to be governed by the law of such other State are also alleged. ■^b'- Thatcher vs. Morris, 11 N. Y., 437. (Action for lottery prize drawn in Maryland, by the law of which the lot- tery was authorized. The Court, per W. F. Allen, J., says : " The Courts cannot, in the absence of an aver- ment to that effect, for the purpose of upholding a con- tract conceded to be immoral and declared illegal, pre-, sume that it was made in some other State or county in which such contracts are still tolerated. Neither is it a matter of defence, to be alleged by the defendant, that it was made within the State, and is, therefore, illegal. The legality and validity of the agreement, and the consequent liability of the defendant, are to be shown by the plaintiff by proper averments in the complaint") [As to pleading foreign law see §§ 259, 260.] § 272.] For Insufficibnot; Pakticulae Allegations. 237 § 271. Question left in doubt. — If, discarding mere conclusions of the pleader, all the facts alleged as consti- tuting illegality are consistent with lawfulness, a demurrer should not be sustained on the ground of illegality. [This appears to be the principle which controls. See the following cases, where, however, the principle is not directly discussed.] Donovan vs. Compagnie Generale Transatl antique {Sp. T., 1875), 39 N. Y. Super. Ct. {J. & /S'.), 519. (The de- fendant should be held to clear and positive averments. Action against a carrier for non-delivery of a certain case of goods : answer that plaintiff delivered baggage and merchandise to the carrier at the time alleged, with the intention of its being smuggled, and that on arrival she did smuggle, etc. Hdd, the averment was defective in that it did not allege that the particular case in question was shipped with such intent. Motion to strike out. Van Voest, J., said : " In pleading de- fences of this character, to avoid liability, the defend- ant should be held to clear and positive averments, and should leave no room for doubt that he meant to charge distinctly that," etc.) Standard Oil Co. vs. Scofield, 16 Ahh. N. C, 372. (Hold- ing that a contract sued on will not, upon demurrer, be deemed void as in unlawful . restraint of trade, and therefore contrary to public policy, if capable of a con- struction consistent with a lawful intent; although, upon a trial where all the facts are disclosed, it might appear that the arrangement was illegal, and to effect a combination inimical to the interests of the public.) INAEILITY. § 272. Mere conclusion. — A mere general allegation of inability, without anything to indicate the Isind or "nature thereof, is insufficient. ' Chitt. on PI, 16 Am. ed., 335, citing 2 Saund., 129, 132, to the effect that a declaration stating that arbitrators could not make their award, without showing the spe- cial cause which prevented them, was insufficient, s. P., Temple ton vs. Sharp, 10 Ky. L. Bep., 499; s. c, 9 South West. Bep., 507. (Allegation that owing to sick- ness defendant was in no condition to execute a legal note, bad.) 238 Abbott's Brief on the Pleadings. Demubkek. [§ 373. INDEBTEDNESS. § 273. ^^ Indebted,^'' or ^'■due^'' as a conclusion. — ^An allegation that a person is or was "indebted," even though adding, " for moneys received," etc., or " for ser- vices," etc., describing the ground of indebtedness, is a mere conclusion, and insufficient on demurrer,' unless details of time, place, request, etc., are given sufficient to amount to a substantial allegation of facts showing lia- bility.^ It may be otherwise where the indebtedness is merely collaterally relevant, and not directly involved, as where the existence of other creditors than plaintiff is alleged.^ An allegation that a sum is due, if by the context it ap- pears to mean merely that a person is indebted, is a mere conclusion,* and bad on demurrer except where sanctioned by statute;^ but where facts constituting indebtedness are substantially alleged, "due" may be understood to mean payable, and is an allegation of fact sufficient to show matuiity of the debt.^ ' Eoberts vs. Treadwell, 50 Cal., 520 ; s. p., O'Connor vs. Dingley, 26 id., 21. Millard vs. Baldwin, 69 Mass., 484 ; Hollis vs. Eichard- son, 79 id., 392 ; Codding vs. Inhabitants of Mansfield. 73 id., 272. Holgate vs. Broome, 8 Minn., 243. Gray vs. Kendall, 10 Abb. Pr. (N. T.), 66; s. c, 5 Bosw.. 666 ; Lienan vs. Lincoln, 2 Duer (iV._ T.), 670 ; Merritt vs. Millard, 5 Bosw. (W. Y.), 645 ; Bailey vs. Eichmond, 49 N. Y. Super. Ct. (J. & 8.), 519. [Contra, Waters vs. Clark, 22 Hoiu. Pr. {N. Y.), 104.] Crane vs. Lipscomb, 24 So. Car., 430, 437. Boeder vs. Brown, 1 Wash. Terr., 112. Otherwise if the indebtedness is alleged to be on an ac- count. Moffet vs. Sackett, 18 N. Y., 522. An allegation that the party was " bound," made as es- tablishing the liability sued on, but without stating facts showing that he was bound, is insufficient on de- murrer. Casey vs. Mann, 5 Ahh. Pr., 91. (Action for negligence ; against owner alleged to be " bound to re- pair.") § 274.J For Ixslfficiisncy ; Particular Allegations. 239 s. p., Berley vs. Newton, 10 How. Pr., 490. (Error to submit it to jury to find whether party was " bound to know.") Otherwise of an allegation that by his writing obligatory, specifying date, etc., he acknowledged himself bound, stating the terms of the obligation according to legal effect. Gould's PI, 57. ' Allen vs. Patterson, 7 N. Y., 476. ' See Neudecker vs. Kohlberg, 81 N. Y., 296. * Tooker vs. Arnoux, 76 N. Y., 397. Bailey vs. Eichmond, 49 Super. Ct. {J. & 8.), 519. (Alle- gation that defendant drew more than was due him as salary, or for any cause whatsoever. ) [ Compare Roberts vs. Treadwell, 50 Gal, 520.] [Contra, Tessier vs. Reed, 17 JSfeb., 105 ; s. c, 22 North West. Sep., 225.] Eosenlower vs. Steia, McAdam, J. (not reported). (Alle- gation that between, etc., the parties had dealings, and that on, etc., there was due from defendant to plaintiff, "on account of said dealings," a specified sum, without otherwise stating for what, is not sufiieient.) Compare Tucker vs. Lovejoy, 73 Wise, 66 ; s. c, 40 North West. Rep., 627. (Allegation of services rendered in 1873, and that compensation became due in 1884. Held, that the latter allegation was a mere conclusion, and that the claim was barred by the statute of limitations.) ' See §§ 198, etc. " Smith vs. Milton, 133 Mass., 369. Allen vs. Patterson, 7 N. Y., 476; s. P., McKyring vs. Bull, 16 id., 297. INSANITY. [See also Inability.] § 274.. General allegation. — An allegation that a per- son " was of unsound mind, and for that cause legally in- capable of making" the transaction which the pleader seeks to impeach, is, on demurrer, a sufficient allegation of the fact of mental incapacity. Eiggs vs. American Tract Soc, 84 N. Y., 330, rev'g on an another point 7 Ahh. N. C, 433. [For other cases see Moore vs. Francis, 20 N. Y. State Bep., 641; s. c, 3 N. Y. Supp., 162 ; Valentine vs. Lunt, 115 N. Y, 496, rev'g 51 Hun, 544 ; Be Kohler's Estate, 79 340 Abbott's Brief on the Pleadings. Demubbee. [§ 375. Cal., 313 ; s. c, 21 Paxnf. Rep., 758 ; Byrd m. Nunn, 25 WeeUy Eep. {Engl), 749; Ghasky's Estate, 57 Gal, INSOLVENCY. § 275. — Insolvency a fact, hut not always enough. — That a person or corporation was " insolvent," is an alle- gation of fact.^ Where it is necessary to show that it was useless to endeavor to collect from him, it must also be shown that he had no property out of which the demand, or part thereof, could be collected.* 'Brown vs. Carbonate Bank (JJ. 8. G. Gt. Golo.), 34 Fed. Rep., 776. (Creditor's suit. Hdd, that evidence of in- solvency need not be alleged.) " Smythe vs. Scott {Ind., 1886), 6 North East. Rep., 145. (Action against indorser.) s. p.. Thorp vs. Munro, 47 Hun {N. Y.), 246. (H6re an al- legation of the insolvency of the executor, and that he had expended the personal assets of the estate, was hdd admitted by demurrer ; so that no accounting was necessary to charge a legacy on the real estate.) INTENT. [See also Featid and Malice.] § 276. General allegation. — An allegation of intent in an act past is an allegation of fact, admitted by de- murrer.* Otherwise if details are stated which fail to bear out the allegation,* or which indicate a different intent.^ An allegation of intent as to a future act, if the mere ascription of a purpose which must be unknown, is not necessarily admitted by demurrer.* ' Piatt vs. Mead, 9 Fed. Rep., 91. (Intent to defraud cred- itors by a conveyance.) Morrison vs. Lewis, 49 W. T. Super. Ct. {J. & S.), 178. (Replevin for goods bought by fraud. Allegation of false representations to mercantile agency with intent to obtain credit and induce merchants and others to sell. Held, sufficient allegation of intent to deceive plaintiff.) § 277. J For Insufficiency; Particular Allegations. 341 'Dillon vs. Bernard, 21 Wall. {U. S.), 430; Taylor vs. Holmes, 14 Fed. Sep., 498, 509. Wood vs. Amony, 105 N. Y., 278. (Allegation that con- cealment by defendant in taking advantage of plaintiff's ignorance was done witli intent to deceive and defraud, insufficient if the concealment alleged was not in viola- tion of any duty of disclosure.) 'Hall vs. Bartlett, 9 Barb. (JV. Y.), 297. (Allegation that defendant, an attorney, bought a mortgage with intent to sue on it, followed by an allegation that he proceeded to foreclose by advertisement.) * Compare N. T., Ontario, etc., Ey. Co. vs. Davenport, 65 How. Fr. (N. Y.), 484. (Complaint to remove cloud by assessment sale : allegation that comptroller did not intend to cancel the sale, but intended to give a deed, held sufficient. Stone vs. Oconomowoc, 71 Wise, 155 ; s. c, 36 North West. Hep., 829. (Allegation that city proposed to use city property " precisely as if the city were a private corporation," not admitted by de- murrer.) And see § 37, Prediction ; and § 265, Intent TO Defraud. JUDGMENTS (and Other Determinations of Courts and Officers.) [See also Foreign Law and Documents.] § 277. General allegation enougli. § 283. Allegation if remaining in force. 278. — as to Couit of sister State. 283. Jurisdiction of original cause of 279. Special jurisdiction in sister action. State. 384. Statutory short allegation: — 280. United States Court practice, — "duly given or made." in Court of first instance. 285. — judgment, etc., of Court of 281. — on error or appeal. U. S. or sister State. § 277. General allegation enougli. — In pleading a Judgment of a Court of general jurisdiction/ or of a Court of local JTirisdiction created by a public statute of which the Court entertaining the present action is bound to take judicial notice,^ it is not necessary to allege the facts giving jurisdiction, nor to set forth the proceedings.^ It is not essential to allege that the judgment was " duly " given or made, if the Court was one of general jurisdiction.* ' Butcher vs. Bank, 2 Kan. 70. (This was not necessary at common law. Citing 2 Ghitty's Fl., p. 414, N. C; 242 Abbott's Brief osr the Pleadistgs. Demurker. [§ 278. Comyns' Dig. tit. Pleader, 2 W., 12, and B., 18. The Code has not changed this as to judgments of Courts of general jurisdiction.) Masterson vs. Matthews, 60 Ala., 260. Burnes vs. Simpson, 9 Kans., 658. Hansford vs. Van Auken, 79 Ind., 157. Holmes vs. Campbell, 12 Minn., 221. " Spaulding vs. Baldwin, 31 Ind., 376. ' Biddle vs. Wilkins, 1 Pet. {U. S.), 686, 692. ' Eheinhart vs. State, 14 Kans., 318. _ § 278. — as to Court of sister State. — It is the better opinion that the rule that facts showing jurisdiction need not be alleged in pleading a determination of a Court of general jurisdiction, applies to determinations of such Courts in sister States. Brackman vs. Taussig, 7 Colo., 561. s. p., Butcher vs. Bank, 2 Kans., 70. Specklemeyer vs. Dailey, 23 Nebr., 101 ; s. c, 8 Am. St., 119 ; s. c, 36 North West. Pep., 356. (And Court will take judicial notice that Circuit Court of sister State is a Court of general jurisdiction.) , Rugers vs. Odell, 39 N. H., 452. [And see Mink vs. Shaffer, 124 Pa. St., 280 ; s. c, 23 W. N. C, 348 ; 16 Atl. Rep., 805 ; 46 Phila. Leg. Int., 240 ; 19 Pitts. L. J. N. S., 455. (Statement in assumpsit, under the Pennsylvania Act of 1887, based on an Iowa judgment.)] Eeid vs. Boyd, 13 Tex., 241. Jarvis vs. Robinson, 21 Wise, 523. Tenney vs. Townsend, 9 Blatchf. (C. Ct. U. 8.), 274. s. p., Paine vs. Schnectady Ins. Co., 12 R. L, 440, 5 Reporter, 221. (Holding that the Court might take judicial notice of the laws of the sister State.) [See also cases under § 260, Foreign Law.] iContra, Ashley vs. Laird, 14 Ind., 222 ; Gebhard vs. Gai- nier, 12 Bush (Ky.), 321 ; Harns vs. Kunkle, 2 Minn., 313 ; Smith vs. MuUiken, 2 id., 319. § 279. Special jurisdiction in sister State. — In plead, ing the judgment of a court of special and limited juris, diction in a sister State, the facts necessary to show ju~ risdiction of the subject-matter and of th., 409. Hildreth vs. Becker, 2 Johm. Gas. {N. Z), 339. » 1 CUtt. PI, 16 Am. ed., 266. Lowry vs. Dutton, 28 Ind., 473. McLeran vs. Morgan, 27 Ark., 148. In an action against surTiving partners as such, though naming the deceased, it is only the survivors who are to be deemed intended by the words " said defendants." Schimmelpennick vs. Turner, 6 Pet., 1 ; s. c, 8 Law. ed., 297. § 301. Title cmd hody of pleading. — If the allegations are" appropriate to an action by or against a party in an official or representative character, and it sufficiently ap- pears, by designating him as suing or sued in that ca- pacity in the title of the cause, that he appears or is joined in that capacity, a demurrer does not lie for not repeating such designation in the body of the complaint.* 358 Abbott's Bkibf on the Pleadings. Dbmukrbr. [§ 302. Conversely, if it sufficiently appears by such designa- tion in tlie body of the pleading, the complaint is not de- murrable for not containing the same statement in the title.2 ' Stanley vs. Chappell, 8 Oow. (N.Y.), 235. "- Plant vs. Plant {N. J., 1888), 12 Cent. Bep., 239 ; 13 Atl. Sep., 849. The word " as" inserted between the name of the party and his official description is sufficient, but not conclu- sive. Stilwell vs. Carpenter, 2 Abb. N. G. {N. F.), 238. § 802. Singula/)' and plwral. — ^The use of the word "plaintiff" or "defendant" in the singular instead of in the plural will not sustain a demurrer under the New Procedure if it can be cured by justly regarding it as a clerical error. ChamberHn vs. Kaylor, 2 E. D. Smith, {N. Y.), 134. At common law it might sustain a special demurrer. GUtt. PI., 16 Am. ed., 266. NECESSITY. § 303. Allegation of fact. — An allegation that a thing was necessary, the purpose being shown, is an allegation of fact sufficient on demurrer,^ unless particulars are stated which show the allegation to be unfounded. ' Spear vs. Bicknell, 5 Mass., 125, 131. Glover vs. Tuck, 1 HiU {N. T.), 66. (Allegation that plaintiff necessarily incurred expenses is equivalent to averring that he incurred necessary expenses.). Eoeder vs. Ormsby, 13 Abb. Pr. {N. K), 334 ; s. c, 22 How. Pr., 270. (Allegation that plaintiff was compelled to pay medical expenses equivalent to alleging that they were necessary.) 1 Chitt. PI., 16 Am. ed., 259. (Allegation that goods sup- plied were " necessaries," sufficient without stating what they were.) §384] For Insufficiency; Particular Allegatioits. 259 NEGLIGENCE. [See also Nuisance and Toets.] kj 304. General allegattoa. § 307. Indirect allegation. 305. Form of allegation. 308. Contributory negligenr,& 306. Agency. § 304. General allegation. — Negligence is a traversj^ ble fact ; and a general allegation, wdthout stating the particulars showing negligence, is enougli as against a demurrer for insufficiency.^ And a general allegation of negligence is equivalent to whatever degree of negligence is necessary to sustain. the pleading.* But a duty of care must be shown,* and the connec- tion of cause and effect between the negligence and the injuiy.* ■ Harper vs. Norfolk & "W. E. E. Co. {U. S. Cir. Ct. W. D. Va.), 36 Fed. Bm., 102. Mobile & M. E. Co. vs. Crenshaw, 65 Ala., 566. Hobson vs. New Mex. & Ar. E. Co. {Ariz.), 11 Pad/. Rep., 551. (Allegation that the casualty was caused by the negligence of defendants and its servants, suflBcient on general demurrer ; but would not be on special de- murrer.) Fordyce m. Merrill, 49 Ark., Ill ; s. c, 5 South. West. Bep., 329. Central E. E. Co. vs. Kitchens, 83 Ga., 83 (citing Harris vs. Central Eailroad Co., 78 Oa., 525); Central E. E., etc., Co. vs. Denson, 83 Ga., 266. Hammond vs. Schweitzer, 112 Ind., 246; s. c, 11 West. Bep., 661 ; 13 North East. Bep., 869 ; Ohio, etc., E. Co. vs. Walker, 113 Ind., 196 ; s. c, 12 West. Sep., 731 ; 15 North East. Bep., 234; Anderson vs. East, 117 Ivd., 126; 8. c, 2 L. E. A., 712; 19 North East. Bep., 726; 28 Centr. L. J., 362. Scott vs. Hogan, 72 Iowa, 614 ; s. c, 34 North. West. Bep., 4AL Louisville & N. E. Co. vs. Wolfe, 80 Ky., 84 ; Louisville & N. E. Co. vs. Mitchell, 87 Ky., 327 ; s. o., 8 South West. Bep., 706. Eolseth vs. Smith, 38 Minn., 14; s. c, 35 North West. Bep., 565. MacFadden vs. Missouri Pacif. E. Co., 92 Mo., 343. Davis vs. Guarnieri, 45 Ohio St., 470 ; s. c, 13 Wesi. Bep., 438; 15 North East. Bep., 350. 360 Abbott's Brief on the Pleadings. Demueree. [§ 305. Washburn vs. Chicago & N. W. E. Co., 68 Wise, 4:74.; s. c, 32 North West. Sep., 234. IBvi compare Jones vs. Old Dominion Cotton Mills, 82 Va., 140 ; s. c, 10 Va. L. J., 468 ; Hazard Powder Co. vs. Volger { Wyo), 18 Pmif. Sep., 636.] [See cases on Allegation and Proof of Negligence, col- lected in 22 Abb. N. C, 236.] ^ ' Nolton vs. Western E. E. Co., 15 N. Y., 444. Approved in Eockford, E. I. & St. L. E. E. Co. vs. Phillips, 66 JU., 551. As to the distinction between the necessary allegations of negligence and of nuisance, see § 317, and Note in 25 Abb. N. a, 195.] * 'Jennings vs. Fitchburg E. Co., 146 Mass., 621; s. c, 6 N. Eng., 269, 16 North East, 568. Hover vs. Barkhoof, 44 N. Y., 113. s. p., Middleton vs. Philadelphia Traction Co., 21 W. N. G. {Fa.), 528. [See § 256, Duty.] ♦Pike vs. Chicago & A. E. Co. {U. S. C. a. E. D. Mo., 1889), 39 Fed. Bep., 754. Pittsburgh, C. & St. L. Ey. Co. vs. Conn., 104 Ind., 64 ; s. c, 3 North East. Rep., 636. § 305. Form of allegation. — No particular form of words is necessary to make out an allegation of negli- gence. It is enough on demurrer that facts are stated which show negligence. City Council of Montgomery vs. Gilmer, 33 Ala., 116. Weis vs. City of Madison, 75 Ind., 241, 246. Sabine, etc., E. Co., vs. Hadnot, 67 Tex., 503, 505 ; s. c, 30 Am. & Eng. R. Gas., 197 ; 4 South West. Rep., 138. Mootry vs. Town of Danbury, 45 Gonn., 550, 555. (Omis- sion to say that the insuflScient construction of a bridge was negligent not enough to defeat the action by im- plying that it must have been malicious or wilful.) § 306. Agency. — An allegation of negligence on the part of a master or corporation is not insuflScient merely because the negligence must h?ve been that of an officer or servant, if it be imputable by law to the principal.' But an allegation of negligence on the part of the officer or servant is equally sufficient.^ § 308.] Fob Insufficiency; Particulak Allegations. 361 ■ 1 Cmt. PI, 16 Am. ed., 407. Bronson vs. Town of Washington, 57 Conn., 346. (Alle- gation that the town neglected to act, sufficient, on a statute making it the duty of the selectmen to act. But compare § 137, end of note 1, on p. 130.) Piercy vs. Averill, 37 Hun {W. Y.), 361 ; Oakley vs. Town of Mamaroneck, 39 id., 448. ' Farman vs. Town of Ellington, 46 Hun {N. Y.), 41. § 307. Indirect allegation. — An allegation that "by reason of the negligence" of the party in doing a specified act the injury was caused, is sufiicient on general de- murrer. Weinstein vs. Jefferson Nat. Bank, 69 Tex., 38 ; s. c, 5 ^m. St. Rep., 23 ; 6 South West. Rep., 171. (Depositor's action against bank. Answer that, by reason of plaintiff's "negligence and failure" to examine and report any errors or forgeries therein, it was " debarred the right and opportunity of protecting itself.") Compare Brown vs. Harmon, 21 Barb. {N. T.), 508. (Sim- ilar allegations in statutory action, bad ; tsut cured by verdict.) § 308. Contributory Tiegligence. — It is the better opinion that a complaint alleging defendant's negligence as the cause of the injury sufficiently implies that there was no contributory negligence on plaintiff's part.* In those jurisdictions where an affirmative allegation that the plaintiff was not negligent is required, a general allegation that he was without fault is sufficient, unless details also stated show that he was guilty of contribu- tory negligence.* An allegation that the person injured was without fault is not equivalent to an allegation of want of knowledge.^ ' O'Connor vs. Missouri Pacific E. Co., 94 Mo., 150 ; s. c, 13 West. Rep., 587 ; 7 Soufh West. Rep., 106. Lee vs. Troy Citizen's Gas-light Co., 98 N. T., 115. \Goidra, 1 Shearm. & R. on Negl., 192, § 113, approving the Indiana rule.] 262 Abbott's Brief os the Pleadings. Demurree. [§ 309. ' Ohio, etc., E. Co. vs. Walker, 113 Ind., 196; s. c, 15 NoHh East Rep., 234. ' Allen vs. Augusta Factory, 82 Ga., 79. s. p., Bra2dl Block Coal Co. vs. Gaffney, 119 Ind., 455 ; s. c, 4 L. B. A., 850 ; s. c, 40 AJh. L. J., 58 ; 21 North East. Rep., 1102. NON-PAYMENT. [See also §§ 191-196, Contract : Breach.] § 309. By whom. — When non-payment needs to be pleaded/ an allegation that the person shown to have been indebted has not paid is enough, even though, he be deceased. If a stranger or personal representative has paid, this is for the other side to show.* ' As to the cases where it must be alleged, see §§ 191, 196, Breach ; and § 329, Payment. ' Gray vs. Supreme Lodge, 118 Ind., 293 ; s. c, 20 North East. Rep., 833 ; 18 Ins. L. J., 431. (Assessment in in- surance case.) Wise vs. Hogan, 77 Col., 184 ; s. c, 19 Pacif, Bep., 278. (Non-payment of note of intestate ; so even under /California rule that plaintiff must allege non-payment.) NOTICE. [See also Demand.] § 310. Burden to allege. § 314. Keasonable notice. 811. General allegation. 315. Denial of notice. 312. Statutory requirement. 316. Knowledge.— Facts implying 313. Posting notices. notice. § 310. Burden to allege. — Where the right or liability depended on an event lying within the peculiar knowl- edge of the party pleading, he must allege notice to the opposite party. 1 Ghitt. PI, 16 Am. ed., 337. Wangler vs. Swift, 90 N Y., 38 (where various forms of the rule are stated) ; Clough vs. Hoffman, 5 Wend. {N. Y.), 499. Alabama, etc., R. Co. vs. Rowley, 9 Fla., 508. Harrison vs. Vreeland, 38 iV^. J. L., 366. [For other cases see Hobart vs. Hilliard, 11 Pick. (Mass.), 143 ; Cole vs. Jessup, 2 Barb. {N. Y.), 309.] § 314.] Foe Insufficiency; Particular Allegations. 363 § 311. General allegation. — Where formal notice is required, a mere allegation of " due notice" has been held insufficient. Kechler vs. Stumm, 36 N. Y. Super. Ct. {J. <& 8.), 337. (Notice to appear under meclianic's lien.) [For the better opinion see § 255, Duly.] § 312. Statutory requirement. — Under a statute for- bidding an action until after notice and the lapse of time, omission to allege the giving of such notice (or an ex- cuse for omitting it) and the lapse of the required time, is fatal on demurrer.^ Under a statute forbidding an action to be brought until after notice in writing, omission to allege that no- tice given was in writing is fatal.^ ' Porter vs. Kingsbury, 5 Hun, 597 ; affd in 71 N. T., 588. (Action on undertaking.) [^Compare § 184, Statutory Allegation of Peyformance of Condition.'] ' Commonwealth vs. Wilson, 7 W. N. C. {Pa.), 62. ' ^Compare §§ 146, 147, Audit ; §§ 287, 288, Leave to Sue ; and § 167, statute of frauds as to Contracts ; and Stat- utes.] § 313. Posting notices. — A general allegation, that notices were posted as the law requires, is sufficient with- out designating the places, if the fact is one collaterally involved. Sewall vs. Valentine, 6 Pick. (Mass.), 276 ; Burditt vs. Grew, 8 id., 108. [See also § 140, Appearance ; and § 255, Duly ; and § 335, Eegularity.] § 314. Reasonable notice. — Where reasonable notice was required, a general allegation of reasonable notice, with no particulars, is not enough. McCormick vs. Tate, 20 lU., 334. (General allegation 364 Abbott's Brief ok the Pleadings. Demukebr. [§ 315. of reasonable notice to remove a fence insufficient on demurrer.) Cruger vs. Hudson Eiver E. E. Co., 12 K T., 190. § 315. Denial of notice. — An allegation that an act was done without notice, or that no notice was given, is good.^ An allegation that no legal or sufficient notice was given is a mere conclusion of law, and insufficient.^ ' Wells County vs. Gruver, 115 Ind., 224 ; s. 0., 17 North East. Bep., 290 ; 15 West Eep., 130. ' Kedzie vs. West Chicago Park Comm'rs, 114 lU., 280 ; s. c, 2 North East. Eep., 183. (Per Cueiam : " If no notice was given, that is a fact and should have been stated. But if a notice was given the legality of which is denied, a question of law is raised, and the notice given should be specifically set out in order that it may be seen whether it conforms to the requirements of the law.") Harris vs. Eoss, 112 Ind., 314 ; s. c, 13 North East. Bep., 873. § 316. Ktiowledge. — Facts implying notice. — Where knowledge is sufficient, adding to the statement of the facts the general allegation, "which defendant well knew," is sufficient.* And an allegation of facts which necessarily imply knowledge is equivalent.^ Otherwise where notice is necessary.* • Fairchild vs. Bentley, 30 Barh. (N. T.), 147 ; McGinity vs. Mayor, etc., of N. Y., 5 Duer (N. Y.), 674. ' City of New York vs. Dimick, 2 N. Y. Supp., 46. s. p., Cleaveland vs. King, 132 U. S., 295. Lambert vs. Haskell (Gal.), 22 Pact/. Bep., 327, citing Pierce vs. Whiting, 63 Gal., 540. ' Betton vs. Williams, 4 Fla., 11. s. p., 1 CMtt. PL, 16 Am. ed., 403, (but conceding it cured by verdict.) § 318.] Foe Insufficiency; Particulae Allegations. 265 NUISANCE. [See also Negligence, and Toets.] § 317. General rule. — In a private action for nui- sance, facts showing plaintiff's right must be alleged ; ' and, as against the mere coutinuer of a nuisance created by others, notice or demand must be alleged.^ If the facts stated show a wrong, it is not necessary to use the word " nuisance," ^ nor to allege wrongful in- tent,^ nor negligence.® ' 2 GUtt. PI, 16 Am. ed., 513. Barry vs. McAyoj, 10 PliUa., 99. ' Groff vs. Ankenbrandt, 124 111., 51. (Presumption against tlie pleader that defendant was a mere continuer if con- trary be not indicated.) 'Laflin & Eand Powder Co. vs. Tearney (IK., 1890), 7 L. R. A., 262. ' 1 GUtt. PI, 16 Am. ed., 404. Wilkinson vs. Applegate, 64 Ivd., 98. ' See note in 25 Abb. N. G. {N. ¥.), 195, on the Distinction between Negligence and Nuisance. OFFER [See also Conteacts, and Demand.] § 318. To whom and where. § 319. Offer to do equity. § 318. To whom and where. — Where evidence that an offer has been made is necessary to put the adverse party in the wrong, a general allegation that an offer was made is insufficient. The allegation must show to whom ; * and if under the contract time ® or place ^ is ma- terial, the allegation must be specific in that respect. [But see §§ 182, 188, 198, allegation of performance of condition in Conteact.] ■ Mills vs. Gould, 1 Abb. N. G. {N. Y.), 93. " Vance vs. Blair, 18 Ohio, 532 ; s. c, 51 Am. Dec., 467. ' Mills vs. Gould (above cited). Clark vs. Dales, 20 Barb. {N. Y.), 42. s. p., Ferner vs. Williams, 14 Ahi. Pr. {K Y.), 215 ; s. c, less fully, 37 Barb. {W. Y), 9. (But holding that the word " duly" was enough as to place. Compare § 255, "Duly.") 266 Abbott's Brief on the Pleadings. Demukree. [§ 319. § 319. Offer to do equity. — In a case for the rule that he who asks equity may be required to do equity, an express offer in the bill or complaint to do such an act, specifying it, is essential, if, otherwise, the effect of a decree would be to leave it optional with plaintiff whether to enforce the decree or not ; ' but it is not es- sential if the relief sought is an accounting between the parties, for this itself involves the obligation to pay the balauce if any.^ Nor is it essential where the decree ought to be op- tional, — as in case of a suit to redeem ; * nor where the complaint shows that the offer would be an empty cere- mony ; * nor where the obligation to perform such an act is not admitted.^ Where an offer to pay an unliquidated sum is neces- sary, it is not essential to specify the sum offered, but it may be expressed as an offer to pay whatever may be found due.* ' Davis vs. Gaines, 104 U. 8., 386. (Bill to set aside ju- dicial sale.) United States vs. Pratt Coal and Coke Co., 18 Fed. Hep., 708. (Bill to cancel land patent for fraud.) Perry vs. Carr, 41 N. H., 371. (Bill to redeem from exe- ciition sale.) State Eailroad Tax Cases, 92 U. 8., 575, 617; National Bank vs. Kimball, 103 U.S., 732; Parmeley vs. St. Louis, etc., E. E.. Co., 3 DiU., 25. (Bills to enjoin collection of taxes : part legally due must be offered.) Silsbee vs. Smith, 60 Barb. {N. Y.), 372 ; s. c, 4"1 How. Pr. {N. Y.), 418. (Action to redeem from mortgage: offer held indispensable. The accounting here asked was not as to mutual transactions of the parties, but an accounting by the administratrix and widow, in order to determine the amount of liens.) [Contra, Beach vs. Cooke, 28 N. Y, 508, affg 39 Barh., 360. (But here there was a prayer for an accounting. Moreover, the question arose at the trial, where the objection is too late. 14 N. Y., 129.)] ' "Wells vs. Strange, 5 Ga., 22 ; Columbian Government vs. Eothschild, 1 Simons, 94, 103. (Bills for accounting : § 320. J For Insufficiency; Pabticular Allegations. 267 offer no longer held necessary, because a decree against plaintiff necessarily follows ii balance is against him.)] » Quin vs. Brittain, 1 Hofm. {N. Y.), 353. * Moore vs. Crawford, 130 U. S., 122 ; s. c, 32 L. ed., 878 ; 9 Sup. Ct. Hep., 447. (Bill to compel conveyance ; show- ing nothing to be due.) 'Gage vs. Kaufman, 133 U. S., 471. (Bill to remove a cloud on title created by a tax deed ; alleging that no taxes were due.) ' Story's Eq. PL, 196. (Adding that in point of practice a definite sum is commonly tendered in such cases, in order to recover costs if the sum found due falls below the sum tendered.) ORDINANCES. [See also By-Laws, § 153, p. 187.] § 320. How pleaded. — In the absence of statutory pro- visions, an ordinance or the material part thereof * must be pleaded by setting forth a copy as in case of other documents,^ or by setting forth the substance according to its legal effect.^ This rule applies not only to action for penalties, but to other pleadings.* A general allegation that the ordinance was adopted, or that it was promulgated, etc., " in all respects as re- quii'ed by law," is not sufficient.^ Otherwise in those jurisdictions where the statutory short form for plead- ing the determinations of officers of limited iurisdiction is sanctioned.® ' Green vs. Indianapolis, 25 Ind., 490. ' Green vs. Indianapolis, 22 Ind., 192. (Action for pen- alty. The Court say the ordinance must be pleaded by copy, like a statute of another State.) Barker vs. Mayor, etc., of N. Y., 17 Wend. {N. Y), 199. ' 1 Dm. Mun. Corp., § 413 (346), Uh ed., p. 481. [For the rule as to dot5uments generally, see § 226, etc. * Plant vs. Wormager, 5 Blcuikf. {Ind.), 236. (Plea justifying trespass.) People ex rel. Houston vs. Mayor, etc., of N. T., 7 How. Pr. [N. Y.), 81. (Alternative mandamus.) Pomeroy vs. Lappens, 9 Oreg., 363. (Eeturn to Hab. Corp.) 268 Abbott's Brief on the Pleadings. Demuekek. [§ 331, '■ Ormsby vs. City of Louisville, 79 Ky., 197. [But com- pare cases as to the use of the word " duly," in § 255.] An allegation that an ordinance was enacted by a town, by its board of trustees, they being alone authorized to enact ordinances, is a sufficient averment as to what officers enacted it. Vinson vs. Monticello, 118 Ind., 103; s. c, 19 N. East, 734. And if the authority to pass it was dependent upon condition that they found it neces- sary, it is not needful to aver they so found. Stuyve- sant vs. Mayor, etc., of N. Y., 7 Cow., 588. ■ ' City of Los Angeles vs. Waldron, 65 Gal., 283. State ex rel. Odle, 42 Mo., 210, (holding that if municipal charter is pleaded an allegation that an election by the board was duly made covers the ordinance regulating the election. [For the statutes and their application see §§ 277, etc., Jtjdgments, etc.; and as to Minnesota, Stat. 1891 ; Kelly, § 4790. OWNEESHIP. [See also Assignment, Descbmt, Heie, Seizin, Succession, and Title.] § 321. General allegation. § 335. Alternative source of title. 322. — after ownership shown in 336. Ownership imports capacity to third person. own. 333. Evidences of title. 337. Continuance presumed. 324. Defeasible ownership. § 321. General allegation. — A general allegation that the plaintiff was the owner of a thing,^ or that a thing belonged to the plaintiff, or even describing the thing as " of the plaintiff," ® is sufficient on demurrer. ' McAllister vs. Kuhn, 96 U. 8., 87 ; s. c, 24 Law ed., 615. (Allegation that plaintiff was the owner of specified shares represented by specified certificates.) Souter vs. Maguire {Gal, 1889), 21 Pac. Hep., 183 ; Mur- phy vs. Bennett, 68 Gal, 528 ; s. c, 9 Pacif. Pep., 738. (Allegation that plaintiff was the owner, sufficient.) Phoenix Ins. Co. vs. Stark {Ind., 1889), 22 North East. Pep., 413. (Allegation that plaintiff was "the owner," sufficient under a policy conditioned that he must be " sole and absolute owner.") Strickland vs. Fitzgerald, 7 Cmh. (Mass.), 532. 'IGhitt. PI, 16 Am. ed., 395. Scofield vs. Whitelegge, 49 JV. Y., 259 ; s. c, 12 Abb. Pr. N. S., 320, aff'g 10 Abb. Pr. N. S., 104 ; s. c, 33 Super. § 333.t] For Insufficiency ; Paetictjlar Allegatioks. 269 Gt> (J. <& S.), 179 ; (explaining Lewin vs. Eussell, 42 N. Y., 251 ; and holding that " tlie following goods and chattels of the plaintiff," is a sufficient allegation of his ownership.) Childs vs. Hart, 7 Barb. {JSf. T.\ 370. (Allegation that defendant " took one piano of him the said plaintiff," sufficiently alleges ownership.) § 322. — after ownership shown in third person. — If the pleading shows ownership in a thii'd person, — as in case of an instrument for payment of money expressly payable to a third person, — an allegation of ownership in the plaintiff is not enough, but facts showing transfer must be alleged.* And the objection is available under a de- murrer for not stating facts sufficient to constitute a cause of action.^ " Thomas vs. Desmond, 12 How. Pr. {N. Y.), 321 ; Adams vs. HoUey, id., 326; Hyatt vs. McMahon, 25 Barh. (JV. Y.), 457 ; s. p., Brown vs. Richardson, 20 K Y., 472 ; rev'g 1 Bosw. (iV^. Y.), 402. (Bills and notes.) McNeil vs. Supreme Commandery {Pa., 1890), 18 Afl.Bep., 899. (Benefit certificate payable in terms to wife : ad- ministrator of deceased sued, alleging that it belonged to the estate, and there were no other assets to pay debts. Bad on demurrer for want of showing transfer.) [In Amory vs. Lawrence, 3 Cliff., 523, an allegation that complainant " procured an assignment " of the thing from the assignee in bankruptcy of the original owner, was held sufficient, without stating that the assignee had leave of court to assign. See Leate.] '§73. Wilson vs. Galey, 103 Ind., 257; s. c, 2 North East. Bep., 736. § 823. Evidences of title. — Allegations setting forth evidences of title are not, alone sufficient in place of an allegation of ownership ; * but an allegation that the party holds title under a specified instrument, pleading it in full, is sufficient if the instrument shows title in him.^ But for this purpose title in the grantor must be al- 270 Abbott's Brief x)n the PLEADiifss. Dbmuekbb. [§ 324. leged ; * unless it must be presumed by law, as where tlie govermnent is the grantor. ■ Minturn vs. Alexandre {S. D. of N. Y.), 5 Fed Rep., 117. (Allegation that goods were consigned to libellants, and bills of lading issued to them, and of damage to them in the value of the goods by their loss, — not sufficient as an allegation of ownership.) {^Compare Morrison vs. Lewis 49 N. Y. Super. Ct. {J. & S.), 178. (Replevin for goods bought by fraud : allega- tion that plaintiff sold and delivered to defendant goods, etc., sufficiently shows that plaintiff had a spe- cial property in them, and which seems sufficient to show ownership.)] 'American Bell Tel. Co. vs. Southern Tel. Co. (Z7. S. Circ. a. E. D. Ark), 34 Fed. Rep., 803. ' May vs. First Natl. Bank, 19 Bradw. {Ill), 604 ; Gardner vs. Scoville, 1 Hoio. Pr. N. 8., 272. (Allegations of a transfer to plaintiff from a third person, without alleg- ing ownership in such third person.) § 324. Defeasible ownership. — The fact that the own- ership alleged appears to be defeasible, by conditions subsequent, does not alone impair the effect of an alle- gation of ownership. Malcolm vs. O'Eeilly, 46 N. Y. Super. Ot. {J. & S.), 222 ; s. p., Schoemock vs. Farley, 49 id., 302. § 325. Alternative source of title. — Under the New Procedure a positive allegation of ownership or title is not demurrable because it states, in the alternative, two grounds or sources of title. Marie vs. Garrison, 83 N. Y., 14 ; rev'g 45 Super. Ot. (J. & S.), 157. (Allegation that plaintiffs hold certain stock either in their own right or in trust, held, sufficient on demurrer.) [Compare Cresset vs. Milton, 1 Ves. Jr., 449. (Holding that an allegation of holding in right of a lease or otherwise, was demurrable.)] § 326. Ownership imports capacity to own. — An alle- § 329.] Foe Insufficiency; Particulak Allegations. 271 gation of ownership imports capacity to own, as against a demurBer. Bundy vs. Cocke, 128 U. S., 185 ; s. a, 32 L. ed., 396 ; 16 WasTi. L. Bep., 810 ; 9 Sup. Ct. Rep., 242 ; 5 B. B. d Corp. L. J., 346. (Action to enforce, against a married woman as a shareliolder in an insolvent national bank, an assessment on the stock. Hdd, that an allegation that she was the owner was an allegation that she was the lawful owner and had the capacity to own such shares.) s. P., Spies vs. Accessory Transit Co., 5 Dvje.r {N. Y.), 662. § 327. Contimmnce presvmed. — Ownership once shown is presumed to continue. Pryce vs. Jordan, 69 Ccd., 569 ; s. c, 11 Padf. Bep., 185. Van Rensselaer vs. Bonesteel, 24 Barb., 365 ; Taylor vs. Corbiere, 8 How. Pr. {N. Y.), 385. Compare §§ 53 and 216. But plaintiff's allegation that he was owner at the time of commencing his action is not put in issue by an answer alleging that defendant was owner (or received the articles by transfer from plaintiff) at a previous time. Brevoort vs. Brevoort, 40 N. Y. Super. Ct. {J. dt S.), 2ll. PAETNEESHIP. § 328. General allegation. — A general allegation that specified persons were partners, is an allegation of fact ; and sufficient on demurrer unless the contract is set forth and fails to bear out the allegation. Alpers vs. Schamel, 75 Gal., 590 ; s. c, 17 Pacif. Bep., 708. s. p., Sharp vs. Hutchinson, 100 N. Y., 533 ; Abendroth vs. Van Dolsen, 131 U. S., 66; s. c, 33 Law ed., 57 ; 9 Supm. Ct. Bep., 619. PAYMENT. § 329. Payment otherwise than vn, money. — ^An alle- gation that a pecuniary obligation was paid in another medium than money — as in goods or services — ^is insuffi- cient unless it alleges acceptance as payment. 272 Abbott's Brief on the Pleadings. Demukkeb. [§ 330. Corbett vs. Hughes, 75 Iowa, 281 ; s. c, 39 North West Hep., 500. (Answer struck out on motion.) s. P., Jennings vs. Osborne, 1 City Ot. (N. Y.), 195 (Mc- Adam, J.) [citing Morely vs. Culverbill, 7 Mees. & W., 17]. According to Ulsch vs. MuUer, 143 Mass., 379 ; s. c, 9 North Host. Hep., 736 ; 9 Uast. Rep., 11 Q, adding that it was so accepted is not enough to make out an alle- gation of payment. [Contra, Jennings vs. Osborne {N. T. City Ct.), N. T. Daily Register, Feb. 4, 1886.] PERMISSION. [See also § 159, Consent.] § 330. Implies hnowledge and consent. — ^An allegation that a thing was done " with the permission of " a party, is a sufficient allegation that it was done with his knowl- edge and consent. Gray vs. Stienes, 69 loiua, 124 ; s. c, 28 North West. Rep., 475. (/So held on motion for injunction in action to enjoin use of premises for liquor traffic.) Loosey vs. Orser, 4 Bosw. (N. Z), 391, 404. (Escape : allegation that sheriff permitted escape, must be under- stood to be an escape by consent.) {Contra, Toll vs. Alvord, 64 Barh. (N. Y.\ 568.] RATIFICATION. § 331. An issuahle fact. — ^Ratification with knowl- edge is an issuable fact ; and a general allegation thereof is sufficient on demurrer, without stating the particulars. Yoiles vs. Beard, 58 Ind., 510. (Allegation that infant, with full knowledge of the facts, ratified and con- firmed said agreement, sufficient; judgment therefore reversed.) REASONABLE TIME. [See also Contracts.] § 333. Allegation necessary. § 334. Meaning of. 338. An issuable fact. § 332. Allegation necessary. — On a contract not so pleaded as to show that defendant agreed to perform § 335. J For Insufficiency ; Particular Allegations. 373 within a fixed time, the lapse of a reasonable time/ or the making of a request,^ must be alleged. ' Pope vs. Terre Haute Car & Manuf. Co., 107 N. Y., 61 ; s. c, 13 North East. Bep., 592. ' Eead vs. Smith, 1 AUen {Mass.), 519. § 333. An issuable fact. — At common law, an allega- tion that a thing was or was not done within a reason- able time, without stating particulars, is not deemed a conclusion of law, but an allegation of fact ; and is suf- ficient on demurrer,^ unless the duty or obligation in question is so dependent upon the law that the question of reasonableness would be for the Court.* It is the better opinion that under the New Proce- dure, if time is material, the time should be specified.^ ' 1 CMtt. PI., 16 Am. ed., 248. (Eeasonable time to allow wheat to lie on the ground after cutting.) Id., 563. (Reasonable number of herds for pasturage.) 'Parmalee vs. Town of Bethlehem, 57 Conn., 270, 274 (Allegation that the justice's judgment was not ren- dered until " long after " the expiration of the return hour, insufficient to show unreasonable delay, because, the period should be stated, that the Court might see it was unreasonable.) [Compare Appearance; Contracts; and Duly.] ' See § 188, Contracts; § 318, Offer. § 334. Meaning of. — An allegation that an act was done within a reasonable time is not equivalent to alleg- ing that it was done promptly ^ or directly.^ ' Tobias vs. Lissberger, 105 N. Y., 404, 410. (Holding that a contract to ship " promptly " admits of less delay than one to ship within a reasonable time.) " Duncan vs. Topham, 8 Gom. B., 225. EEGULAEITT. [See also § 140, Appearanck ; § 255, Duly ; and 277, etc., Judgments, etc.] § 335. Details need not he alleged. — In pleading a step 274 Abbott's Brief on the Pleadings. Demureek. [§ 336. taken in legal proceedings in a court of general jurisdic- tion, it is enough to allege generally that it was duly taken, or taken according to law, or in equivalent phrase ; without setting forth the particulars which show regu- larity; for the practice of the court and conformity thereto is matter of evidence. Thomas vs. Cameron, 17 Wend. {N. Y.), 59. (Allegation as to appearance pursuant to bond.) Cited under § 140, Ajpeaeance. Ayres vs. Western E. E. Corp., 45 N. Y., 260. (Holding that an allegation in a citizenship cause that the peti- tion and bond, for removal, " were filed with the clerk of the city and county of New York according to the statute of the United States and the practice in such case made and provided," sufficiently imports that the petition and bond, etc., were, presented at the time of entering the appearance.) EEPUGNANT ALLEGATIONS. [See also Alternative Allegation.] § 336. Incov-sistency as ground of demwrer. — Incon- sistency between two or more material allegations con- tained in a single cause of action or defence, is fatal on demurrer, if both cannot possibly be true as matter of fact, and either is essential to make out a sufficient case.' If either allegation is immaterial it may be disregarded as surplusage.* It is the better opinion that inconsistency between separate causes of action or defences is not ground of demurrer to either, but the remedy is by compelling election, or by striking out, or by objection at the trial.^ ' 1 CUtt. PI, 16 Am. ed., 254. For instances see Fleischmann vs. Bennett, 87 N. Y., 231, 287 ; Howell vs. Merril, 30 Mich., 283. Compare Herser vs. Miller, 77 Gal., 192 ; s. c, 19 P Abbott's Bkief on the Pleadings. Demurrer. [§ 399. " For the mode of pleading in such case see Gorham vs. Gorham, 3 Barb. Ch. {N. Y.), 24, and the statutes of the jurisdiction affecting the power of the guardian or committee, and ward. § 399. Allegation of capadPy not conclusive. — The woi'd " as" inserted between the name of the plaintiff and the description of his representative capacity in the intro- ductory clause of the complaint is a sufficient allegation that he sues in that capacity, if allegations show that he has that capacity, and that the cause of action is vested in him in that capacity. Plaut vs. Pkut, 44 N. J. Eq., 18 ; 13 Atl. Bep., 849 ; 12 Cent. 239. (Unnecessary that an executor party plain- tiff should be styled "executor" in the commencement or conclusion of a bill, there being allegations showing his capacity.) Bennett vs. Whitney, 94 N. Y., 302. Berolzheimer vs. Strauss, 51 N. Y. Super. Ct. {J. & S.), 96. (Surviving partner.) Buyce vx. Buyce, 48 Hun, 433. (Public officer.) Nicholas, assignee, vs. Murray, 5 Sawy., 320. (Bill by assignee in bankruptcy. The objection that a plaintiff suing in a representative capacity, and describing him- self as such, does not allege his appointment, cannot avail on demurrer : the objection must be taken by plea.) By statute in Iowa, where one or more sue or are sued in a corporate, or partnership, or representative capacity, the facts constituting it need not be set forth, but it is enough to allege generally the capacity or relation as a legal conclusion. McClairHs Anno. Code, § 2716. § 400. Allegation of individual cause of actdon by plainPiff described as representative. — A complaint, stat- ing a cause of action on which plaintiff appears to be entitled to recover in his individual capacity, is not de- murrable because the action is entitled as brought by him as executor, or as administrator,^ or otherwise as a representative ; even if, by reason of the appointment being foreign, the action could not be sustained in the § 402.] Want of Legal Capacity to Sue. 323 representative capacity.- The (lescriptiou may be re- jected aa surplusage. ' Litchfield «s. Flint, 104 N. Y., 543,550; s. c, 7 Cent. Rep., 41 ; 11 North East., 58. Bennett vn. Whitney, 94 N. 1'., 302. Merritt vk. Seaman, 6 N. Y., 168, rev'g 6 Barh., 330. [See also Bingham vs. Marine Natl. Bank, 17 Ahh. N. 6'., 431, and note (abstract s. c, in 41 Hun, 377); Thomp- son vs. Whitmarsh, 100 N. Y., 35, 39, explaining N. Y. Code Civ. Pro., . Pro., §87; Ohio— Rev. Stats., % 501^; South Carolina^ R. S. t. V, c. 22, § 190 ; Wisconsin— Bev. Stats. (1889), § 2647. In the following States injuries to person and injuries to property are stated as separate classes, not joinable as such : California — Code Civ. Pro., § 427 (but an action for malicious arrest or prosecution, or either of them, may be joined %vith an action for either an injury to charac- or to the person) ; Idaho — Civ. Pro. Bev. Stat. (1887), § 4169 ; s. p., Indiana^Civ. Pro., 1881, B. S. 1888, c. 2, § 278 (106) ; Montana^Code Civ. Pro., § 86 ; Nevada —Gen. Stat., | 3086; New York— Code Civ. Pro., § 484; Oregon— 1 Hill's Stat., § 93; Utah—Comp. Laws, % 3220. In California — Code Civ. Pro., §427; Idaho — Code Civ. Pro.',B. 8., 1887, § 4169 ; Montana^Code Civ. Pro., § 86 ; Nevada,— Gen. Stat., § 3086 ; Oregon— 1 Hill's Stat., § 93 ; Utah — Comp. L., § 3220, claims for injuries to character and claims for injuries to the person or to property are three separate classes, not joinable as such. I 4:21.] Misjoinder of Causes; Nature of Claims. 343 In Indianor—Civ. Pro. (1881), Hev. Stat. (1888), c. 2, § 278 (106), injuries to property are one class, and those to person and character a separate class. In Kansas—Civ. Pro. § 83, Gen. Stat. (1889), 1 4166; Kentmky {Code Civ. Pro., § 83), Minnesota {Gen. Stat. 1878, c. 66, § 118 [§ 98]), Missouri {B. S. of 1889, § 2040), Nebraska {Code Civ. Pro., § 87), Ohio {H. S., § 5019), South Carolina {R. S., t. y, c. 22, § 190), and Wisconsin {E. S., § 2647), injuries to character form one class and those to person and property a separate class. In Colorado, all actions sounding in damages may be joined. In Fhrida, causes of whatever kind. In Georgia, all actions ex delicto. In Massachusetts, all tort (not including reple\dn). § 421. Common-law liability, and penalty, or stai/utory liahility. — It is tlie better opinion that where the statute allows causes of action arising out of the same transaction to be joined, a cause of action on a common-law liability, whether by contract or for negligence or tort, may be joined with a cause of action on a statutory liability aris- ing on the very same facts.^ Otherwise of a statutory liability first arising upon delinquencies subsequent to the transaction raising the common-law liability, although relating to the same ob- ject of action.* ' Stockwell vs. United States, 3 Cliff. {U. S.), 284. (Debt for duties, and double value for penalties, joinable.) And see also Patterson's SaUw. Ac. L., 395. {Contra, Louisville, B. & St. L. E. Co. vs. Hill, 29 lU. App., 582 ; Kendrick vs. Chicago & A. K Co., 81 Mo., 521. (Common-law action for negligence, and statutory action for the same injury upon neglect to give signal, not joinable.) [Contra also Scott vs. Eobards, 67 Mo., 289. (Because the recovery would be different — in the one case actual damages, in the other the penalty.] [The better view is that this is ground for compelling elec- tion at the trial rather than for demurrer.] Fairfield vs. Burt, 11 Pick {Mass.), 244. (Count in tres- pass on common-law liability, and count on statute allowing tresspas for double damages, on same matter.) Worster-ys. Proprietors of Canal Bridge, 33 Mass.{16 Pick.), 344 AiiiiOTT's Brief on the Pleadings. Demurrer. [§ 431. ^^l-_ (Count at common law for actual damages niay be joined with one on a statute, although the statute gave double damages ; for the form of action, the plea and judgment are the same.) [The statute as to double damages is only a direction tb the Court to proceed after single damages have been assessed. Clark vs. Worthington, 29 Mass. (12 Pick.), 571.] Compare Cincinnati, etc., E. E. Co. vs. Cook, 37 Ohio St., 265. (The petition set forth two causes of action, each charging the defendant, a railroad, with overcharging for fare, and sought to recover the penalty therefor. Held, on demurrer, that the causes could be joined, as they both constituted injuries to property.) [ Contra, Keyes vs. Prescott, 32 Vi, 86. (A count for treble damages allowed by statute for the cutting down and carrying away a tree cannot be united with a count for trover for the taking of the tree.)] [Contra also Mosely vs. Moss, 6 Gratt. (Va.), 534. (Statu- tory action for insulting words, and common-law action for defamation, not joinable.)] [Compare Sipperly vs. Troy & Boston E. E. Co., 9 Sow. Pr. (N. Y.), 83. (Complaint set aside for irregularity, because counting under railroad act for obstructing highways, and also under another statute for treble damages for the same obstruction.)] The case of McCoun vs. New York Cent. & H. E. E. Co., 50 JV. Y., 176, is examined in Western Union Telegraph Co. vs. Taylor {Ga., 1890), 8 L. E. A., 189, and the rule therein laid down, — that a statute liability wants all the elements of a contract, and that an action for a penalty is not an action " upon contract " within the meaning of the former N. Y. Code {Code Pro., § 129) prescribing the form of summons, — was applied in construing con- stitutional provision in Georgia that the jurisdiction of justices' courts be limited to civil cases arising ex con- tractu, — the Court holding that actions to recover a penalty imposed by statute could not by legislative enactment be placed within such jurisdiction. In the view of the Georgia court Blackstone's extension of the term " contract " to obligations created or implied by law is too loose. The weight of authority is that a judgment shown to have been recovered for tort is not to be deemed a contract. Whether other judgments can be considered as con- tracts, or if so, for what purposes, is not settled. Taylor vs. Eoot, 4 Abb. Ct. App. Bee. 382; s. c, less fully, 4 Keyes, 335. I. 'lack on Jvdgt., 11. §422.] Misjoinder of Causes; Nature of Claims. 345 As to whether statutory duty is a contract, see note in 20 Abh. N. C, 221. In Massachusetts there are three classes of personal actions : (1) contract including former assumpsit, cove- nant, and debt, except for penalties ; (2) tort, including former trespass on the case, trover, and all penalties ; (3) replevin. "Any number of counts for different causes of action belonging to the same division of actions may be inserted in the same declaration," and contract and tort on same transaction in case of doubt. * Wiles vs. Suydam, 64 N. Y., 173. (Cause of action in respect of a corporajte debt, against defendant as stock- holder, capital not being paid in, and also as trustee for penalty for neglect to file annual report, held not joinable : they did not arise out of the same transac- tion ; moreover the measure of liability, the proper defences, and the defendant's remedies over against third persons, are different.) Compare Bonnel -ys. Wheeler, 1 Hun, 332 ; 16 Abh. Pr. N. S., 81 ; Sterne vs. Herman, 11 Abb. Pr. N. S., 376 ; Rich- ards vs. Kinsley, 12 N. Y. State Rep., 125. § 422. Legal and equitable. — Under the New Proced- ure it is no objection to the uniting of two causes of action otherwise Joinable that one is of a legal nature and the other of an equitable nature,^ notwithstanding that they may require di:fferent modes of triaP or differ- ent kinds of relief.'' ' First Div. St. P. & Pac. E. Co. vs. Eice, 25 Mmn., 278. (Several causes of action whether legal or equitable may be united in the same complaint, whenever they are all included in the same transaction or transactions con- nected with the subject of the action, provided they affect all the parties to the action and do not require different places of trial. There was therefore no mis- joinder in this case. [Citing Montgomery vs. McEwen, 7 Minn., 276 (351).]) Montgomery vs. McEwen, 7 Minn., 351. (Plaintiff may unite with an action on note for the purchase money of real estate an action for the release and discharge of a mortgage on other property given by plaintiff to defend- ant in the same transaction to secure defendant against an incumbrance upon land sold. It is no objection in such case that one of the actions is legal and the other equitable.) 346 Abbott's B'EiBF ON THE Pleadings. Dbmukrbr. [§423. Farmers & Merchants' Nat. Bk. of Buff. vs. Eogers, 17 JV. Y. State Hep., 381 ; s. c, 15 Civ. Fro. B., 250. (Cause of action on a promissory note, and one to foreclose plaintiff's lien upon pledge therefor. [Citing Lattin vs. McCarty, 41 N. Y., 107 ; Sternberger vs. McGovern, 56 id., 12.]) People vs. Metropolitan Telephone Co., 31 Hun, 596, 598. (Code Civ. Pro., § 484, enabling a plaintiff to include in his complaint both a legal and an equitable cause of action, hM, applicable to an action to restrain the com- pletion of a telephone line, to remove its incomplete line as a nuisance, and to restore the street where it was located to its original condition.) Compare Crites vs. Supervisors, 67 Wis., 236. (A cause of action to have tax certificates on the sale of land for taxes set aside cannot be joined with one against the holders of such certificates to recover back money un- necessarily paid into court as a condition of relief, in an action brought by the holders of such certificates to bar the original owners (plaintiffs in this suit). One being in equity to cancel certificate, the other at law to recover back the money. [Citing Leidersdorf vs. Second Ward Savings Bank, 50 id., 406.J) Under the Iowa Code, § 2680, permitting the joinder of causes only where each may be prosecuted in the same kind of proceedings, legal and equitable causes cannot be joined. Stevens vs. Chance, 47 Iowa, 602. In Arlmnsas (§ 5026) the caption of the complaint must state whether the proceedings are at law or in equity. In the following States the statutes expressly provide that causes of action whether legal or equitable may be joined if otherwise joinable : Connecticut — Practice Act, Gen. Stat, 1888, § 878 ; Morida^McClellan's Dig. of Laws Fla. (1881), c. 162, § 71 (" causes of action of whatever kind," but this does not include replevin or ejectment) ; Kansas — Civ. Fro., § 83, Gen. Stats. (1889), IT 4166; Minnesota— Gen. Stats. 1878, c. 66, § 118 (Sec. 98) ; Missouri^Bev. Stat. 0^1889, § 2040; Nebraska— Code Civ. Fro., § 87; New York— Code Civ. Fro., § 484; OUo-Rev. Stats., % 5019 ; South Carolina — Bev. Stat., tit. v, c. 229, § 190 ; Wisconsin —Bev. Stat. (1889), § 2647. In Indiana— CivU Fro. (1881), Bev. Stat. (1888), c. 2, §§ 278, 279, 280 — and a number of other States the statutes by necessary implication establish the same rule. ' Parmerter vs. Baker, 24 Abb. N C, 104 ; s. c, 27 State . Bep., 635 ;8N.Y. Swpp., 69. (Holding that under N.T. Code Civ. Pro., as amended § 484, it is no objection to §424.] MisJOiNDEJi OF Causes; Isatuhe of Claims. 347 , joinder that the causes of action require different modes of trial if they do not require different places of trial.) If they require different modes of trial, the Court can direct the order in which the several issues shall be tried. Sturm vs. Atlantic Mut. Ins. Co., 38 JV. Y. Super, a. {J. d S.), 281. ' Lattin vs. McCarty, 41 N. Y., 107. § 423. Action to recover debt and enforce lien. — A ciiuse of action to recover a debt, and a cause of action to c'lifoi'ce a lien for its payment, may now be joined. Parmerter vs. Baker, ^4: Abb. JSf. C, above cited. (Holding that the rule in Burroughs vs.Tostevan, 75 N. Y., 567, 572, that an action to enforce a lien cannot be united with an action to recover a debt, except in case of a mortgage, is superseded by the N. Y. Code of Civil Procedure as amended in 1887.) Jordan vs. Smith, 83 Ala., 299 ; s. c, 3 South. Bep., 703. (Action for judgment against husband and wife for price of supplies, and to enforce lien therefor on wife's separate estate.) Witte vs. "Wolfe, 16 S. C, 256. (A cause of action for an unsecured demand arising on contract may be united with a cause of action for foreclosure of a mortgage. So held on exception to judge's findings in consider- ing the action on contract.) Stephen vs. Magor, 25 Wise, 533. (Personal judgment for price, and foreclosure of vendor's lien therefor.) Sauer vs. Steinbauer, 14 id., 71. (Foreclosure of mort- gage, and personal judgment for deficiency.) In Indiana and Ohio the statute allows the foreclosure of a lien and the recovery of the debt in the same action. § 424. Incidental relief. — A claim for specific relief in- cidental or preliminary to the relief or demand which is the main object of the suit may be joined when arising out of the same transaction. Pfister vs. Dascey, 65 Gal., 403. (Claims to annul and set aside as fraudulent certain conveyances, under the Code, to determine adverse claims to the real property involved, and ejectment for possession and rents and 348 Abbott's Beief ON THE Pleadings. Dbmurker. [§425. profits, can be prosecuted in same action under our system. All of the matters complained of related to the same property, were parts of one transaction and one design to defraud, and affected all the parties who defended the action.) Stock Growers' Bank vs. Newton, 13 Colo., 245. (A judg- ment creditor was entitled to bring action for cancel- lation of fraudulent deed from judgment debtor and, as a matter of equitable relief, ask for a " recovery of possession of" property. They are not improperly united under Code, as they affect all parties in the same character and capacity, and are directly con- nected with subject-matter of litigation. [Citing Fom. Bern., §§ 78, 79 ; Lattin vs. McCarty, 41 JST. Y., 107 ; Henderson vs. Dickey, 50 Mo., 167 ; 1 Story Eq. Jur., § 700 ; 3 Pom. Eq. Jur., § 1377 ; Swift vs. Arents, 4 Cal, 390 ; Harrison vs. Kramer, 3 Iowa, 543 ; Hager vs. Schindler, 29 Cal, 47 ; Gormly vs. Potter, 29 Ohio St., 597 ; Frakes vs. Brown, 2 Black/.. 295 ; Gallman vs. Perrie, 47 Miss., 140; Allen vs. Writch, 5 Cb?o., 226; Birdsall vs. Waggoner, 4 Colo., 256 ; Orendorf vs. Bud- ling, 12 Fed. Bep., 24.]) Scarborough vs. Smith, 18 Kan., 399. (Causes of action for the recovery of real property ; for rents and profits, and for partition may be united, as they all arise out of the " same transaction " or are connected with the " subject of the action," i.e. plaintiff's right to possess and enjoy the property.) Akin vs. Davis, 11 Kan., 580. (Action for injuries from overflow of 6, dam may be united with one for an in- junction to restrain its maintenance.) Blair vs. Chicago & Alton K. E. Co., 89 Mo., 383. (A count in equity to set aside a release of damages for personal injuries may be united with one at law for the recovery of the damage.) [Citing Henderson vs. Dickey, 50 Mo., 161.] Stewart vs. Carter, 4 Neh., 564. (Under the Code a pe- tition to obtain the correction of an official bond and to recover a money judgment for the breach thereof may be joined. Both causes arise out of the same trans- action or transactions connected with the subject of the action. [Citing Globe Ins. Co. vs. Boyle, 21 Ohio St., 119 ; Welles vs. Yates, 44 N. Y., 525.]) § 425. Same t/ransaction or subject. — It is the better opinion that under the usual provision in the codes, un- §425.] Misjoinder of Causes; Nature of Claims. 349 less the statvite clearly precludes it, claims of wLatever nature which arise out of the same transaction, or trans- actions connected with the same subject of action, inuy be pined if they all affect the same parties and do not re- quire different places of trial. PoUey vs. Wilkisson, 5 Civ. Fro. B. {N. Y.), 135 ; s. p., Heigle vs. Willis, 50 Hun, 588. [ Contra, Teall vs. City of Syracuse, 32 Sun, 332 ; SuUi- Tan vs. N. Y..& K H., etc., R. E. Co., 61 How. Pr., 490; Eaynor vs. Brennan, 40 Hun (N. Y.), 60.] The New Tork statute enumerates in successiTe subdi- visions the various kinds of causes of action that may be joined with each other, stating as the last subdivi- sion claims nut included within one of the foregoing subdivisions, provided they arise out of the same trans- action or transactions connected with the same subject of action ; and concludes with a proviso that all the claims joined must belong to one of the foregoing sub- divisions. This means (1) that claims not arising out of the same trans- action or subject may be joined if they belong to the same class ; (2) that claims which do arise out of the same transaction or subject, etc., may be joined notwith- standing they do not both belong to any one class of the previously enumerated causes. The provisions respect- ively allowing joinder of causes of action "arising out of the same transaction, or transactions connected with the same subject of action," and allowing counterclaim of a cause of action " arising out of the contract or trans- action set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action," — mark the adoption of the general princi- ple familiar in equity procedure, and were intended to extend that principle by allowing joinder of several equitable causes of action in one complaint in an equitable action ; joinder in actions of a legal nature of causes of action which were sufficiently cognate to each other by reason of arising out of the same transaction or being connected with the same subject to have come within the rule as to equitable suits ; and joinder of equitable with legal causes of action similarly related to each other ; and to allow also the same test to apply to counterclaim in actions whether legal or equitable. If this view of the similar intention of the two provi- sions is sound, the ruling in Cass vs. Higgenbottham, 100 350 Abbott's Brief on the Pleadings. DEMUURJiii. [§ 426. '■"■ Y-, 248, certainly turns the scale in favor of the rule stated in the text.) § 426. Flace and mode of trial. — It is a misjoinder to unite causes that require different places of trial ; but not to unite (where law and equity are merged) those that require different modes of trial.^ ' Connecticut — Practice Act, Gen. Stat. 1888, § 878 ; Indiana —Civil Fro. (1881), Bev. Stat. (1888), c. 2, § 278 (106) ; Minnesota— Gen. Stats. 1878, c. 66, § 118 (Sec. 98); Missouri— Bev. Stat. o/1889, § 2040; New York— Code Civ. Pro., § 484 ; Ohio— Bev. Stats., § 5019 ; Oregon— Stat. (1887), 1 HilVs Stat., § 93 ; South Carolina— Bev. Stat., tit. V, c. 229, § 190. ' See note to § 423. § 427. Inconsistency. — It is the better opinion that the rule that inconsistent causes of action cannot be Joined^ refers to inconsistency in point of fact between essential al- legations, and not to incongruity in legal theory, nor to the mere sufficiency of one, if established, to render the other superfluous.* ' N. Y. Code Civ. Pro., § 484. ' See Krower vs. Eeynolds, 99 N. Y., 245, and cases col- lected in note in 24 Abb. N. C, 326, on pleading several grounds of recovery. § 428. OhjectiontojwisdiGtiononly. — Under a demurrer for misjoinder of causes of action, the objection that a cause of action of which the Court has no jurisdiction has been joined, is not available, if the causes would otherwise be joinable. Cook vs. Chase, 3 Duer {N. Y.), 643. (Cause of action affecting lands -without the territorial limits of juris- diction, joined with one within the jurisdiction.) Dodge vs. Colby, 108 N. Y., 445 ; s. c, 15 N. East., 703 ; 11 Cenf., 466. §430.] Misjoinder of Causes; Different Pakties. 351 § 429. Avoiding hy reason of insuffiGiency of one cause. — A demurrer for misjoinder may be overruled if one cause of action is insufficient, and rejecting it ex- cludes the misjoinder.* But it is not error to sustain the demurrer in such a case.^ Nor is it proper to overrule the demurrer if there re- mains a misjoinder of plaintiffs.^ ' Sullivan vs. New York, N. H. & H. R. Co. {U. 8. Circ. Ct. N. T.); 11 Fed. Bep., 848; s. c, 19 Blatchf., 388; 61 How. Fr., 490. (Action under the Code.) Newman vs. Smith, 77 Cal., 22 ; 8. c, 18 Fac., 791. (Ac- tion under the Code.) McCabe vs. Bellows, 1 Alien {Mass.), 269. (Bill in equity.) Berford vs. Barnes, 45 Hun {N. Y.), 253. (Action under the Code.) Jenkins vs. Thomason, 32 S. C, 254 : New Home Sewing Machine Co. vs. Wray, 28 S. C, 86. (Action under the Code.) Hiles vs. Johnson, 67 Wise, 517 ; s. c, 30 North West. Bep., 721. (Action under the Code.) ' Higgins vs. Crichton, 11 Daly {N. T.), 114 ; s. c, 2 Civ. Fro. B., 317 ; s. c, 2 id. (McCarty), 78 ; and 63 How. Fr., 354 ; affd in 98 iV. Y., 626. 8. P. Flynn vs. Bailey, 50 Barb., 73. ' Walker vs. Powers, 104 U. S., 245, 249. D. Objections to Misjoinder of Causes of Action turning on the Involving of Claims affecting Different Farties; {including Mvltifarioicsness). § 430. Several parties, — at common law. — At Com- mon haw there is a misjoinder of causes of action if sev- eral are united where there are several : parties, plaintiff or defendant, unless each cause of action is Joint or Joint and several, as to all the plaintiffs or defendants. Brown vs. Lee {U. S. Dist. Ct. Miss.), 19 Fed. Rep., 630. . (Action against firm with count against one partner : latter count held bad on his demurrer. [Citing. Chitt. 362 Abbott's Bjuejf on the Pleadings. Demurrer. [§ 431. PI. and Miller vs. Northern Bk. of Miss., 5 Geo. (Miss.), 412.]) ^ ' McMullen m. Churcli, 82 Va., 501 ; s. c, 11 Va. L. J., 421. (Action for malicious prosecution of attachments, some counts charging both defendants, others respectively charging each separately, etc. Held, bad. Eichmond, J., said: "If several persons be made defendants jointly, where the tort could not, in point of law, be joint, they may demur; and if a verdict be taken against all, the judgment may be arrested or reversed on a writ of error ; but the objection may be aided by the plaintiffs taking a verdict against one only, or, if sev- eral damages be assessed against each, by entering a nolle proseqm as to one after the verdict and before the judgment. So in other cases, where, in point of fact and of law, several persons might have been jointly guilty of the same offeiwe, the joinder of more persons than were liable in a personal or mixed action in form ex delicto constitutes no objection to a partial recovery, and one of them may be acquitted and a verdict taken against the others. On the other hand, if several per- sons jointly commit a tort, the plaintiff in general has his election to sue all or some of the parties jointly, or one separately." But "in actions hy and against several persons, whether ex cordractu or ex ddicto, all the causes of action must be stated to be joint. Thus a plaintiff cannot, in a declaration against two defend- ants, state that one of them assaulted him, and in an- other part that the other assaulted him, or took his goods, for the trespasses are of several natures and against several persons, and they cannot plead to this declaration. 1 Chitt. PI, 225." § 431. — under New Procedvffe. — Under the New Procedure there is a misjoinder of causes of action if several are united, unless all the parties, plaintiffs* and defendants,* are affected by each cause of action. This rale applies whether the causes of action are of a legal ^ or an equitable * nature, or of both.^ There is an exception in the case of foreclosure. ' Bort vs. Taw, 46 Iowa, 323. (Two plaintiffs, each having a> Separate cause o{ aetion against a defendant, eannot aaite them merely because they arise out of the same • a.) §431.] Misjoinder or Causes; Dibeeeent Paetibs. 353 Taylor vs. Manhattan Ey. Co., 53 Hun, 305; s. c, 6 K T. Supp., 488. (Wrong to firm, and wrong to single part- ner, cannot be joined.) State ex rd. vs. Board of Comm'rs, 38 Kans., 317. (Man- damus to reTiew vote of different townships on bonding in aid of railroad. Hdd, that the case of each township must be presented as a separate cause of action.) Hosier vs. Beale {U. S. O. Gt. Gal, S. D., 1890), 43 Fed. Sep., 358. (A complaint by husband and wife alleging injury to the wife and damage to both plaintiffs by reason thereof, misjoins causes of action, as the hus- band, though properly joined, cannot himself recover for injuries to the wife. [Citing Matthew vs. Eailroad Co., 63 Gal., 451.]) 'Johnson vs. Kir by, 65 Gal., 482. (Action to obtain re- transfer of stock, part from each of two different de- fendants, who respectively obtained it by different frauds.) Buell vs. Dodge, 79 Gal., 208. (Cause of action against two persons separately uniting in an agreement to clear the title to land, the stipulations of each being distinct, not joinable.) Doan vs. Holly, 25 Mo., 357. (Improper to join a cause of action against two defendants with one against one of the defendants alone.) Holeran vs. School Dist. No. 7, 10 Web., 406. (Action on two official bonds given by the same officer with dif- ferent sureties.) Trowbridge vs. Forepaugh, 14 Minn., 133. (Cause of action against a city for injury caused by defect in street, and against the person who caused the defect in the street, not joinable.) s. p., Kelly vs. Newman, 62 Hoio. Pr. {N. Y), 156. [In Bateman vs. Forty-second St., M. & St. N. Ave. Ey. Co., 5 lif. Y. Supp., 13, it was however held that an action against a municipality for injury resulting from its neglect to keep street in repair, and against a railway company who had agreed with the municipality to do so and neglected it, was maintainable and not demurra- ble as joining different causes of action.] Pracht vs. Eitter, 48 N. Y. Super. Ct., 509. (Actir.n against two defendants for a deceit by both, and ioi a deceit by one of them.) Hines vs. Jarrett, 26 S. G., 480. (Action against one for erecting dam, and another, his grantee, for its continu- ance.) Lull vs. Improvement Co., 19 Wise, 100. (Action for damages against A and B for respectively erecting 354 Abboit's Beibp os xhb Plbadin as. Djsmurreb. [§ 43L eeparately, dams on different branches of the same stream, and thereby flowing plaintiff's lands, demur- rable.) Greene vs. Nunnemacher, 36 Wise, 50, (Successive ten- ants respectively maintaining the same nuisance.) Hoffman vs. Wheelock, 62 Wise, 434. (A cause of action against an administrator and others growing out of the fraudulent sale of land by the administrator, not joinable with a cause of action against the adminis- trator alone for waste committed prior to the sale.) Gillingham vs. Delaware Div. Canal Co., 19 W. N. C, 319. (Action for damages by the falling of a structure owned by one defendant and separately leased by the other. [Citing Wright vs. Geer, 6 Vt., 151.]) Van Liew vs. Johnson, 6 N. Y. Supm. Ct. {T. & C), 648,- mem., s. c, 4 Hun, 415. (Plaintiff alleged that de- fendant J. by fraud induced plaintiffs to assign to his son a claim they held against an insolvent estate of which J. and M. were the assignees for benefit of creditors ; and that J. himself received the dividends thereon ; and demanded as a relief that the assignment be cancelled, and that the assignees account. Hdd, a misjoinder of causes of action, because they affected different parties and arose out of different transactions.) Suber vs. Allen, 13 S. C, 317. (Creditor's action for an accounting of decedent's estate, and also impeaching a claim of title of a third person against certain lands.) Turner vs. Duchman, 23 Wise, 500. (Action to quiet title by the holder of three tax deeds against several de- fendants who held in severalty where the former owners were different.) De Caumont vs. Morgan, 21 N. Y. Weekly Dig., 357 ; s. c, in full, Daily Reg., June 30, 1885. (An action cannot be brought against two defendants charged with having obtained separate and distinct property from a testator by undue influence.) Compare Eeed vs. Howe, 28 Iowa, 250. (Action by heirs against administrators for an accounting, to set aside a fraudulent settlement, and to" reach funds invested in real estate, may properly be joined with a cause of action to set aside an order of the county court for the sale of the real estate, and a fraudulent sale thereunder, both causes being equitable and the parties the same.) Also Bank vs. Levinus, 50 N. Y. Super. Ct, 159 ; s! c, 5 Civ. Pro. B., 868. (Ejectment against several defend- ants, alleging that all were in possession ; also that one was in possession of a part under the others. H(M, § 431.] Misjoinder of Causes ; Diffekekt Parties. 355 not a case for the application of rules that are to be applied to several pieces of land held separately.) ' Gray vs. Eothschild, 112 N. Y., 668, aff'g 48 Hun, 596 ; 14 Civ. Pro. B., 320. (Separate vendors injured by one scheme of fraud cannot join in suing for damages merely.) Thorpe vs. Dickey, 51 Iowa, 676. (An action on a note against a maker and an indorser cannot be joined with an action on an account against the indorser only.) Cogswell vs. Murphy, 46 Iowa, 4A. (Several owners of cattle not liable in a single action for trespass.) [But in Iowa the remedy for misjoinder of action seems to be motion to compel election, not demurrer. See statutes.] Hoye vs. Raymond, 25 Kan., 665. (Cause of action against constable and deputy for wrongful levy not joinable with action against constable's sureties on the bond for the same wrong, because both do not a£feot the same parties. [Citing Waterbury vs. Westervelt, 9 N. T., 598 ; King vs. Orser, 4 Duer, 431 ; Mclntyre vs. Trum- bull, 7 Johns.,^ 35 ; Civ. Code, § 83.]) Durein vs. Pontious, 34 Kans., 353. (Joint action by chil- dren under civil damage act.) * Harsh vs. Morgan, 1 Kan., 293. (Suits of separate lienors under mechanics' lien law, and vendor's suit to enforce his lien, cannot be consolidated.) Liney vs. Martin, 29 Mo., 29. (Widow, to set aside con- veyance in fraud of dower, and heir, to establish trust founded on the conveyance, cannot join.) Barnes vs. City of Beloit, 19 Wise, 93. (Two or more owners in a city cannot unite in an action to restrain the sale of lots owned by them severally for taxes ille- gally assessed, or to prevent the execution of deeds for such lots upon such sale, but each must bring his sev- eral suit.) [Compare with, Peck vs. School District, 21 Wise, 516. (Holding that where the relief demanded consisted in part in having a contract entered into by the School District declared void, as to that the plaintiffs were properly joined.)] ' Church vs. Stanton, 9 N. Y. State Eep., 121. (Complaint against all of the defendants for amount of receiver's certificates, and seeking to charge one of them with certain property in trust for the payment of the cer- tificates.) Howse vs. Moody, 14 Fla., 59. (Creditors' action against an administrator to reach property of their debtor which had been fraudulently transferred to intestate, improp- 356 Abbott's Bkief on the Pleadings. Dbmubkbr. [§ 433. erly united with an action against sureties on the ad- ministrator's bond.) Stanton vs. Missouri Pacific Ey. Co., 15 Civ. Pro. B., 296 ; 2 N. T. Supp., 298. (A cause of action for equi- table relief against a corporation cannot be united with a claim for damages against individual defendant.) House vs. Cooper, 16 How. Pr. (JV. Y.), 292. (In an action for equitable relief against a corporation, a claim for damages against individual defendants cannot be ioined.) [Compare 36 JV. T., 569.] Sortore vs. Scott, 6 Lam. {N. Y.), 271. (A claim in the nature of a legal demand against a surviving trustee, for interest due under the will, cannot be joined in an action against him and the representative of the deceased trustee to have an accounting ; but the accounting and repayment of money lost by the misconduct of the trustees may be joined.) § 432. Eqtdtable action — Go-plaintiffs. — The general rule prevailing in Equity that it is not a misjoinder for parties having a joint or common interest in obtaining the same specific relief — such as an accounting — to join as co-plaintiffs, applies in actions of an equitable nature under the New Procedure.^ The claims are regarded in such a case as a single cause of action, although the re- spective interests of the plaintiffs differ. Otherwise if the several claims are distinct or antagonistic.^ Shields vs. Thomas, 18 Hoio. (U. S.), 253. Langdon vs. Branch (Gir. Ct. S. B. Ga), 37 Fed. Rep., 449. (In a bill for injunction, held that three creditors, each of whom severally loaned money to the president of a corporation for specified purposes, under pledges of portions of the profits, might join in a bill for an in- junction to restrain a violation of such agreement.) Plaintiffs claimed against a common trustee, and asserted that a joint wrong had been done them by the defend- ant, involving the trust property. Hdd, that where there is a common liability in the defendants and a com- mon interest in the plaintiffs, different claims to prop- erty, at least if the subjects be such as may without inconvenience be joined, may be united in one and the same suit. Bunnel vs. Stoddard (U. 8. C. Ct. Ohio), 2 Am. L. Bee., 145, 202. § 433.J Misjoinder of Causes; Different Pabtibs. 35-7 "Barliam vs. Hostetter, 67 Gal., 272. (Action by separate land-owners for injunction and damages by diversion of water. Held, that the cause of action for injunction is common to them all. But for damage to their differ- ent parcels of land, the cause of action is not joint, but several. Demurrer sustained.) Smith vs. Schulting, 14 Hun (i\^. Y.), 52. (Where plain- tiffs have been induced by fraud to execute a joint re- lease of their respective claims, the complaint is not demurrable for multifariousness, because in addition to the prayer to have the release set aside the plaintiffs ask for separate judgments for the amount due to them.) Eeed vs. Stryker, 4 Ahb. Ct. App. Dec. [N. Y.), 26 ; rev'g 6 Abb. Fr., 109. (In creditors' action several judgment creditors may join to set aside several fraudulent con- veyances made to several different persons.) s. p., Suber vs. Allen, 13 8. C, 317. [Contra, Bobb vs. Bobb, 8 Mo. App., 257.] Stallings vs. Barrett, 26 S. C, 474. (Complaint, by an adult and three minor wards for an accounting by their guardian of their undivided estate, who had given a single bond as such, is not a misjoinder of causes of action.) Walker vs. Powers, 104 U. S., 245. (In an action by creditor to set aside a fraudulent conveyance, a per- son claiming title to premises upon which the fraudu- lent conveyance is a cloud cannot join as plaintiff, as the complainants set up antagonistic causes of ac- tion, and the relief for which they respectively pray in regard to a portion of the property sought to be reached involves totally distinct questions, requiring different evidence and leading to different decrees.) Stebbins vs. St. Anne, 116 U. S., 386. (Two alternative claims, each belonging to many persons, one of whom has no interest in one claim, and others of whom have no interest in the other claim, cannot be joined in one bill in equity.) § 433. Co-defendcmts m Equity — Mtdtifm'iousness. — In Equity a suit can be brought as one cause against sev- eral defendants although the rights, interests, and liabili- ties of the several defendants as to each other be wholly separate and independent, if they are all connected with the subject-matter in such manner that the presence of 358 Abbott's Bkief on the Pleadings. Demurkek. [§ 433. each is necessary or proper in order to grant a single en- tire measure of relief to the plaintiff.' But if a claim is joined for the purpose of determin- ing a matter disconnected from the main object of the suit, the bill may be objected to as multifarious.* The objection of multifariousness rests not on a rule of law, but on the discretion of the Court, in view of convenient administration of justice ; and the following rules commonly guide that discretion : 1. A suit is not multifarious if the case against one is so entire as to require a single suit, although another defendant may be a necessary party in respect only to a part of the case.^ 2. It is not indispensable that all the parties should have an interest in all the matters contained in the suit ; it is enough that each has an interest in some material matters in the suit, and they are connected with the others.^ 3. A suit is not multifarious by .reason of containing different causes against the same person, unless the grounds of suit are different and each ground as stated is sufficient to sustain a suit.^ The objection of multifariousness goes to the whole bill, and if distinct claims against different defendants are united, any one or all of such defendants may object.® ' Brinkerhofif vs. Brown, 6 Johns. Ch. {K Y.), 139. (Lead- ing case in chancery. Holding that if the object of a suit is to reach the entire assets, whether of an individ- ual, a partnership, or a corporation, which have been dispersed by fraudulent diversions, with the cooperation of various other persons, all the transactions forming a connected series of acts in which all the defendants were more or less concerned, though not jointly in each act, it presents but one cause of action.) Graves vs. Corbin, 132 U. S., 571, 587 ; s. c, 33 Law. ed., 467. (Approving Brinkerlioff vs. Brown, above cited, and holding that there was not a separable contro- versy, under the Eemoval Act.) §433.] Misjoinder of Causes; Different Parties. 359 Putnam vs. Sweet, 1 Chand. ( Wis.), 286, 332. (Stock- holder's action against usurping officers of corporation and others. Hdd, that privity in interest oil the part of the defendants was not necessary ; for parties act- ing in hostility to each other may yet be joined if their acts in combination produce a grievance.) Potts vs.Ka.hn (Z>. G. D. M. J.), 32 Fed. Rep., 660. (Bill by assignee in bankruptcy to set aside a mortgage to one defendant, a conveyance to another, and a bill of sale to a third. Holding it not necessary to show that one defendant had anything to do with the other parts of the scheme.) Fiery vs. Emmert, 36 Md., 464. The Court say: "In order to sustain a demurrer to a bill in equity on the ground of multifariousness, it should either appear that several matters perfectly distinct and independent are joined in the bill against the same defendant, thus compelling him to unite in his answer different matters wholly unconnected with each other, or that the bill contains the demand of several matters, of a distinct and independent nature, against several defendants, thus imposing upon each of these the costs incident to the trial of several claims against the other defend- ants, with which he has no connection and in which he has no interest. Hence the objection should be con- fined to cases in which the demand against each par- ticular defendant is entirely distinct and separate in its subject-matter from that in which other defendants are interested, and does not apply where there is a com- mon liability in the defendants, and a common although not coextensive interest in the complaints." 'Washington City Savings Bank vs. Thornton, 83 Va., 157, 165 ; 2 Soufh East. Rep,, 193. (Bill filed to obtain per- sonal decree against one of the defendants as endorser of notes ; to obtain like decree against him by way of damages for breach of warranty ; to quiet title to part of the land as to the other defendants, and to sell the same to pay the notes ; and to restrain defendants from cutting timber on the land. Held, multifarious. The Court say that it is well settled that a bill in equity is demurrable in which are united several distinct rights, each sufficient to sustain a bill against one de- fendant, or in which there is a demand of several dis- tinct matters against several defendants, who are un- connected in interest or liability.) Belt vs. Bowie, 65 Md., 350 ; s. c, 4 Atlantic Rep., 295. (Where a bill prays for relief in respect to two distinct 360 Abbott's Brief on the Pleadings. Demuerek. [§ 433. matters, — e.g., partition, and the enforcement of a mort- gage claim against the estate, — it is multifarious.) 'Brown t;s._ Guarantee Trust Co., 128 K S., 403. (Fore- closure joining claim that original grantor be decreed to make specific performance so that mortgage shall be a first lien.) United States vs. Am. Bell Tel. Co., 128 U. 8., 315. (Sev- eral patents, one of which might be sustained although the other might not.) Middletown Savings Bank vs. Bacharach, 46 Conn., 513. (Bill for foreclosure, removal of a cloud upon plaintiff's title by reason of a tax sale, and for possession of the mortgaged premises. Sdd, the leading object of the bill was the foreclosure of the mortgage, and that it was not multifarious because it asked incidental relief against some of the defendants and not against all.) Followed in De Wolf vs. Sprague M'f'g Co., 49 Conn., 282. Attorney-General vs. Poole, 4 Jf«/Zme d; C, 17, 31; Attorney- General vs. Cradock, 3 id., 85; Turner vs. Bobinson, 1 /Simons & Stu., 313. 'Brown vs. Guarantee Trust Co. (above cited). Addison vs. Walker, 4 Yo. & Col. Ch., 442 ; Parr vs. Attorney-General, 8 CI. & Fin., 435 ; Worthy vs. John- son, 8 Oa., 238. Gaines vs. Chew, 2 How. {U. 8.), 619. (A bill filed to set aside a will which has been admitted to probate, and to establish another which it is alleged has been fraud- ulently suppressed ; for an account to be required from the executor under the first will, of all the real and personal property which came to his hands, a portion of which, it is charged, was, by a combination with various persons, fraudulently appropriated ; and for a delivery of the possession of all lands which belonged to the testator at the time of his death, and account of the rents and profits ; and which makes parties defend- ants the executor and all persons who, by purchase or otherwise, have come to the possession of any prop- erty, real or personal, belonging to the testator at the time of his death, is not multifarious. It avoids a multiplicity of suits, and provides for the investigation of facts, in which all the defendants are interested, without subjecting them to unnecessary inconvenience and expense.) s. p., Gaines vs. Mausseaux ( U. 8. Circ. Ot. La.), 1 Woods, 118. Oliver vs. Piatt, 3 How. {U. 8.), 333, 411 ; aff'g 3 McLean, 27. (A bill which embraces the distinct claims of § 433.] Misjoii^DEB OF Causes; Different Parties. 361 several parties is not open to the objection of multifa- riousness, if tlie interests of all are so minged in a series of complicated transactions, that entire justice could not be conveniently obtained in separate and in- dependent suits.) ' Brown vs. Guarantee Trust Co., 128 U. 8., 403. Bedsole vs. Monroe, 5 Iredell Eq., 313 ; Larkins vs. Bid- die, 21 Ala., 252 ; Nail vs. Mobley, 9 Ga., 278 ; Robin- son vs. Cross, 22 Conn., 171. ' Boyd vs. Hoyt, 5 Paige Ch. {N. Y.), 79. (The Court say : "The form and effect of a demurrer to a bill in chancery for multifariousness is substantially the same as a demurrer to a declaration at law for a misjoinder of actions, or of different causes of action which can- not be properly litigated in the same suit. The de- murrer in either case goes to the whole bill or decla- ration.) [See Gibbs vs. Clagget, 2 Gill & John., 29 ; Johnson vs. Anthony, 2 MoUoy Rep., 373. And where a joint claim against two defendants is improperly joined in the same bill with a separate claim against one of the de- fendants only, either or both of the defendants may demur for multifariousness. (Ward vs. Duke of Nor- thumberland, 2 Anst. Hep., 469.)] Swift vs. Eckford, 6 Paige, 22 (to same effect). Mcintosh vs. Alexander, 16 Ala., 87. (Bill alleged that defendants had conspired to remove certain slaves, in which complainants had a residuary interest, beyond complainants' reach, and that one of the defendants, A, had covenanted to deliver to one of the complainants certain of the slaves. Held, that a demurrer for multi- fariousness by A. was properly sustained, and that it was proper for the chancellor to dismiss the whole bill at the final hearing, although a decree pro confesso had been against the defendants not demurring. The Court here say : " The general rule is that a demurrer for multifariousness, like a demurrer for a misjoinder at law, goes to the whole bill ; and if sustained, the bill should be dismissed, and ought not to be made the foundation of partial relief.") Dunn vs. Cooper, 3 Md. Ok, 46. (After receiver ap- pointed on a creditor's bill to set aside fraudulent con- veyances, an amended bill was filed attacking other conveyances of the same grantor, and asking that the receiver might be ordered to sell certain property that was in danger of being lost. Held, that a demurrer for multifariousness to the amended bill by two of the parties to the original bill and by one to the amended 362 Abbott's Brief on the Pleadings. Demuerek. [§.434. bill, should be overruled, as it was necessary, if the de- murrer was sustained, to dismiss the bill in toto, which under the circumstances of the case would be inconvenient. [Citing Gibbs vs. Claggert, 2 G. d; J., 29 ; White vs. White, 5 Gill, 376.]) Butts vs. Genung, 5 Paige {N. Y.), 253. (Under W. Y. It. S. a creditor of decedent cannot file a bill against his heirs and personal representatives to obtain satis- faction of a debt out of the real and personal estate, and such a misjoinder renders the bill multifarious. Separate demurrers by administrator and heirs should have been sustained and bill dismissed.) Contra, Buerk vs. Imhaeuser, 8 Fed. Sep., 457, where the Court remarks that, as the defendant demurring is in no worse position by reason of the uniting of the matters in one suit, his demurrer for multifariousness must be overruled. s. p.. Hill vs. Bonaffen, 2 W. N. C. {Pa.), 356 ; Atnill vs. Ferrett, 2 BlatcJif. C. a., 39, 44. [Compare Bermes vs. Erick, 38 N. J. Eq., 88. (A bill by one surety against three others to compel contribution al- leged that two of the defendants had fraudulently con- veyed their property in order to avoid contributing. Hdd, that the defendant not a£fected by such allega- tions was not required to answer them, and could not set up therefore that the bill was multifarious as to the other two.)] § 434. — Go-defendants under the New Procedwre. — Under the New Procedure, claims affecting several de- fendants, such as might have been brought within the compass of a single suit in equity, are regarded as one cause of action ; and in such actions, therefore, the equita- ble rules as to the joinder of parties defendant are still applicable. ' Eeed vs. Stry;ker, 12 Ahh. Pr. {N. F.), 47. (Creditors' suit ; following under the Code the rule in Brinckerhoff vs. Brown, § 433, n. 1.) Turner vs. Conant, 18 Ahh. N. C. {N. Y.), 160; s. c, 10 Civ. Pro. R., 192. (Action by claimant of corporation bonds against a company to compel delivery, and against an adverse claimant holding a certificate, not misjoin- der, for the delivery of the bonds was one cause o£ i 434.] MisJOiNDEK OF Causes; Different Parties. 363 action, and cancelling the certificate outstanding merely auxiliary.) [Comfare with Day vs. Bank of State of N. Y., 52 N. T. Super, a. {J. &. S), 363 ; s. c, 9 Civ. Pro., 51. (Claim- ant of stock under somewhat similar circumstances. Edd, that the claim against the corporation and that against the wrongful holder of the outstanding certifi- cate were distinct causes of action, and could not be joined where the complaint did not aver that the cor- poration had transferred or had threatened to transfer on its books the shares to the wrongful holder of the certificate.)] Bradner vs. Holland, 33 Hun {N. Y.), 288. (A creditor holding a joint judgment against debtors entitled to separate legacies under the same will may properly join them as defendants in one action to reach such property.) Garner vs. Harmony Mills, 6 Abb. N. C. {N. Y.), 212 ; s. c, less fully, 45 Super. Gt. {J. & S.), 148. (Although all the defendants be not jointly connected in every act of a breach of trust alleged in the complaint, yet if there are a series of acts on their part produced by the same fraudulent intent, which contributed to the injury of the plaintiffs, and the statements are not made as sep- arate and distinct causes of action against the several defendants, and a cause of action is alleged by which they are all affected and in respect to which they are necessary parties, the several matters may be joined in one complaint.) Holmes vs. Abbott, 53 Eun {N. Y.), 617 ; s. c, 6 N. T. Supp., 943. (Committee of a lunatic may sue to ascer- tain the lunatic's interest in the property, and the amount of liens thereon, although different defendants claim separate liens ; for the property is the " subject of the action.") s. P., Mahler vs. Schmidt, 43 Eun, 514. (Haight, J., says that the provision of the Code allowing joinder, if it " appear upon the face of the complaint that all the causes of action so united are consistent with each other, and that they affect all of the parties to the action, is but declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centring in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them ; but if the action is against difierent persons concerning things of distinct natures, in which some of the parties 364 Abbott's Brief on the Pleadings. Demuheee. [§ 435. have no interest, then the action cannot be joined." [Citing Fellows vs. Fellows, 4 Cow., 682.]) Jones vs. Morrison,. 31 Minn., l40. (Where the object of the action was to protect a stockholder from a contem- plated conspiracy, it was held no objection to joinder of several defendants that their respective acts were done at different times, and all the defendants were not benefited by all of the acts, or not in the same degree.) § 435. Different capacities. — Where the same person is a party in several capacities, there is a misjoinder if each cause of action does not afEect him in all such ca- pacities, whether he is plaintiff ' or defendant.^ ' Brown vs. Webber, 60 Mass. (6 Cush.), 560. (A count on a promise to the plaintiff individually cannot be joined with a count on a promise to an intestate of whom plaintiff is administrator.) Mertens vs. Loewenberg, 69 Mo., 208. (A personal action cannot be united with one brought in a repre- sentative capacity.) Dannaher ■us.' City of Brooklyn, 4 Civ. Pro. B. {N. Y.), 286. (Plaintiff cannot unite a cause of action for negli- gence, causing death of one person of whose estate he is the administrator, with a cause of action for the death of another person of whose estate he is also ad- ministrator.) [Citing Lucas vs. N. T. Central E. E. Co., 21 Barh., 245.] Stanton vs. Missouri Pac. Ey. Co., 15 N. Y. Civ. Pro. B., 296 ; 2 N. Y. Supp., 298. (A cause of action in favor of plaintiff as an individual cannot be properly united with a cause of action in plaintiff's favor as a stock- holder of a corporation, and therefore representing the corporation.) [But plaintiff's demand as a surviving partner, being an individual right, may be joined with another individual demand not connected with the partnership. McCartney vs. Hubbell, 52 Wise, 360.] So also, as being in the same capacity, plaintiff may unite an indebtedness arising on a contract with her as ad- ministratrix with an indebtedness arising on a contract with her intestate. Valleau vs. Cahill, 1 N. Y. City Ct., 47. [Citing Bogert vs. Hertell, 4 Hill, 505 ; Wells vs. Webster, 9 How. Pr., 251 ; Fry vs. Evans, 8 Wend., 530.] [But see Ferrin v. Myrick in next note.] Compare cases cited in note 1, § 400. §435.] Misjoinder OF Causes; Dipfeeent Paeties. 365 * "St. Joseph's Orphan Society vs. Wolpert, 80 Ky., 86. (Demands against common guardian for maintenance of several infants ; — separate causes of action not joinable.) French vs. Salter, 17 Hun (JV. Y.), 546. (A cause of action against the trustee of an insolvent savings bank to re- cover money lost or wasted by illegal investments can- not be united with an action on his personal bond given to make up his deficiencies in the bank's assets. [Citing Mappier vs. Mortimer, 11 Ahb. Pr. JV. S. {JV. r.), 458 ; Clark vs. Coles, 50 How. Pr., 178 ; Wiles vs. Suydam, 64 N. T., 173.]) Paulsen vs. Van Steenbergh, 65 How. Pr. {N. Y.), 342. (A complaint against a person as president of a corpo- ration, which demanded an accounting by the defendant in his ofiScial capacity as to the property of the corpo- ration and as to plaintiff's property, — Tield, demurrable.) Weeks vs. Cornwell {JST. Y), 39 lfew,'643 ; s. c, 9 Civ. Pro., 28. (A common trustee of several distinct trusts under a will, in favor of several different cestui que trustents, cannot join in one complaint several causes of action for an accounting and settlement of the different trusts.) Price vs. Brown, 10 Ahh. N. C. {JSf. Y.), 67. (Causes of action arising out of a breach of trust by a testator, united in an action against his executor, brought by the surviving trustee, not a misjoinder of causes of action.) Ferrin vs. Myrick, 41 JSf. Y., 315. (A cause of action upon a contract with testator in his lifetime, cannot be united with one upon a contract made by his personal representative.) [See Valleau v. Cahill in last note.] Compare Day vs. Stone, 15 Ahh. Pr. N. S. (iV. Y), 137 ; s. c, 5 Daly, 353. (In an action against the adminis- trator of a deceased agent to compel an accounting, etc., plaintiff may ask judgment against the adminis- trator individually for the payment of moneys and the delivery of books and specific property belonging to plaintiff which came to the deceased as such agent, and which defendant has possession of and refuses to de- liver. This is not joining two causes of action.) But in States where such representative is liable in his representative capacity both as to an action against the estate arising before the decedent's death and one arising on a contract by him as such representative, such actions may be joined. Howard vs. Powers, 6 Ohio, 92. Hapgood vs. Houghton, 27 Mass. (10 Pick), 154. See JV. Y. Code Civ. Pro., § 1815, which is as follows : "An action may be brought against an executor or 366 Abbott's Bkieb on the Pleadings. Demukkek. [§ 436. or administrator personally and also in his representa- tive capacity where the complaint sets forth a cause of action in both capacities and states facts which render it uncertain in which capacity the cause of action exists against him, or where the complaint sets forth two or more causes of action growing out of the same transac- tion or connected with the same subject of action." By the statute of Colorado, claims joined must affect all the parties "in the same character and capacity;" but doubtless this nevertheless allows joinder of one person in both capacities. § 436. Allegation of two cwpadties, and cause of acPion in one. — A cause of action is not demurrable for misjoinder because it designates the defendant as sued individually and also in a representative capacity, if it shows a cause of action against Mm in either capacity. Berf ord vs. Barnes, 45 Hun (N. T.), 253. (Holding that as the complaint showed only a cause of action against defendant individually, the designation of him in a representative capacity might be disregarded as sur- plusage.) {^Compare Carter vs. Ingraham, 43 Ala., 78. (Creditors' bill against heirs, etc., of deceased debtor. Defendant C. was served with summons as executor and also as heir- at-law, but the bill prayed process against him only in the latter character, and he answered the bill only personally, as heir-at-law, and not as executor. Held, a decree against him as executor is erroneous, as the register, in issuing the summons, had no right to go outside the prayer of the bill, and the answer did not waive it, as he only answered personally.)] 3. Misjoinder or Parties. § 438. Presence of improper pa/i'ty. — In the absence of statute sanctioning such a demurrer, a demurrer assign- ing as ground the misjoinder of an improper plainti£P, or an improper defendant, is not sustainable. People ex rel. Lord vs. Crooks, 53 N. Y., 648, and cas. cit. ; Paulson vs. Portland, 16 Oreg., 450 ; s. c, 1 L. R. A., 673 ; 19 Padf. Sep., 450. § 440. J Misjoinder of Parties. 367 B. p., Morningstar vs. Cunningham, 110 Ind., 328 ; s. c, 9 West. Rep., 59. [The objection should be for insufficiency as to that plain- tiff, or for misjoinder of causes of action, as the case may require.] [The present N. Y. Code allows demurrer for misjoinder of plaintiffs. But compare Keyes vs. Little York Mining, etc., Co., 53 Cal., 724 ; s. c, 9 Reporter, 78 (joint action against several miners for injunction against allowing debris to be washed on to plaintiffs land) ; with Redels- heimer vs. Miller, 107 iTid., 485 ; s. c, 5 West. Rep., 619 ; 8 North East., 447.] § 439. Co-plaintiffs not jointly interested. — Two parties to the same contract, having separate but common inter- ests may unite in bringing an action thereon. Winne vs. Niagara Fire Ins. Co., 91 N. Y., 185, 192. (Holding, on appeal from judgment, that the mort- gagor and mortgagee could unite in one action on a policy containing the clause, "Loss, if any, payable to B. [the mortgagee] to the extent of his mortgage interest therein." ASdeews, J., said : " It is, we think, quite ap- propriate, and in accord with the flexible rule of pro- cedure now applied in courts of justice, to allow persons situated SiS are the plaintiffs to unite in maintaining the action, and the practice is sanctioned by the lan- guage of the Code and of adjudged cases." [ Citing N. Y. Code Civ. Pro., § 466 ; Boynton vs. Clinton, etc., Ins. Co., 16 Barh., 254; Ennis vs. Harmony F. Ins. Co., 3 Bosw., 516; Lasher vs. North Western Ins. Co., 18 Em, 101.]) [For other cases on the familiar rule as to joint obligees, see Sorsbie vs. Park, 12 Mees. & W., 146 ; Hopkinson vs. Lee, 6 Q- B., 964 ; Haddon vs. Ayres, 1 E. & E., 118 ; Corey vs. Rice, 4 Lans. {N. Y.), 141 ; Treat Lumber Co. vs. "Warner, 60 Wise, 183 ; s. c, 1 Ahh. New Pr. & F., 65 (bonds) ; id. 470 (undertakings).] So parties separately affected by the same wrong may sue in equity for single relief by one injunction, but not for separate damages. Murray vs. Hay, 1 Barh. Ch. {N. Y.), 59. § 440. Sepa/rate reUef. — If several plaintiffs, properly joining for single relief common to aU^ claim also separate 368 Abbott's Brief on the PLBADiifos. Dbmukrek, [§ 441. relief peculiar to particular ones, the latter demand does not render the complaint bad for misjoinder, but should be disregarded or struct out. Berolzheimer vs. Strauss, 51 N.Y. Super. Ct. (J. & 8.), 96; s. c, 1 N.Y. Civ. Pro. R., 225. Murray vs. Hay, 1 Barh. Ch. {N. Y.), 59. § 441. Persons severally liable on the same instrument. — Under the statute allowing all or any of the persons liable upon the same written instrument to be Joined as defendants,^ it is not necessary that their liability be joint,® nor dependent on precisely the same conditions. Thus if the party of the third part in the instrument is liable only in case of default by the party of the second part,^ or if one expressly signs only as security for the other,* they may be joined notwithstanding an additional fact may be necessary to be proved as against the latter. But it is necessary that they should be liable upon the same instrument ; and a separate guaranty, though written on the same paper is not the same instrument within the rule.^ If liable upon separate instruments, a demurrer by either for misjoinder of causes of action is sustainable." ' For the form of this statute in N. T. see N. Y. Code Civ. Pro., § 454, modified from the former Code Pro., § 120. A similar statute has been adopted in Colorado, Florida, Minnesota, Nebraska, North Carolina, Oregon, South Carolina, and Wisconsin ; and, in a modified form, in Arkansas, California, Iowa, Kentucky, Missouri, and Nevada. As to Tennessee, see McMinn Academy vs. Eeneau, 2 Swan, 94. ' Costigan vs. Lunt, 104 Mass., 217. (Holding that separate judgments may be remedied.) Colt vs. Learned, 118 Mass., 380. (Holding that if the obligations are distinct, they should be stated in differ- ent counts.) Estate of Britton, 15 N. Y. State Bep., 445, N. Y. Code Pro,, § 120, abrogated the common law that persons sev- § 442.] Defect of Parties. 369 erally liable could not be united in the same action, and permitted sucb joinder, though such person could be held jointly liable. [Citing Alfred vs. Watkins, 1 Code Rep. N. S., 343 ; Brainard vs. Jones, 11 How. Pr., 569 ; Strong vs. Wheaton, 38 Barb., 616 ; Cridler vs. Curry, 44 How. Pr. 345 ; Field vs.Ysm Cott, 15 Abb. Pr. N. S., 349 ; s. c, 5 Daly, 308.] " Carman v^. Plass, 23 If. Y., 286. Viadero vs. Morton, 6 JV. Y. Civ. Pro. R., 238. (Action against the sureties on a bond given by an auctioneer to the mayor of N. Y., on the granting of a license to him, the auctioneer not being made a party. [Follow- ing Field vs. Van Cott, 5 Daly, 308.]) See also Wibaux vs. Grinnell Live Stock Co. {Mord., 1889), 22 Pacif. Rep., 492. Keyser vs. Fendall, 5 Machey {D. C), 47; s. c, 3 Cent. Rep., 515. * Decker vs. Gaylord, 8 Hun {N. Y.), 110. ' Tibbits vs. Percy, 24 Barb. {N. Y.), 39. [Contra, Kautzman vs. Weirich, 26 Ohio St., 830. (Guar- anty indorsed by payee upon note.) s. P., Gagan vs. Stevens, 4 Utah, 348.] • Barton vs. Speis, 5 Hun {N. Y), 60. [So far as this case holds that demurrer does not lie if there is but one statement of the cause of action, it is overruled.] XII. Demukeer EOE Dei 'EOT OF Parties. § 442. Form of demurrer §445. — absence of "indispensable" 443. What is a defect. party. 444. Who may demur- -in absence 446. Excuse for non-joinder. of merely " necessary " 447. Presumption that needed party party. is living. 8 442. Form of demv/rrer. — In Equity^ and under the New Procedure^ a demurrer for defect of parties must point out tlie omitted party either by name or by such a description as to inform the plaintiff who is intended. • StoT. Eq. PI., 501, § 543 ; Dias vs. Bouchaud, 10 Paige, 445 ; Eobinson vs. Smith, 3 id., 222 ; Dwight vs. Cen- tral Vt. E. Co. {Circ., Vt.), 9 Fed. Hep., 785; s. c, 20 EMchf., 200. • Baker vs. Hawkins, 29 Wise, 576. 370 Abbott's Beief oh the Pleadings. Demurkek. [§ 443. Skinner vs. Stuart, 13 AhK Pr. (K Y.), 442. (A demur- rer using only the words of the Code, that there is a defect of parties defendant, is insufficient.) § 443. What is a defect.— The defect of parties for wMcli demurrer is allowed, under the New Procedure, is only a deficiency and not an excess of parties either plaintiff ^ or defendant.^ ' Peabody vs. Washington County Mutual Ins. Co., 20 Barb. (if. Y.), 339; Gregory vs. Oaksmith, 12 How. Pr., 134; People vs. Mayor, etc., of N. T., 28 Barb., 240; B.c.,BAbb. Pr.,1. Lowry vs. Jackson, 27 8. C, 318, 321. 'Hill vs. Marsh, 46 Ind., 218. N. Y. & New Haven E. Co., vs. Schuyler, 7 Abb. Pr. {N. Y.), 41 ; s. c, less fully, 17 N. Y., 592 ; Allen vs. City of Buffalo, 38 N. Y, 280; Churchill vs. Trapp, 3 Abb. Pr., 306 ; Eichtmyer vs. Eichtmyer, 50 Barb. {N. Y.), 55; Pinckney vs. Wallace, 1 id., 82. Neil vs. Ohio Agric, etc., College, 31 Ohio St., 15. Great Western Compound Co. vs. ^tna Ins. Co., 40 Wise, 373. It is the same as non-joinder of a neceSsary party, in an action at law, under the superseded system, or the omission of a necessary party in a suit in equity. Palmer vs. Davis, 28 K Y., 242 ; s. p., Daby vs. Betts, 16 Abb. Pr. {K Y.), 466, note ; s. c, as Davy vs. Betts, 23 How. Pr., 396 ; KoUs vs. De Leyer, 17 Abb. Pr., 312 ; s. c, 41 Barb., 208 ; 26 How. Pr., 468. § 444. Who may demv/r,—for absence of merely " nec- essary " pa/rly. — If the controversy presented by the complaint appears on the face thereof to be such that it can be determined without prejudice to a person not joined who would be a proper party, but whose presence is not indispensable for his own protection, but neces- sary only for the protection of those who are made parties or some of them, or that it can be determined by ■expressly saving his rights, a demurrer for defect of parties for not joining him cannot be sustained, unless § 445.] Defect of Parties. 371 interposed by a defendant wlio is or may be prejudiced by the non- joinder. Newbould vs. Warrin, 14 Abb. Pr. {N. Z), 80. (Action to reach property conveyed in fraud of creditors. -HeM, that defendants could not demur merely because it appeared that other property of the debtor had been fraudulently conveyed to persons who had not been made parties.) Anderton vs. Wolf, ..41 Hun {N. Y.), 571 ; s. c, 4 State Bep., 101. (Stockholder's action against officers to prevent waste of corporate property. Hdd, defendants could not demur merely because all the directors had not been made parties.) s. p., Bradt vs. Church, 110 N. Y., 537 ; aff'g 39 Hun, 262. Dart vs. Palmer, 1 Barb. Ch. {N. Y.), 92. (Where the case made by the bill entitles complainant to particular relief against defendant, and would entitle him to fur- ther relief also if necessary parties were before the Court, and the prayer specifically asks for the more extended relief, to which he is not entitled in conse- quence of defect of parties, defendant may properly de- mvT to the whole bill, for their absence.) § 445. — for absence of "■ indispensahW'' party. — If the controversy presented by the complaint appears on the face thereof to be such that it cannot be determined without prejudice to a person not made a party, or by saving his rights, he is deemed an indispensable party ; and a demurrer for defect of parties in not joining him may be interposed by any defendant. Sanders vs. Village of Yonkers, 63 N. T., 4^9. (Action against a village to have an assessment declared void and to restrain defendant from executing a lease to purchaser at tax sale. Hdd, that defendant might de- mur for absence of the purchaser.) Turner vs. Conant, 18 Abb. N. C.{N. Y.), 160; s. c, 10 Civ. Pro. B., 192. (Person claiming an interest ad- verse to plaintiff necessary; because defendant was entitled to protection against both.) Moore vs. Hegeman, 6 Hun {N. Y.), 290. (Suit to have trust in a will declared void. Held, that defendant 373 Abbott's Beief osr the Pleadings. Dbmubker. [§ 446. might demur for omission to join persons interested in sustaining the trust.) Inman vs. Corwin, 9 N. Y. Supp., 195. Graham vs. Minneapolis {Minn., 1889), 42 N. W., 291. (Third person shown by the complaint to be owner of the cause of action.) § 446. Excuse for non-joinder. — It is the better opin- ion that a general allegation that one who appears on the face of the pleading to be an indispensable or a necessary party has no interest, without stating particulars, is not sufficient on demurrer, because it is a mere conclusion, and contrary to the facts stated ; but that a general alle- gation, without particulars, that his interest has ceased, is sufficient on demurrer, as being an allegation of fact. Compare Farni vs. Tesson, 1 Black, 309 ; Coster vs. N. Y. & Erie E. Co., 3 Jbb. Pr. {N. Y.), 332 ; s. c, 6 Bwer, 43 ; Gilham vs. Cairnes, 1 III. {Breese), 164 ; Great "West. Comp. Co. vi. Ins. Co., 40 Wise, 373; Kellar vs. Carr {Ind., May, 1889), 21 North East. Rep., 463. § 447. Presumption that needed pa/rty is living. — A defect of parties is deemed to appear on the face of the complaint although the complaint does not show that the needed party is living.' If, however, death is alleged, a demurrer for not join- ing the executor or administrator of deceased will not lie if there are no allegations to show that one has been appointed ; ^ unless the case be such that some represent- ative of the deceased is an indispensable party. • Porter vs. Fletcher, 25 Minn., 493. Zabriskie vs. Smith, 13 N. Y., 322 ; followed in Eaton vs. Balcom, 33 How. Pr., 80, and in effect overruling Bur- gess vs. Abbott, 6 Hill {N. Y), 135 ; Scofield vs. Van Syckle, 23 How. Pr. {N. Y.), 97, and other early New Tork cases to the contrary. Ehle vs. Purdy, 6 Wend. {N. Y.), 629. (One of two joint obli- gees cannot sue unless he avers the other is dead; and the objection, when it appears, may be raised by demux- §449.] Pendency^ OF A FoKMBR Suit. 373 rer or in arrest of judgment. WhersTer, by reason of a several interest, one may sue, lie must set forth the bond truly, and then, by proper averments, show a cause of action in himself alone, clearly embraced within the condition.) Sullivan vs. N. Y. and Eosedale Cement Co., 14 JV. Y. Oiv. Pro. B., 365. [Citing also Sanders vs. Yonkers, 63 N. Y., 488.] Scott vs. Godwin, 1 B. & P., 67. (Death will not be pre- sumed.) * [Cbwira, Gilbert vs. Allen, 57 Jrn^., 524; s. p., Davis ■z;s. Willis, 47 Tex., 154.] " Am. Ins. Co. vs. Gibson, 104 Ind., 336 ; s. c, 3 North East. Bep., 892, 895. Xm. DEMUERER FOR PENDENCY OF A FORMER SUIT. § 448. When demurrer lies. § 449. General rule. § 448. When demurrer lies. — The provision of the N. Y. Code allowing demurrer on the ground of the pen- dency of another action for the same cause, does not change the rule as to what prior proceeding is ground of abatement or stay,^ but simply allows the objection rec- ognized by settled practice to be taken by demurrer when the fact appears on the face of the complaint.® " Burrows vs. Miller, 5 How. Pr. {N. Y.), 51. (As to what are the grounds and limit of the defence, see note in 26 Abb. N. C, 218, where the cases are collected.) ' Hornfager m. Hornfager, 1 Code B. JST. 8. {N. Y.), 412. (Objection not available unless the facts appear on the face of the complaiat.) § 449. General rule as to double vexation. — If it ap- pears by the pleading demurred to that the former action 374 Abbott's Bkief on the Pleadings. Demukker, [§ 449. is in the jurisdiction of the same state or nation, embraces the same plaintiff and the same defendant, and is for the same subject, effect, and relief, the present action is pre- sumed on demurrer to be unnecessary and vexatious, if nothing to indicate the contrary appears.' If the prior action is in a foreign country, the court will not so presume.^ ' Eadford vs. Folsom (U. S. O. Ot. S. D. Iowa), 14: Fed. Rep., 97. Hyman vs. Helm {Erig. Ct. of App.), 24 Ch. Div., 531 ; s. c, 49 L. T. R. N. 8., 376; s. c, 23 Weekly Rep., 258. (Bbett, M. E.) [^Contra, Lynch vs. Hartford Fire Ins. Co., 17 Fed. Rep., 627, citing Stanton vs. Embree, 93 U. S., 548.] ' McHenry vs. Lewis {Eng. Ct. of App., 1883), 31 Weekly Rep., 305 ; affg 22 Ch. Div., 397 ; s. c, 46 L. T. R. iT. S., 567. (Question arising on motion to stay.) Hyman vs. Helm, 24 Ch. Div., 531; s. c, 49 L. T. R. N. S., 376 ; 32 WeeMy Rep., 258, Hatch vs. Spofford, 22 Conn., 485. (A second suit is not necessarily vexatious ; but all the circumstances are to be considered. If the second suit secures a better remedy it is not to be deemed vexatious.) XIV.— DEMURRER TO ANSWER. [Following the Co-mmon Law practice of demurrer to plea, the New Procedure allows demurrer to answers in equitable as well as legal actions. In Equity demurrer to answer is not allowed.'] [The technical rule of the old practice, requiring greater certainty in special pleas than ia declarations, and greater certainty in pleas in abatement than in others/ is not in force under the New Procedure, the test now being the same in all cases, viz., whether the adverse party has been fairly apprised • Crouch vs. Kerr, 38 Fed. Sep., 549 (striking out a demurrer, because the remedy is to except, or to set the cause down for hearing on bill and answer). ' Pitts Sons Mfg. Co. vs. Com. Nat. Bk., 121 Bl., 583; Humphreys e». Newport News, etc., Co. 33 W. Va., 135; s. c, lOSouthEast. Bep.,39; 1 ChiiL PI. 16 Am. ed., 357. § 450.] To Ahswbb; Gekebal Principles. 375 of the matter to be tried. Nevertheless answers are more strictly scrutinized than complaints, and dilatory answers more strictly than answers to the merits, because of the greater temptation to plead evasively. But under the New Procedure the remedy for uncertaiuty in either case is by motion to make definite.] 1. General principles, §g 450-463. 3. Demurrer to denials (including pacts provable under gen- ERAL ISSUE), g§ 463-465. 3. Demurrer to new matter con- sidered AS constituting a mere defence, §§ 466-472. 4. Demurrer to new matter con- sidered AS constituting a counterclaim or ground ov affirmative relief, §§ 473- 484. 5. Demurrer by a co-defendant, §485. 1. General Principles. § 450. Single answer to several counts, etc. 451. Several defences in one answer. 453. Effect of bill of particulars. 453. Documents required by statute to be filed, etc. 454. The same. — "Foundation of defence.'' 455. The same, — defendant's use of plaintiff's exhibit. 456. Failure to meet plaintiff's avoid- ance of anticipated defence. 457. Equitable defences. § 458. Equitable bar without affirma- tive relief. 459. Common-law defences on equi- table grounds. 460. Inconsistency not ground of demurrer. 461. Defendant may attack declara- tion or complaint. 463. — aider of complaint on de- murrer to answer. [As to facts occurring pending the suit see § § 450. /Single a?iswer to several counts, etc. — If a dec- laration at Common Law ^ or a complaint under the New Procedure^ contains several counts or causes of action, an answer purporting to be to the whole pleading, without discrimination,^ is bad on demurrer, unless it is sufficient as an answer to each count or cause of action. ' Hogan vs. Koss, 13 How. {U. S.), 173 ; s. c, 14 Law. ed., 100. Gebbie vs. Mooney, 121 lU., 255 ; s. c, 12 JVorth East. Rep., 472. 376 Abbott's Brief o^ the Pleadings. Dbmubebb, [§ 451. 1 Chitt PI, 16 Am. ed., 579. iCompare Babb vs. Mackey, 10 Wis., 371, (holding that a plea may still stand for what it does answer, though it professes to answer the whole, if other pleas which answer the other grounds of complaint also accom- pany it.)] • Abshire vs. Corey, 113 Ind., 484 ; s. c, 13 West. Bep., 297; 15 I^oHh East. Rep., 685. Eoss vs. Duffy, 12 JV. T. State Bep., 584. 'But a separate defence which does not expressly say which cause of action it refers to may nevertheless be deemed to " distinctly refer" to one, within the meaning , of the statute, if incapable of being understood as refer- ring to any but that one. Crasto vs. White, 52 Hun {N. Y.), 473 ; s, c, 23 State Bep., 535 : 17 Civ. Pro. B., 46; 5iV. Y.Supp.,n%. § 451. Several defences in one answer. — If an answer contains several defences, a demurrer purporting to be to the wtole answer without discrimination cannot be sus- tained if any defence is good, Flint vs. Dulany, 37 Kans., 332 ; s. c, 15 Padf. Rep., 208. But a demurrer expressed to be to " each and every de- fence contained in the answer," is the same in effect as though plaintiff had demurred separately to each de- fence. Kennagh t;s. McGolgan, 21 5^tafe ^e»., 326 ; s. c, 4 N. Y. Swpp., 230. § 452. Effect of hill of pcurticula/rs. — On demurrer to an answer, the bill of particulars furnished under the complaint cannot be considered ; and if the answer does not show a defence to the complaint, it is not sufficient that it shows a defence to a claim specified in the bill of particulars. Yan Zant vs. Shelton, 40 Miss., 332 ; Dibble vs. Kemp- shall, 2 Hm {N. Y.), 124. (At Common Law.) Kreiss vs. Seligman, 8 Barh. {N. Y.), 439. (Under the Codfe.) [Oompare Eundlett vs. Weeber, 69 Mass. (3 Gray), 263, (holding that although the answer must be to the count § 453.] To Answee; Gekeeal Peinoiplbs. 377 and not to the bill of particulars, if plaintiff, counting for goods sold, and, by a separate count, for the balance due, files a bill of particulars applying in terms to each count, he cannot, upon defendant sufficiently answering that the sales were illegal, take judgment for want of an answer to the count on the balance of account.)] [Mass. Fuh. Stat. 1882, c. 167, § 10, makes the bill of particulars filed with one of the common counts a part thereof, to be answered as such.] In Thurston's Admr. vs. Oldham, 6 Bush (Ky.), 16, it was held that where the count alleged indebtedness on an account, a denial of indebtedness without taking issue on any of the items was bad. [Compare also Beard vs. Porter, 124 U. S., 437, 31 L. ed., 492. Here a complaint to recover duties paid, failed to allege that the suit was brought within the prescribed time, but the bill of particulars showed, as prescribed by statute, the date of appeal to the Secretary of the Treasury, and the date of his decision. On demurrer to the answer, — Held, that it was no defect, in the light of the statements of the bill of particulars ; hence, the answer being bad, judgment ordered for plaintiff.] § 453. DocuTnents required by statute to he filed, etc. — Under Statutes ^ and Rules of Court requiring " instru- ments " pleaded to be filed or furnished witli the plead- ing, if the effect of the statute is to make the exhibit a part of the pleading, an answer based on a written in- strument, a copy of which is not filed with or made part of it, is bad on demurrer.^ But upon the same principles that have already been stated in reference to pleading exhibits,^ an instrument that is only collaterally involved is not within the statutes.* ' For these statutes and their object see Keception of Evidence. ' Strough vs. Gear, 48 Iind., 100. Hosford vs. Johnson, 74 id., 479. (Cross-complaint seek- ing foreclosure of a senior mortgage.) ' See § 236, etc., Demueree VI., Documents. ' Kobards vs. Marley, 80 Ind., 185. (To a pleading seeking to rescind a land contract, a deed of reconveyance tendered by defendant is not a proper exhibit.) 378 Abbott's Brief ok the Pleadings. Demuheer, [§ 454. § 454. The same—'' Foundation of defence.'' — Where defendant sets up a covenant or obligation of the plaintiff, and a breach, thereof, as a defence, the instrument con- taining the covenant is within the statute.^ But if the breach consists of the existence of an in- cumbrance in violation of the covenant set up, the instru- ment constituting the breach is not the foundation of the defence, and not within the statute.* So it is held that in an action for breaking and enter- ing a close, defendant need not set forth in his answer a lease under which he Justifies.^ And where defendant sets up a deed from plaintiff for right of way under which he justifies, the deed is not within the statute.* ' Nosier vs. Hunt, 18 Iowa, 212. (Counterclaim for breach of covenant in a deed.) Galbraith vs. McNeily, 40 Ind., 231. (Failure of consid- eration for note sued on, by reason of breach of cove- nant in deed.) Avery vs. Dougherty, 102 Ind., 443 ; Ashley vs. Foreman, 85 Ind., 55. (Failure of consideration for note sued on, because of eviction contrary to a covenant in lease.) Landon vs. White, 101 Ind., 249. (Action on note : answer that plaintiff violated conditions of mortgage given as collateral.) ' Strain vs. Huff, 45 Ind., 222. ' Dillon vs. Brown, 11 Gray {Mass.), 179. * Taylor vs. Cedar Bapids & St. P. E. Co., 25 Iowa, 371. § 455. The sa/me, — defendant's use of plainUffs ex- hibit. — If plaintiff has duly filed and referred to an exhibit effectually making it a part of his pleading, a defendant desiring to plead the same instrument may refer to it as that " of which a copy is filed with the complaint," with- out setting out an additional copy.^ But cannot do so except by expressly referring to it in his pleading, so as to identify it.* If he has thus made plaintiff's exhibit a part of his § 457.] To Answer; Gejteeal Peinciples. 379 own pleading, Lis answer, if a sufficient defence to the in- strument, is good, altliougli it would not be a sufficient defence to the allegations of plaintiff's pleading ; for the exhibit controls.^ ' Pattison vs. Vaughan, 40 Ind., 253 ; Sidener vs. Davis, 69 Ind., 336 ; Grubbs vs. Morris, 103 Ind., 166. " Campbell vs. Eoutt, 42 Ind., 410 ; Watkins vs. Hill, 106 Ind., 543. ' Liberty Tp. Draining Asso. vs. Watkins, 72 Ind., 459. § 456. Failure to ineet plaintiff's avoidance of antici- pated defence. — It is the better opinion that if plaintiff's complaint states and avoids an anticipated defence, an answer which sets up that defence is insufficient if it does not also meet the avoidance. For authorities on this question see note in 25 Abb. N. G., 120. s. p., Lemon vs. Dryden, 43 Kans., All. Denial of part and avoidance of other parts of an alleged cause of action may be sufficient as a single defence. Colglazier vs. Colglazier, 117 Ind., 460. § 457. Equitable defences. — Under the New Proced- ure which allows equitable defences in actions of a legal nature,^ and allows defendants to claim equitable relief,^ an answer which states an equitable defence must allege the facts constituting it as fully and clearly as if it were relied on as a cause of action for affirmative relief in equity.^ " Cake vs. Peet, 49 Conn., 501. Eose vs. Williams, 5 Kans., 483. Dobson vs. Pearce, 12 N. T., 156 ; Crary vs. Goodman, 12 N. 7., 266 ; Peck vs. Brown, 26 Hoio. Pr. (JV. T.), 350 ; Mandeville vs. Eeynolds, 68 N. Y., 528. AbouloffmOppenlieimer(mgr. Ot. ofApp.), L. E. 10 Q. B., 295 ; s. c, 30 WeeUy Bep., 429. 380 Abbott's Bkiep on the Pleadings. Demukkek, [§ 458. ' Even in an inferior local court not having general equity jurisdiction. Mack vs. Kitsell, 20 Ahh. N. 0., 293. For an interesting history of the introduction of equitable defences into common law actions in Pennsylvania, see 1 Law Quarterly Rev., 458. For the Mass. rule see Sherman vs. Galbraith, 141 Mass., 440 ; s. c, 5 North East. Hep., 858. ' Downer vs. Smith, 24 Cal, 114 ; Hughes vs. Davis, 40 Id., 117 ; Bruck vs. Tucker, 42 Id., 346. "Ward vs. Winn, 42 Ga., 323. Ells vs. Pacific E. Co., 51 Mo., 200. Cummings vs. Morris, 25 N. Y., 625. (Action on note : equitable set off or counterclaim for a partnership ac- counting would have been good but for lack of allega- tion of insolvency of estate of deceased partner.) § 458. Equitable ha/r without affirmative relief. — An answer which states facts that without affirmative relief constitute an equitable bar is sufficient for that purpose.' But an equitable defence on which, by reason of the ab- sence of an indispensable party, the court cannot go on to grant some necessary affirmative relief to the defend- ant is not sufficient.^ 'Hoppock vs. Strubble, 60 N. Y., 430. (Ejectment by vendor ; defence that there was a mistake in quantity in mesne conveyances.) Cythe vs. La Fontaine, 51 Barb. {N. Y.), 186. (Ejectment against purchaser from plaintiff's vendor : defence that at the time of the alleged default by defendant and re- scission by plaintiff's vendoi', defendant's time had been extended.) Cramer vs. Benton, 60 Barh. {JV. Y.), 216 ; s. c, 64 Id., 522. [The appellate court can direct the award of affirmative relief if the right is contested at the trial, but a pro- vision to that effect omitted from the judgment. Born vs. Schrenkheisen, 110 N. Y., 55.] Winslow vs. Winslow, 52 Irid,, 8. Webster vs. Bond, 9 Hun {N. Y.), 438 ; Hicks vs. Shep- pard, 4 Lans. {N. Y.), 335. [Com'pare Campbell vs. Jones, 25 Minn., 155. (Action to determine conflicting claims. Error to sustain de- murrer to answer which showed a bar against plaintiff, because it also asked to annid a judgment the parties § 460.J To Astswee; Gekekal Priijciples. 381 in which were not joined in this action.) Compare also Du Pont vs. DaTis, 35 Wise, 631.] [For other cases see Glacken vs. Brown, 39 Hun, 295 ; Pennoyer vs. Allen, 50 Wise, 308; s. c, 51 Id., 360; Despard vs. Walbridge, 15 iV^ Y., 374; Barker vs. Cir- cle, 60 Mo., 258, 264 ; Lombard vs. Oomham, 34 Wise, 486.] § 459. Defences in XT. 8. Courts on equitable grounds. — The rule that equitable defences cannot be pleaded in a common-law action, even in a United States court sitting in a Code state/ does not preclude defences founded on such equitable principles as courts of common law have recognized,— such as the equitable rights of a surety,^ or equitable estoppels,^ — if no specific equitable relief or equitable procedure is required. And the fact that the answer asks for specific relief unnecessarily, does not render the defence unavailable.* "Montijo vs. Owen, 5 All. N. C, 110; s. c, 14 Blatchf., 324. (Action on judgment: defence that it was inequi- tably recovered in defendant's absence : bad on de- murrer, because cause of action was legal.) Doe dem. Myrick vs. Eoe, 31 Fed. Rep., 97. (Ejectment ; allowance for improvements made in good faith cannot be granted.) Snyder vs. Pharo, 25 Fed,. Bep., 398. (Set-off of assigned claim not allowable at law.) Burnes vs. Scott, 117 U. 8., 582 ; s. c, 29 Law. ed., 991. (Want of consideration, as an equitable defence involv- ing settlement of partnership.) ^Compare Herklotz vs. Chase, 32 Fed. Rep., 433.] Church vs. Spieglburg, 24 Blatchf., 540; s. c, 31 Fed. Rep., 601. (Action by partner against copartner for breach of articles : counterclaim for accounting not ad- missible.) ' Presdt., etc., of Union Bank vs. Crine, 21 Alb. N. C, 146. " Kirk vs. Hamilton, 102 U. 8., 68. (Equitable estoppel available in ejectment, even under plea of not guilty.) * Presdt., etc., of Union Bank vs. Crine, 21 Abb. N. 0., 146. § 460. Inconsistency not ground of demu^rrer. — In- consistency between several defences^ or counterclaims* 383 Abbott's Brief on the Pleamkgs. Demurrer, [§ 460. or either is not ground for demurrer. Nor can a demur- rer to one defence or counterclaim be aided by what is contained in another.^ Even where the statutory permission to plead several defences is confined to consistent defences, an avoidance which does not expressly nor by necessary implication admit the cause of action is not inconsistent with a denial.* Inconsistency between different allegations in the same defence or counterclaim has the same effect as in- consistency in the allegations of a cause of action.^ ' Goodwin vs. Wertheimer, 99 N. T., 149 ; Bruce vs. Burr, 67 iT. ¥., 237; aff'g 5 JDaly, 510. (So held on the ground of the provisions of the N. Y. Code allowing inconsistent defences.) [Distinguished, as relating to matters in bar only, under the Code ; and held that a defendant ought not to be permitted to set up a defence in abatement, and in the same answer to contradict it by matter pleaded in bar. Hooker vs. Green, 60 Wise, 278 ; s. p., dictum in Can- non vs. Lindsey, 85 Ala., 198 ; s. c, 7 Am. 8t. B., 38 ; 3 South. Hep., 676. It should be observed, however, that the N. T. rule rests on the fact that in cases where absolute untruthfulness is indicaited by inconsistency, the remedy by motion (Mclntire vs. Wiegand, 24 Ahh. N. C, 312) is more appropriate, as allowing of support or explanation by aindavit.] Noonan vs. Bradley, 9 Wall., 394, 402, (holding that the remedy is by motion to strike out one, or to compel defendant to elect). Cannon vs. Lindsey, 85 Ala., 198 ; s. c, 7 Am. St. Rep., 38 ; 3 So. Hep., 676. (Plea of denial of executing note, and plea of set-off, not bad on demurrer.) [Contra, Lyons vs. Ward, 124 Mass., 364.] ' Bruce vs. Burr, (aiiove cited). Ewing vs. Shaw, 83 Ala.,_ 333 ; s. o., 3 So. Hep., 692. (De- nial; and plea of contributory negligence ; and counter- claim of damages for injury thereby. — Hdd, that under the system of pleading in Alabama, duplicity is no ob- jection to a plea in bar.) [Contra, Magowan vs. St. Louis Ew. Supplies Mfg. Co., 16 Fed. Sep., 738. § 460.] To Answbk; Gbkbeal Principles. 383 ' Ayres ;ys._CoviIl, 18 Barb., 260. Hand, P.J., said : " The admission made in the course of a pleading is not an admission for all the purposes of the cause ; but as Lord Denman stated in Robins vs. Maidstone (4 Q. B. Be'p., 811), correcting what he had said in Bingham vs. Stanley (2 Q. B. Rep., 127), is an admission ' for all pur- poses regarding the issue arising from that pleading.' " For other cases see Ozark Land Co. vs. Leonard, 24 Fed. Rep., 660 ; Abst. s. c, 32 AV). L. J., 413, (holding incon- sistent answers not available as an affidavit of merit). Hummel vs. Moore, 25 Fed. Rep., 380; s. c, 20 Reporter, 111, (sanctioning inconsistent defences in cause re- moved from State court). Bachman vs. Everding, 1 Saioyer, 70, (inconsistency not shown for purpose of striking out, by mere comparison.) Flint vs. Dulany, 37 Zans.,_332, 336 ; s. c, 15 Pacif. Rep., 208, (demurrer for inconsistency as a misjoinder entertained). Parr vs. Johnson, 37 Minn., 457 ; s. c, 25 North West. Rep., 176, (motion for new trial). Ross vs. Duffy, 12 N. Y. State Rep., 584, (demurrer for inconsistency not sustain- able). Lansing vs. Parker, 9 Hoiv. Fr., 288, (general denial ; defence that plaintiff committed first assault, and defence that plaintiff was disorderly in defend- ants' inn, and refusing to leave on request, they gently put him out, — not inconsistent ;) [followed in Cohrs vs. Fraser, 5 So. Car., 351 j. McDonald vs. Am. Mort- gage Co., 17 Oreg., 626; s. c, 21 Pacif. Rep., 883, (in- consistency of allegations with general denial ; but not with qualified denial.) Coute vs. Ball, 3 Atk, 496, 499, (denial and allegation of waiver not inconsistent). 2 Chitt. PL, 16 Am. ed., tit. Indemnity. (Denial of receiv- ing and allegation of paying over, not inconsistent.) See also Defining the Issue. * Evans vs. Thomas, 32 Kan., 469, 473. (Allegation of good reason for not performing ; not inconsistent with alle- gation of performance.) Shea vs. Augustine, 14 Kan., 282. (Usury ; payment ; and suretyship and extension of time ■ discharging defend- ant ; — not inconsistent.) Wheaton vs. Nelson, 11 Gray (Mass.), 15. Denial; and plea of delivery of goods in payment and by way of set-off, not inconsistent.) Bierer vs. Fretz, 32 Ka-ns., 329. Payson vs. Macomber. 3 AUen (Mass.), 69. Denial of speaking the defamatory words, and allegation of their ' truth not inconsistent.) Ledbetter vs. Ledbetter. 88 Mo., 60; s. c, 3 West. Jiep., 917. (Ejectment. Denial, coupled with an equitable 384 Abbott's Brief on the Pleadings. Demurrer, [§ 461. defence. Black, J., sa.ys : The defendant in an action of ejectment may plead by way of a general denial and rely upon that as a complete defence. He may also in the same answer plead an equitable defence and rely upon that as an independent defence. But the defend- ant will frame his pleading so as to show that he relies upon both defences. If, in pleading his equity, he un- qualifiedly and absolutely pleads title or right to the possession out of himself and in the plaintiff but for the equities, then we see no reason why the plaintiff' should be required to offer any evidence, especially if he waives damages, rents, and profits. If the defend- ant will make such an absolute admission on the record, it is difficult to see how there can be an accompanying denial of the same matter. Pleadings are expected to tell the truth.) s. p., Otis vs. Boss, 8 How. Fr. {K Y.), 195. (Held, on motion to strike out, — not inconsistent to deny having made the alleged representations ; and also to deny that the alleged representations were false. Shaneland, J., said : " It may be true that the defendant never represented to the plaintiff that he was in good circum- stances at the time of the purchase of the goods, and yet he may in fact have been in good circumstances. It would be exceedingly unjust to drive him to admit either that he made the representations of his wealth or that they were false.") ' See Freeman vs. Frank, 10 Abb. Pr., 370. § 461. Defendant may attach declaration or complaint. — At Common Law,^ on demurrer to a plea (other than in abatement*), a defect in the declaration (or, if the plea is to part of it only, a defect in the part the plea is addressed to^), if it be such as would have sustained a general demurrer,* calls for Judgment against the plain- tiff* (or the condemnation of the part of the declaration addressed by the plea), irrespective of whether the plea is good or not.® But this rule does not avail a defendant who has pleaded to the whole declaration by another plea or de- fence than the one demurred to.'' This principle applies, under the New Procedure,* not § 461.] To Answee; General Principles. 385 ■ only to legal causes of action, but also to equitable causes of action® in the State courts. And it applies to a defective counterclaim as well as to matter merely in defence.^" It is the better opinion that it does not allow a de- fendant who has not demurred" to the complaint to raise any objection other than that the complaint does not state facts sufficient to constitute a cause of action, that the court has not jurisdiction of the subject,^* and that a person not joined is an indispensable party.'^ ' Against application of the rule in equity, see Sperry vs. Miller, 2 Barb. Oh, 632, 635; Lawrence vs. Pool, 2 Sand/., 540 ; contra, see Beard vs. Bowler, 2 Bond, 13 ; Goodyear vs. Toby, 6 Blatchf., 130. See cases collected in 25 Alh. N. C, 224 ' State vs. Hamlin, 47 Conn., 95, 118. (Criminal case citing civil case. But the court nevertheless considered the case as if the rule did apply.) Shaw vs. Dutcher, 19 Wend., 216, 222. Indiana, Bloomington, etc., E. Co. vs. Foster (Ind., 1886), 5 West Bep., 659 (under Code). = Smith vs. Lloyd, 16 Oratt., 295, 309. (Moncure, J., says : " The principle is that a demurrer by the plaintiff to the defendant's plea cannot operate as a demurrer by the defendant to the plaintiff's declaration to any greater or less extent than the plea of the defendant was pleaded to the declaration.") [^Compare Ward vs. Sackrider, 3 Cai., 263 ; United States vs. White, 2 Hill, 59, 61 (Holding that if there was one good count, and the plea was to the whole, defendant could not prevail by pointing out a bad count).] *Tubbs vs. Caswell, 8 Wend. {N. Y.), 130 {Ot. of Errors). United States vs. Linn, 1 How. ( U. S.), 104 ; s. c, 11 Law. ed., 64. ' Ensign Co. vs. Carroll, 30 W. Va., 532, 538 ; s. c, 4 South East Hep., 782. 'The practice is, where a sufficient objection is raised under this rule, not to examine the sufficiency of the pleading demurred to. ' Morey vs. Ford, 32 Hun, 446. (Under the Code, following commou'-law authorities ; and holding that the rule * does not allow objection to an allegation which has been admitted.) 386 Abbott's Bkief on the Pleadings. Dbmuekbr, [§ 462. ' Meredith vs. Scallion, 51 Art, 361 ; 3 L. B. A., 812 ; s. c, 11 South West Bep., 516. (Ejectment.) Donell vs. Hannah, 80 I-nd., 497. (A bad answer is good enough for a bad complaint, and a demurrer to the answer should be oTerruled,) ° People vs. Booth, 32 N. Y., 897. " Lawe vs. Hyde, 39 Wise, 345. " According to People ex rel. Weber vs. Spring Valley, 129 lU., 169 ; s. c, 21 North East., 843, a previous decision overruling a demurrer to the complaint does not con- clude the Court from holding the complaint bad, on the hearing of a subsequent demurrer to a later plead- ing in the same series. Contra, Parsons vs. Hayes, N. Y. Daily Beg., Dec. 14, 1882. Aenoux, J., said : " This being an equity action, and the complaint having been substantially held good on a former demurrer, the sufficiency of the complaint is on this hearing res adjudicata, and the answers should be liberally construed to permit the hearing of all the questions between the parties." " Brand vs. Storm, N. Y. Daily Beg., Jan. 31, 1886. (De- murrer to counterclaim. The Court say : " Plaintiff should not be defeated on his demurrer to the answer because his complaint was demurrable for improper joinder of causes of action. That ground of demurrer has been waived by defendants [i.e., by answering], and cannot be relied upon for any purpose now.") iContra, Menifee vs. Clark, 35 Ind., 304. (The Court say : "Though the objection to the answer is waived unless the objection be taken by demurrer, it is not required that the demurrer which is to raise the ques- tion must be addressed to the answer and be filed by the plaintiff. If the demurrer be interposed at a later stage of the pleading the objection is taken by de- murrer, just as effectually as if it was addressed to the answer and put on file by the plaintiff.")] " This, like the two preceding objections, may be taken without demurring. See § 445. In Smith vs. State, 66 Md., 215 ; s. c, 7 Atl. Bep., 49, the appellate court held it error not to have entertained an objection to misjoinder of causes of action. § 462. — aider of complaint on demurrer to answer. — A defect in the complaint objected to by defendant on the hearing of a demurrer to his answer, is cured by an alle- §463.] To Answer. Denials. 387 gation or express admission in the defence demurred to, supplying the defect in the complaint' ; but is not cured by an allegation or express admission in a separate defence.^ ' Vernam vs. Smith, 15 N. Y., 327, 331. (Denio, O.J.) s. p.. White vs. Joy, 13 N. Y., 83, rev'g 11 How. Pr., 36. (Here on demurrer to reply, the answer replied to was held to cure a defect in the complaint.) • Ayres vs. Covill, 18 Barb. {N. Y), 260. 2. Demtjeeer to Denials (including facts provable UNDER GENERAL ISSUe). § 463. Mere denials, § 465. Facts provable under the gen- 464. Statutes requiring sworn de- eral issue, nial. § 463. Mere denials. — In New York and Wisconsiir it is held that a mere denial is not demurrable.* Other- •wise in some other States.^ 'Ketcham vs. Zerega, 1 E. D. Smith, 558; Nichols vs. Lumpkin, 51 Super. Ct. ( 3 Story, 54 ; Salisbury vs. Hatcher, 2 Yon. dt OoU., 54; s. c, 12 L. J. {N. S.), Ck, 68; s. c, 6 Jur., 1051 ; Bardwell vs. Ames, 22 Pick. (Mass.), 375 ; Saun- ders vs. Frost, 5 id., 275 ; Williams vs. Birbeck, Hojfm. {N. Y.), 359 ; Candler vs. Pettit, 1 Paige {N. Y.), 168.] ' Jenkins vs. International Bank of Chicago, 127 U. S., 484 ; s. c, 32 Law. Ed., 189. (Foreclosure. Pending the suit plaintiff set up by supplemental bill a judgment he had recovered meanwhile. Held, proper. Strictly new mat- ter arising after the filing of a bill, properly set up by way of supplemental bill, in support of the relief origin- ally prayed for, cannot be considered as a new cause of action. The Statute of Limitations has no application to such supplemental bill.) s. p., Cohn vs. Husson, 5 JV. Y. Civ. Pro. B., 324. (Action on note. Answer that defendant had given a renewal note which was outstanding. Supplemental complaint stating that the renewal note was not paid, and was in plaintiff's possession, hdd proper, and plaintiff might return it at the trial.) [All these questions now usually come up on motion for leave.] § 49V. Ou/rimg defect of parties. — To cure a defect of parties, the plaintiff may be allowed to set up by supple- mental complaint a fact which has occurred since the commencement of the action and which dispenses with the neces^ty of joining the absent party. Nolan vs. Command, 11 N. Y. Oiv. Pro. B., 295. (Parti- tion by alien, omitting to join the State. Held, that the filing of a declaration under the statute, since the com- mencement of the action, which would prevent the State from claiming an escheat, might be so set up.) § 500.] Dbmurrek to Supplemental Pleadings. 413 § 498. Facts merely additional. — A supplemental com- plaint is not demurrable for insufficiency, if it simply alleges facts whicli occurred since the commencement of the action, and which it is necessary to allege to con- tinue the action by, or against, one not originally a party. Simmons vs. Lindley, 108 Ind., 297 ; s. c, 9 North East. Rep., 360 ; 6 West. Eep., 581 (ejectment) ; Peters m. Banta, 120 Ind. 416 ; s. ' c, 22 JVorth East. Hep., 95 ; Frericks vs. Coster, 22 Fed. Rep. 637 ; s. c, 17 Reporter, 168 (U. S. Oirc. Ct.); Spier vs. Eobinson, 9 Row. Pr. {N. Y.), 325, 329 (specific performance). s. P., American Life Ins. & Trust Co. vs. Sackett, 1 Barb. Ch. {N. Y.), 585. (Holding that where the only allega- tions of a supplemental bill are those necessary to con- tinue the action by or against one succeeding to the interest of an original party, the answer thereto can only put in issue those allegations, or allege matter of defence which has occurred since the suit was com- menced.) § 499. Unnecessary rehearsal of original. — A supple- mental bill, which unnecessarily sets forth at length allegations of the original bill, is not demurrable for in- sufficiency, merely because of the insufficiency of the allegations thus rehearsed, if, as a whole, it is sufficient. Johnson vs. Snyder, 7 How. Pr. {N. Y.), 395. 2. To Supplemental Answer. § 500. Demurrer lies. — Under the New Procedure a supplemental answer which does not state facts sufficient to constitute a defence in whole or in part, is demurrable. Goddard v. Benson, 15 Ahh. Pr. (N. Y.), 191. (Where the Code allows a supplemental answer, it necessarily allows what is incident to such a pleading, the right to demur to it. This was the rule before the code, where a plea was put in puis darrein. Citing Abbot vs. Eugerly. Freem. 252.) 414 Abbott's Brief ok the Pleadii^gs. Demurrer, [§ 503. s. p., Lee vs. Dozier, 40 Miss., 477 ; Swan vs. Dent, 2 Md. Ch. Ill (on exceptions). § 502. Defence arising after suit, in legal action. — In an action of a legal nature, the rights of the parties must be detennined as they existed at the commencement of the action, except so far as the situation has since been changed unfavorably to the plaintiff's claim, either by his own act or by operation of law.^ [The reason is that in legal actions the statute gives costs ; and as they ought not to be charged on a plaintiff who had good reason to sue, defendant ought to get leave, and then the court can impose terms.] Hence (with those exceptions) an answer which sets up in defence any essential fact that did not occur till after suit brought, is bad in an action of a legal nature, even in those jurisdictions where equitable defences may be pleaded.^ But if plaintiff's own voluntary act pending the suit has impaired or discharged his cause of action, as by a compromise or release,^ or has given defendant a counter- claim arising out of the same subject-matter,* or if the defendant has been exonerated by operation of law, as by a discharge in bankruptcy or an adjudication in another suit,^ defendant may set up the fact in his answer, unless it occurred after issue joined, in which case it can only be set up by supplemental answer.® ' "Wisner vs. Ocumpaugh, 71 N. Y. 113. (The Court say : " The rights of the parties must be determined at the commencement of the action. Although equitable de- fence is allowable to a legal action, it does not, when interposed, change the character of the action, nor authorize transactions subsequent to the commence- ment of the action to be shown, to affect the rights of the parties, as they existed when it commenced." 'Id. ' Willis vs. Chipp, 9 How. Pr. {N. Y.), 588. (Motion for judg- § 503.] Demuebek to Supplemental Pleadings. ' 415 ment for frivolousness denied because defendant liad a right to plead settlement with plaintiff after suit brought.) Lansing vs. Ensign, 62 id. 363. (Settlement, payment and waiver, pending suit, held not immaterial, and motion for judgment on the pleadings denied.) Otherwise of payment to plaintiff's, creditor by defendant, even though pursuant to and as a performance of the contract sued on. Moffatt vs. Henderson, 48 N. Y. Super, a. {J. & S.), 449. The fact that plaintiff's right of action was divested after commencement of the action, by his bankruptcy, is not an available defence, if before it is pleaded he re-ac- quires it by purchase from his assignee. Gear vs. Fitch, 16 Pat. Off. Gaz., 1231. * Kelley vs. Dee, 2 N. Y. Supm. Ct. {T. & C), 286. (Action for work and labor. When the parties were about to go before the referee they came to a settlement, which plaintiff afterwards refused to carry out, though de- fendant tendered performance. After the hearing was begun, defendant, by leave, filed a supplemental an- swer setting up the settlement of the action and ask- ing specific performance. Held, that the agreement, accompanied by tender of performance, constituted a good cause of action in equity for specific performance, and, under the Code, defendant is entitled to set it up as a defence. Judgment for plaintiff therefore reversed.) s. p., Cass vs. Higenbotam, 100 N. T., 248. ■• s. p., Yeaton' vs. Lynn, 5 Pet. ( U. 8.), 224, 231. (Maeshall, Ch. J. Common-law action by executor. Bevocation of letters pending suit might be pleaded puis darrein continuance.) The statement that the matter is pleaded " to the further maintenance of the action" is matter of form rather than of substance. Carpenter vs. Bell, 19 Abb. Pr. {N. Y.), 258, 263. Boswobth, Ch. J. ' Matthews vs. Chicopee Mfg. Co., 3 BoU. {N. Y.), 711. (Ee- lease after issue in an action against joint tort feasors should be set up by supplemental answer. Denying motion to amend answer, on the ground that it should have been for leave to serve supplemental answer.) § 502. Defence arising after suit, in equitable action. An action of an equitable nature cannot be maintained, any more than a legal action, unless the cause of action existed at the commencement of the suit; but in an 416 Abbott's Bribe on the Pleadings. Demuerer. [§ 502. action of an equitable nature, any matter of defence, though arising after suit brought, may be pleaded in the answer,^- unless the time for answering has passed, in which case it may, by leave, be pleaded in a supplemental answer.^ [The reason is that here the costs are discretionary ; and if defendant prevails, liotwithstanding there was good cause to sue, the Court can charge him with costs.] ' Lyons vs. Brooks, 2 Edw. Oh. {JV. Y.), 110. (Agreement, and payment made, subsequent to the filing of the bill.) Peck vs. Goodberlet, 109 N. Y., 180, 189 ; s. c, 15 N. Y. State Rep., 182. (Holding that the rule iu actions at law, that the right to judgment depends on facts exist- ing at the commencement of the action, is not the rule in actions in equity.) 8. P., Trustees of Columbia Col. vs. Thacher, 87 JST. Y., 311. ' Wilbur vs. Gold & Stock Tel. Co., 62 N. Y. Super. Ct. {J. (& S.), 189. (Specific performance. Held, error to refuse to allow defendants to serve a supplemental answer set- ting up facts occurring after the commencement of the action, which show that they are unable to specifically perform.) Medbury vs. Swan, 46 N. Y, 202. (The Court say that " generally a defendant has a right to set up, by a sup- plemental answer, matter of defence which has occurred or come to his knowledge subsequently to the putting in of his first answer, but that he must apply to the Court, by motion, for leave so to do, so that the opposite party may be heard, and the Court may determine whether there has been inexcusable laches, or whether any of the reasons appear which are recognized as giv- ing authority for denying the exercise of the . general right in the particular instance ; and the Court must grant leave, unless the motion papers show a case in which the Court may exercise a discretion as to granting or withholding leave.") Fox vs. Kimberly, 27 Conn., 307, 315. (Dictum that there- fore a bill in equity to enjoin prosecution after settle- ment is not sustainable.) [^Compare Giles vs. Austin, 62 N. Y., 486 ; affg 38 N. Y. Super. Ct. {J. & S.), "215, holding that defendant might resort to a new action, because in that case leave to serve a supplemental answer would have been discretionary, and not a matter of right,] §504. J Dbmurebe to Supplemental Pleadings. 417 § 503. Right of new party to answer. — One who ought to have been made an original party may, when brought in by amendment or supplemental complaint, set up any defence which he might have set up had he origi- nally been made a party at the time the action was com- menced, as well as any which has since arisen.^ But a party who is made such pending the suit, as representing the interest of one who was an original party, has no other right of defence than the one for whom he substituted, and is bound by the pleadings of his predecessor, except as may be otherwise expressly permitted by the Court.^ ' Campbell vs. Bowne, 5 Paige {N. Y.), 34 ; Shaw vs. Cock, 78 N. Y., 194; Lawrence vs. Ballou, 50 CoH., 258; Newman vs. Marvin, 12 Hun {N. Y.), 236. (Limitations.) ' Forbes vs. Waller, 25 N. Y., 430, 435 ; Fretz vs. Stover, 22 Wall. {U. 8.), 198. The service of a supplemental complaint is not the com- mencement of a new action, but is only a continuance of the existing action, and under the new procedure, whicli requires a continuance on motion to be sought within a year, and which also allows the living party to require a prompt continuance by moving for it within a time therefor limited, a defendant on whom a supplemental complaint by an executor or administrator is served, cannot, at least in an action of a legal nature, plead the statute of limitations, unless it had run before the action was originally commenced. The fact that the statute time has elapsed since the actipn was commenced, is an objection to the continuance available only on the motion to permit or require the supplemental complaint to be made. Evans vs. Cleveland, 72 N. Y., 486 ; rev'g 12 Hun, 140. § 504. Leame to plead need not he alleged. — A plea or answer, duly interposed before issue otherwise joined, need not allege leave of court, although the fact pleaded occurred after the suit brought. Whiting vs. Burger (78 Me., 287), 4 Atl. Bep., 694, 696. 418 Abbott's Beief on the Pleadings. Dbmubeee. [§ 505. § 505. Demand of relief. — Under the Code of Pro- cedure, an answer setting up payment after suit brought is not fatally defective because it demands that the com- plaint be dismissed, and judgment granted for costs, in- stead of praying Judgment whether plaintiff should further maintain his action, as under the old practice. No formal conclusion is required, and no judgment or relief is required to be prayed for, except when defendant asks affirmative relief. Bendit m. Annesley, 42 Barb. (N. Y.), 192 ; s. a, 27 How. Pr. {N. T.), 184. s. p., Carpenter vs. Bell, 19 Abb. Pr. {N. Y.), 258, 263. ISSUES OF FACT. I.— GENERAL RULES FOR DEFINING THE LIMITS OF THE ISSUE. [To avoid repetition I here state together those general rules for deciding a controversy as to whether a matter is in issue or not, which are important, in determining the mode and method of trial, in the reception of evidence, and on motions to dismiss or nonsuit, and requests for instructions or findings. But the progress of the trial modifies the application of such rules at those successive stages, and the modifications peculiar to each stage are noticed in their appro- priate places under subsequent divisions.] 1. Duty of the Coukt, §§ 506, 507. 8. Admissions, and the smFTiNG of 2. What system of law applies, burden of proof by unteri- §§ 508-510. FIED DENIAL, §§ 615-636. 3. What pleadings constitute the 9. Statutory traverse of answers ISSUE, §§ 511-532. AND REPLIES, §§ 637-641. 4. What kind of allegations ten- 10. Inconsistency in pleading, §§ DER an issue, §§ 533-549. 642-649. 5. Express admissions, §§ 550-560. 11. Aider, §§ 650-656. 6. Admissions by not denying, §§ 12. Departure, §§ 657, 658. 561-570. 13. Waiver by pleading or not 7. Form of denial; and admissions pleading, §§ 659-661. BY bad denial, §§ 571-614. 14. Issues between co-defendants, §§ 663-670. 1. Duty of the Court. § 506. Limits of tiie issue to be 1 507. Refusal to try immaterial decided by the Court. issue. § 506. Idmits of the issue to be decided by the Court. — It is the duty of the Court, whenever necessary for deter- mining an offer, motion, or objection by either party, as 419 430 Abbott's Beief on Pleadings. Issues of I'act. [§ 507. to the proper course of the trial, to ascertain and define, so far as that necessity requires, what allegations are and what are not material, and what is and what is not in issue upon the pleadings. Lax rvk. — Under an ill-defined issue the Court should, in case of doubt, receive offered evidence, subject to its being afterwards stricken out, or the jury instructed to disregard it if justice so require it. Harris vs. Holmes, 30 Vt., 352, 355. (Assumpsit on an account for advertising. The Court say : " We have to allow a wide range in the admissibility of evidence, in the trial of cases where the issue is not defined, and where, of course, at the time, it is often impossible to anticipate what questions may arise in the course of the trial. The rule in such cases is that the testimony should be received, if it is competent evidence in any view of the case which may be thereafter taken. And a new trial is not to be granted on account of the ad^ mission of evidence which might have become im- portant in any supposable state of the other evidence, or upon. any question which might probably thereafter arise, unless it appear that it was improperly applied in the decision of the case," etc. " But the useful and practical method, and the one now more commonly practised upon, is to reserve the questions upon the application of the evidence to the determination of the case." Strict ride. — The better rule is that in such case the Court should determine the question absolutely in the first instance, according to a reasonable construction of the pleadings ; for the party whose evidence is excluded may immediately apply to amend. Estate of Brooks, 54 CaL, 471. See also Abb. Civ. Jury Brief, 57-59 ; 8 Ahb. N. T. Dig., 2d vol. of Supp., 681. § 507. Refusal to t/ry immaterial issue. — If an issue raised by the pleading is wholly immaterial to the cause of action or defence, the Court, even of its own motion, may refuse to try it. Coming vs. Corning, 6 N. Y., 97. (Assault and battery. Eeply to allegations in answer relied on as provocation.) N. T. Oode Civ. Pro., % 975. § 509.] What Law Applies. 421 2. What System op Law Applies. § 508. Cause removed. § 510. Some Equity Rules same as at 509. State practice in U. S. Court. Law. § 508. Caxise removed. — If the issue has been prop- erly joined in the Court where the action is commenced, its removal to another Court of the same State for trial does not necessarily impair the issue by reason of more stringent rules of pleading applicable in the latter Court.' It is the better opinion that the latter Court has power to amend the issues, as if the cause originated be- fore it.^ If not, the objection is waived by going to trial on the amended issue.* ' Eichardson vs. Cato, 9 Humph. (Tenn.), 464. (Sworn de- nial of written instrument.) [Otherwise on removal of an equity cause to the Federal court.] ' See Lalleman vs. Fere, 18 Ahb. ]V. C, 56. ' First Natl. Bk. of Madison vs. Carson (iTeft., 1890), 46 North West. Bep., il&. § 509. State Practice in TJ. 8. Court. — The State prac- tice as to what constitutes an issue, and whether an alle- gation or admission in one cause of action or defence aids or mars matter in another cause of action or defence, ap- plies in the United States Circuit and District Court sit- ting in the same State,' in civil causes other than in equity admiralty,^ and in, rem for forfeiture.* Exceptions to this rule are recognized in respect to waiver of a defence in abatement by a defence on the merits,* and allegations of jurisdictional facts peculiar to Federal courts.^ ' Northern Pacif. E. vs. Paine, 119 U. S., 561. (Aider, etcv) Iron Mountain Ey. vs. Knight, 122 U. S., 79, 96. (Stat- utes requiring sworn denials.) 422 Abbott's Brief ok Pleadings. Issues of Fact. [§ 510, s. p., Bell vs. Mayor, etc. of Vicksburg, 23 ^ow. {U. S.), 443. As to rules of court see dictum in Osborne vs. City of Detroit, 28 Fed. Sep., 385, 387. ' U. S. E. 8., § 914. ' Coffey vs. United States, 117 U. 8., 233. ' See §§659-661, Waiver by Pleading. ' See §§ 571-614, Denials. § 510. Some Equity Rules same as at Law. — The rules, that the burden of proof rests upon the party who holds the affirmative of the proposition to be proved, that the evidence must be limited to the issues raised by the pleadings, and as to the effect of a variance between the proof and allegations, are the same in equity as in suits at common law. jMrich Eq. PI. & Pr., 169. As to these rules see Ciml Jwry Brief, pp., 84, 85. 3. What Pleadings Constitute the Issue. § 511. Question as to service. § 523. Substituted party. 513. Question as to filing. 524. Stipulations, as to character of 513. Withdrawal of part of plead- pleading. ing. 525. — for trial on the merits. 514. Amended supersedes original. 526. Stipulation modifying the 515. — unless both are answered as issue. one. 527. Stipulation repugnant to the 516. Omission to designate. pleading. 517. Omission to amend responsive 528. Power of counsel. pleading. 529. Executory stipulation for 518. Delay to respond. amendment. 519. Demurrer overruled. 530. Amending to get rid of con- 530. Demurrer sustained. cession. 521. Judgment on plea in abate- 531. Denial lets in different version, ment. 533. Striking out. 533. Substitute for lost pleading. § 511. Question as to service. — Where the copy of pleadings furnished to the Court at the trial ^ contains a pleading against a party who denies that it was served, it is within the discretion of the Court whether to receive § 514:.J . What Pleadings Constitute the Issue. 433'' proof that it was not served, or to leave the party to Ms remedy by motion after trial,^ ' N. Y. Gen. Ruks, No. 20, requires them to be marked showing what is in issue. ' MUler vs. Barber, 66 N. T., 558, 564, affg 4 Hun, 802. § 512. Question as to filing. — Unless a statute or rule of Court otherwise provides,^ a pleading duly delivered to the clerk at his office with request to file, the fee if any being paid or tendered, is deemed filed, notwithstanding the clerk's neglect to mark or place it. Love vs. Mclntyre, 3 Tex., 10. (Compare, however, as to file-marking, nunc pro tunc, 1 Ahh. NewPr. and F., 91.) § 513. Withdrawal of part of pleading. — ;A count, cause of action, or defence, abandoned or withdrawn, re- mains a part of the record, so far as necessary for the purpose of express reference contained in other parts of the same pleading. Jones vs. Vanzandt ( U. 8. Cir. Ot.), 5 McLean, 214. (Count in declaration at common law.) [For other cases see Fogg vs. Price, 145 Mass.,, 518 ; s. c, 14 North Bast. Hep., 741 ; Young vs. Martin, 8 Wall., 354; Brown vs. Saratoga E. Co., 18 N. Y., 495.] § 514. Amended supersedes original. — An amended pleading, when it appears to be the entire pleading, not a mere addition to the original, supersedes the original for the purpose of defining the issues. Alexandria Canal Co. vs. Swann, 5 How. U. 8., 83, 88. (Amended declaration, substituting a new count for the original one ; and a new pleading interposed by defend- ant containing only part of the pleas he interposed to the original declaration.) Hunter vs. Pfeiffer, 108 Ind., 197 ; s. c, 6 West. Rep., 403. (Holding that if subsequent to a decision on demurrer to the original, it will be deemed filed as an amendment by leave of court.) Hans com vs. Herrick, 21 Minn., 9. 434 Abbott's Brief on Pleadikgs. Issues of Fact. [§ 515. s. p., Hubbard vs. Quisenberry, 32 Mo. App., 459. Sherwood vs. Hauser, 94 N.. Y., 626. (The original com- plaint is superseded as to amount of quantum meruit therein alleged, by an amended complaint increasing the amount.) [s. p., Embry vs. Palmer, 107 U. S., 3.] Fry i)s. Bennett, 3 Bosw., 200, 283 ; aff'd in 28 N. T., 324. Kanouse vs. Martin, 3 Sandf., 593 ; s. c, 8 N. Y. Leg. Obs., 305. (At common law.) [Compare Stevens vs. Parker, 7 Allen (Mass.), 361. (New declaration ; new answer reasserting and adding to original answer ; but no new replication.)] Hulbert vs. Comstock, 11 Gray (Mass.), 14. (Serving an amended answer without leave or sanction, held, not to supersede the original, nor to entitle defendant to give evidence under the amendment.) [In N. Y. the practice would usually entitle a plaintiff, in such case, to treat the amended answer as the answer in the cause, or require him to return it promptly as unauthorized.] § 515. — unless both are answered as one. — Where a defendant treats an original and an amended complaint as consolidated, and answers them as such, he cannot, on the trial, object that the amended complaint superseded the original. Kline vs. Corey, 18 Hun {N. Y.), 624. § 516. Omission to designate. — An amended plead- ing does not fail because not so designated upon its face. Hurley vs. Second Building Association, 15 Abb. Pr. ■ {N. Y.), 206, note. 8. p., Hunter vs. Pfei£fer, 108 Ind., 197; s. c, 6 West. Rep., 403. But a defendant who has wrongly entitled his pleading as an answer, instead of a counterclaim or cross-com- plaint, cannot take judgment for want of reply. Gold- man vs. Bashore, 80 Cal., 146 ; s. c, 22 Pacif. Rep., 82, s. p., Harrison vs. McOormick, 69 Cal, 616 ; s. c, 11 Padf. Rep., 456, 458. § 517. Omission to amiend responsive pleading. — If after issue joined, the earlier of the two pleadings which § 519. J What Pleadings Com-stitutb the Issue. 425 form the issue is amended, and tlie parties go to trial without any amendment of the answer or reply which was the responsive pleading, the original answer or reply stands as the answer or reply to the amended pleading ; and a denial in such answer or reply is deemed to put in issue the amended pleading ; except so far as the amend- ment has introduced substantially new matter, as distin- guished from merely omitting or merely amplifying what was alleged in the original.^ If substantially new matter has been introduced, of a nature to call for an answer or reply, it is not put in issue by the previous answer or reply which was ad- dressed only to the original pleading.^ 'Dreilling vs. First Nat'l B'k, 43 Kans., 197; s. c, 23 Paxiif. Rep., 94. " Eslich vs. Mason City & Ft. Dodge Ey. Co., 75 Iowa, 443. (Action for damages for injury to property: general denial. Petition subsequently amended by an allega- tion that the town in which the railroad was built was incorporated. Held, that it was, if error, harmless to admit parol evidence that the town was incorporated, a fact necessary to plaintiff's recovery. The amend- ment added a material allegation. It was not answered by any subsequent pleading, and therefore was prop- erly to be deemed true, and the fact of incorporation was not in issue. Citing Bev. Code, 2717.) [^Contra by statute in Arizona, Civ. Pro. C, 8, § 95 ; R. S. 1887, IT 743.] § 518. Delay to respond. — If the time to answer or reply to an amended pleading has not expired, suffering the trial to commence on the issue previously raised does not waive the right so to answer or reply. Low vs. Graydon, 14 Ahh. Pr. (N. Y.), 443. [s. p., Ostran- der vs. Conkey, 20 Hun {N. Y.), 421, holding that timely service of amended pleading supersedes adversary's notice of trial.] § 519. Demurrer overruled. — If a demurrer is over- ruled, and the demurrant serves an answer or reply to the pleading to which the demurrer was addressed, and 426 Abbott's Brief on PLSADiiirGS. Issues oe Fact.' [§ 519. goes to trial, the demurrer is no longer available to his adversary as an admission of the facts alleged.* Where there are several causes of action in the same complaint, or several defences in the same answer, a de- murrer to one, overruled and not withdrawn, is not an admission of allegations in the part demurred to which can avail the party on the trial of the issues of fact aris- ing on another cause of action or defence than that de- murred to.^ Where there are several successive pleadings, — as a reply to an answer, — and a demurrer to the last of the series is overruled, if the party does not withdraw the demurrer, but goes to trial on the issue raised by the earlier pleadings in the series, he is concluded on a trial of any issue raised in that particular series by the ad- mission constituted by his demurrer.^ [But compare § , Eeception op Evidence.] ' Dickey vs. Malechi, 6 Mo., Ill ; s. c, 34 Am. Dec., 130. (Holding that going to trial on the issue of fact is an implied withdrawal of the demurrer.) [s. p., Towns- end vs. Jemison 7 How. (U. 8.), 706.] Marie vs. Garrison, 13 Abh. N. C. {JSf. Y.), 215, 325 (Prof. DwiGHT as Eeferee). Rice vs. Eice, 13 Or., 337 ; s. c, 10 Facif. Hep. 495. (Lord, J., says : " When allegations in a pleading are admit- ted for the purpose of a demurrer, they are admitted for that purpose only, and should not be commented upon by the Court as if they were de/acto true." Citing Day vs. Brownrigp, 10 Oh. Div., 294. " It is a pleading by which one of the parties, in effect, says that the facts stated by the adverse party in his pleading, even as- suming them to be true, do not sustain the contention based on them, or, in a word, do not show a good cause of action or defence. This is not admitting the facts charged as de facto true. It is simply admitting the facts for the sole purpose of presenting their sufficiency to the Court for determination ; or equivalent to saying : ' If the facts be so, the defendant is not bound to an- swer.' ") 8. P., Tomkins vs. Ashby, Moody & M., 32 (Equity) ; Pease vs. Phelps, 10 Conn., 62 (Common Law). § 520.] What Pleadings Constitute the Issue. 427 Wheelock vs. Lee, 5 Abb. N. C, 72 ; s. c, less fully, 74 N. Y., 495. s. p., Teal vs. Walker, 111 U. 8., 242. Fort Dearborn Lodge vs. Klein, 115 lU., Ill, 2 West. Bep., 33. (Under Illinois practice by which the Court may at any time set aside its order on demurrer, the trial judge may do so.) • ' Dictum in Cutler vs. Wright, 22 N. T., 4tl2. To same effect, 1 Ghitt. P?., 694 ; and see Montgomery m. Eichardson, 5 G. d P., 247 ; Firmin vs. Crucifix, id., 98 ; Stinson vs. Gardiner, 33 Maine, 94. 'Cutler vs. Wright, 22 N. Y., 4:12. _ (Here, to a defence of the statute of limitations, plaintiff replied successive absences of defendant from the State ; and defendant's demurrer to the reply was overruled, with liberty to withdraw it upon terms, but he went to trial without complying. Held, that the reply was admitted, and no evidence was required of the facts therein stated.) [According to 1 Ban. Ch. Pr., 592, a demurrer is not withdrawn by merely procuring an order for withdrawal, but must be actually taken from the file. Under our practice this may be ordered at any time.] In McKinzie vs. Mathews, 59 Mo., 99, Napton, J., says : " A demurrer admits facts well pleaded, but only for the purpose of deciding the question raised by it ; the statements in the petition demurred to are no evidence on the question of damages, or on the general issue." § 520. Demurrer sustained. — If a demurrer to one of several causes of actions or defences is sustained, and the parties go to trial without amendment of the pleading, the part condemned on the demurrer is deemed as out of the record, and what it contains cannot be deemed, for the purpose of narrowing the issues, as an admission in favor of the demurrant.^ But judgment entered on the demurrer is conclusive against the demurrant on any issue of fact in the other branch of the pleadings, so far as it involves the same question.^ ' Matthews vs. Beach, 8 N. Y., 173. (So held even of a de- murrer which purported to be addressed to the whole 428 Abbott's Brief on Pleadings. Issues of Fact. [§ 531. answer, but the grounds stated in which, were applic- able only to a single defence.) ' Nispel vs. Laparle, 74 111., 306. (Assumpsit on three notes : Pleas of extension ; also a plea of coverture of wife ■ defendant. To the latter, plaintiff replied that the notes were given for a consideration binding her in virtue of her separate estate, setting forth the facts. Demurrer to replication overruled, and judgment en- tered in favor of plaintiff thereon. Thereafter, on trial of the other issues, hdd, that the facts as to the con- sideration of the notes were conclusively established by the judgment on demurrer, and need not be proved at the trial of the other issues. The Court — Ceaig, J. — say: "No proof was necessary upon this point, other than that appearing upon the record. The facts alleged on the replication . . . were admitted of record by the judgment on demurrer.") s. p., next section. § 521. Judgment on plea in abatement. — A Judgment on the trial of an issue of fact presented by a plea in abatement is, unless opened, conclusive on the subse- quent trial of any other issue of fact in the cause ; and may be relied on without further evidence. Sharon vs'. Hill, 26 Fed. Eep., 337, 386. [As the Court may take notice of its own records, the judgment need, not be formally read in evidence to the jury.] § 522. Substitute for lost pleading. — A pleading sub- stituted by consent for a lost pleading stands as if it had been substituted by order of the court.' If it be subsequently amended in such manner as to present a different case from what it first did, and the original complaint be afterward restored, the amended copy will itself be retained as an amendment of the origi- nal, and be regarded as constituting a new count added to it.* ' Chappell m. Bates, 56 Conn., 568 ; s. c, 16 Atl. Rep., 673. (Holding that under the rule of court allowing a sworn or certified copy to be substituted by order of Court, a copy might be substituted by consent. ) 'Id. § 535.] "What Pleadings Constitute the Issue. 429 § 523. Substitvted pm-Py. — Under the New Proced- ure a pasty brought in by substitution, as having suc- ceeded to the rights of the original party, but not depend- ent for his case on any other new fact, may proceed under the original pleadings without a supplemental pleading, unless otherwise required by the Court.* And a defendant brought in by a supplemental com- plaint after answer, as having succeeded to the rights of the original defendant, does not by denying knowledge, etc., of a fact alleged in the original answer, put such fact in issue.* ' Garvey vs. Owens, 9 N. T. State Rep., 227. ' Forbes vs. Waller, 25 N. Y., 430 ; s. c, as Forbes vs. Walter, 25 How. Pr., 166 ; affg Forbes vs. Logan, 4 Bosw., 475. § 524. Stipulatioiis, as to character of pleading. — A stipulation or consent that a pleading stand for what it in substance is not — as that an answer shall stand for a cross-complaint,* or shall be regarded as a cross libel * — does not make it such. The Court will look to the real character and propriety of the pleading. ' Harrison vs. McCormick, 69 Cal., 616 ; s. c, 11 Pacif. Rep., 456. [Overruling previous decision in 9 Pacif. Rep., 114.] ' Ward vs. Chamberlain, 21 How. ( U. S.), 572. (In admir- alty.) So at common law the parties cannot stipulate to try title to land, in assumpsit, etc. 1 Chitt. PI., 16 Am. ed., 363. [Compare Bradford -ys. Barclay, 42 Ala., 375, holding that a stipulation that defendant may be considered as pleading everything that will be a bar to plaintiff's right to recover, and that plaintiff replies in like man- ner, requires that the Court at the trial should consider as duly interposed every plea and replication that could be available to either of the parties, according to the nature of the case, as shown by the evidence.] § 525.— for trial on the Tiierits. — A stipulation to try the case " on the merits," does not exclude evidence under 430 Abbott's Bbief on Pleadings. Issues of Fact. [§ 536. defences pleaded which go to the existence of the cause of action, — such as the statute of frauds, — but it merely waives objections to matter of form, without relinquish- ing legal rights. Banghart vs. Flummerfelt, 43 N. J. L., 28. " Chancery welcomes parties who submit their controver- sies irrespective of technical questions concerning the form of action or regularity of proceedings ; and it was the clear duty of the trial judge, under the waiver and stipulation made at the outset of the trial, to give all the rights and issues presented full and final deter- mination." Per Peatt, J., in Speir vs. Town of New Utrecht, 49 Hun {N. ¥.), 294; s. c, 2 N. Y. Supp., 426; 17 State Rep., 727; citing Bank of Utica vs. City of Utica, 4 Paige 399 ; Grand in vs. Le Eoy, 2 id., 509. § 526. Stipulation modifying tlie issue. — A stipula- tion that specified evidence may be put in, has the effect of enlarging the issue, as if the necessary allegation to render such evidence available had been added to the pleading. Ackerman vs. Cobb Lime Co., 51 Hun (iT. Y.), 310. (Stipu- lation that either party might read entries from the ac- count of the other, held to entitle defendant to have the case treated as though set-off had been pleaded.) s. p., Whitehouse vs. Halstead, 90 111. 95. (Holding that a party cannot object to the admission of evidence for want of proper pleadings when it is stipulated that the plaintiff may, on the trial, introduce any evidence which he could under pleadings properly pleaded and neces- sary to make out his case, and that the defendant may do likewise as to his defence under the general issue. This is a waiver of all technicalities, and consent to try the case on its merits.) [As to the form and effect of such stipulations, see 2 Abb. New Pr. dc F., 649.] § 527. Stipulation repugnant to the pleading. — A stipulation which will entirely nullify the effect of the' § 529.] Whax Pleadings Constitttte the Issue. 431 pleading will be disregarded as repugnant, if it does not appear to have been intended to have that effect.* If partly repugnant to the pleading, it may be con- strued so as to give it effect in other respects only.* ' Eichards vs. Lake Store, etc., E. Co., 124 /ZZ., 516 ; s. c, 16 North East. Bep., 909 ; s.o.,14 West. Rep., 586. (Defend- ant in a bill in chancery to recover liquidated damages for breach of a contract, filed a demurrer to the bill, for want of equity, and with it a stipulation waiving all objection to the jurisdiction, on the ground of there be- ing a remedy at law. Held, that the stipulation, being repugnant to the demurrer, was properly disregarded, it being evident that there was no intention to waive the demurrer, which was properly sustained.) ' Dale vs. Eoosevelt, 9 Cow. {N. T. Ct. of Err.), 307, 315. (Holding that where a stipulation accompanying a plea which admits allegations of the other party, provides that any matters may be given in evidence with the same effect as if specially pleaded, it is not to be con- strued as modifying the admission, but only as allow- ing evidence of new matter in the nature of an affirma- tive defence.) § 528. Power of coimsel. — The attorney of record has authority to consent to amendment of the pleadings at the trial ; and the counsel who have charge of the trial of the cause have authority to do so, even without the knowledge of the attorney of record. Devlin vs. Mayor, etc., of N. T., 15 ^66. Pr. N. 8. {N. T.), 31. 1 Ahh. New Pr. & F., 450. § 529. Executory stipulation for amendment. — An oral stipulation for the amendment of a pleading does not avail without executing it by an actual change in the pleading,* or by entry in the minutes.* But an equitable estoppel may be made out in sup- port of an unexecuted oral stipulation.* ' Jones vs. Davenport, 45 N. J. Eq. (18 Stew.), 77; 17 AU., 570. 432 Abbott's Brief ok Pleadings. Issues of Fact. [§ 530. ' Common practice. ' 1 Abb. New Pr. <& F., 452. § 530. Amending to get rid of concession. — The Court, and equally a referee/ has power to allow a party to amend at the trial by striking out an allegation or admis- sion, from his pleading, for the purpose of modifying thq issue.* But this should not be done without evidence of mis- take.^ ' Wilcox vs. Onondaga Co. Savings Bank, 40 Hun {N. T.), 297. (Under N. Y. Code Civ. Pro., § 1018.) Price vs. Brown, 112 N. Y., 677 ; s. c, 20 North East, 381, 21 N. Y. State Bep., 573. (Striking out a credit given by mistake.) 'Northern Pacif. E. vs. Paine, 119 U. S., 561. Conway vs. Mayor, etc., of N. Y., 8 Daly, 306. (Action for services of janitor of public building. Complaint alleging that plaintiff, " having claimed that be was ir- regularly employed," presented his demand to the supervisors, etc. Answer setting up counterclaim for what he had received, the counterclaim being founded on the admission. Held, that the Court had still power to allow amendment of the complaint by striking out the admission j and might thereupon order the trial to proceed on the pleading as amended, as defendant did not claim to be surprised or unprepared to proceed, nor ask for time to answer the amended pleading.) Breunich vs. Weselman, 100 N. Y., 609 ; s. c, 22 Weekly Dig., 355. (Holding that an answer which sets up in- consistent defences may be amended even after the trial, by allowing one of them to be stricken out.) ' Miller vs. Moore, 1 E. D. Smith, 739 ; s. c, 12 N. Y. Leg. Obs., 53. (Holding that a sworn pleading should not be allowed to be amended on the trial by striking out an admission, without satisfactory evidence that it was put in under a mistake of facts, or that the party had been deceived or misled. The Court say : " The lan- guage of a pleading is always to be taken most strongly against the pleader ; and if this averment did admit of the equivoque claimed for it by counsel on the argu- ment, the plaintiffs have a right to use it as an admis- sion, if it can bear that interpretation.") § 531.] What Pleadings Constitute the Issue. 433 fBut striking out the allegation or admission for the pur- pose of modifying the issue does not prevent the ad- versary from reading in evidence the allegation or admission as a declaration of the party previously made. Civil Jury Brief, § ; Smith vs. Nimocks, 94 iT. C, 243, and cas. cit. And this is a sufficient reason for not refusing leave to amend merely because of the value of the admission as evidence. The only questions are the good faith of the party asking leave, and the surprise to the other party.] [For the rule that such amendments cannot be allowed to introduce a new cause of action, nor make an entire change of parties on either side, but may change a de- fence, see Eeception of Evidence.] § 531. Denial lets in different version. — A denial lets in evidence of defendant's version of the alleged transac- tion, if it be in any material particular different from that of plaintiff. Marsh vs. Dodge, 66 N. Y., 533, rev'g 4 Eun, 278 ; s. c, 6 Supm. Ct. {F. & C), 568. (Contract pleaded without contemporaneous qualifying contract.) s. P. Alh. Brief on Facts, 104, 127. Koehler vs. Adler, 91 N. Y., 657. (Allegations of per- sonal loan. General denial lets in evidence that the transaction was with defendant as officer and agent of a corporation which was the borrower.) Judge vs. Judge, 14 Civ. Pro. R., 138. (Slander. Error under general denial to limit the testimony of defend- ant's witnesses to a denial of words stated by plaintiff's witnesses. Judgment reversed therefor.) Mississippi Bev. Code (1880), § 1550. " If the defendant shall desire to prove under the general issue in any action any affirmative matter in avoidance which by law may be proved under such plea, he shall give notice thereof in writing annexed to or filed with the plea, otherwise such matter shall not be allowed to be proved at the trial ; and the defendant may in all cases plead the general issue and give written notice therewith of any special matter which he intends to give in evidence in bar of the action, and which he would be otherwise obliged to plead specially ; and when notice shall be given by the defendant, as aforesaid, the plaintiff shall, before the trial of the cause, file a written notice to the defendant of any special matter which he intends to 434 Abbott's Brief on Pleadin'gs. Issues of Fact. [§ 531. giye in evidence, in denial or avoidance of such special matter so given notice of by the defendant, and which it would have been necessary to reply specially, had the defendant's defence been specially pleaded ; and if notice be not given as required by this section, no proof of such matters shall be received on the trial." Eawson vs. Finlay, 27 Mich., 268. (Trespass for a_ tortious entering of certain premises and taking and carrying aveay certain lumber of plaintiff. Held, — the case, involving title to premises, having been sent from justice's to cir- cuit court, — that it was error to exclude evidence going to show defendant's having had exclusive and adverse possession of the premises and that he was the owner. The plea of not guilty, never more comprehensive than our statutory general issue, is construed as a denial of all the material allegations in the declaration, and as sufficient to enable the defendant to contest all such allegations in evidence, and to put the plaintiff upon the proof of all or any of them, and under it a freehold or mere possessive right in the defendant may be given in evidence. Citing Kinnie vs. Owen, 1 Mich., 249 ; Young vs. 'Stephens, 9 Mich., 500 ; Edwards vs. Chand- ler, 14 Mich., 471. Therefore reversed.) University of Des Moines vs. Livingston, 57 Iowa, 307, 312. (Action for subscription : verdict for defendant. Held, that evidence of raising money and of making improve- ments which, if done in consequence of and relying upon the subscription in question, would constitute a consideration to support the subscription, was im- properly excluded. The plaintiff does not seek to avoid the allegation of the answer that the plaintiff had sustained no detriment on account of the subscrip- tion, but to disprove it. No reply was required or proper, to make an issue, to admit the evidence. The allegations of the answer were deemed denied. Citing Cassidy vs. Caton, 47 Iowa, 22. Eeversed.) Iowa Bev. Code {Miller), 1888, § 2704. " Under a denial of an allegation no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegations is bound to prove." Massachusetts Rev. Stats., 1882, c. 167, § 15. " Special pleas ia bar as formerly used, and the general issue in all except real and mixed actions, are abolished, and in place thereof the defendants shall file an answer to the declaration. In real and mixed actions, the defendants may give in evidence under the general issue all matter which might formerly have been pleaded in bar." Indiana (Kv. Pro. Rev. Stats., 1888, § 356 (102). "All §533.] What Allegations Ten-dee an Issue. 435 defences, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially. (66.)" Indiana Civ. Pro. Bev. Stats., 1888, § 377. (127.) " Un- der a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove. (91.)" § 532. St/riMng oiit. — Plaintiff basnet a rigbt to have a sham or irrelevant defence struck out on motion at the trial. Smith vs. Countryman, 30 N. Y., 655, 668. (Affirming judg- ment where such motion was denied ; with dictum that the remedy was by demurrer or motion on notice be- fore *trial.) [But he may move for judgment on the pleadings.] 4. What Kind of AujEaATioNS Tender an Issue. [I have not repeated here the more numerous rules which •will be found under Demubbeb and under Reception of Evi- dence.] [See also §§ 561-570, Admissions by not denying.] § 533. Conclusion of law. § 543. Several grounds for one re- 534. What is a fact, and what aeon- covery. elusion. 544. Ground of recovery or defence 535. Treating insufficient allegations implied but not alleged. as issuable. 545. Motive of pleader cannot 536. Material allegations. countervail pleading. 537. By virtue whereof, "virtute 546. Formal allegations required by cujus." rule of court. 538. Hypothetical allegation. 547. Presumption inconsistent with 539. Allegation of contents of docu- allegations. ment. 548. Inconsistent protestation does 640. Allegation of amount or value. not prejudice. 541. Express admission. 549. Denial of anticipated defence 543. Approximate amount, etc. does not change burden of proof. § 533. Conclusion of law. — ^A denial of allegations which are only legal conclusions, does not raise an issue. 436 Abbott's Beief on Pleadings. Issues oe Fact. [§ 533. Adams vs. Adams, 21 Wall. {U.S.), 185. (Allegation of facts amounting to delivery, and denial only of delivery.) Tyner vs. Hays, 37 Ark, 599. (Under tlie Arkansas statute requiring specific denials, tlie denials must be of allegations of fact, not of propositions of law. " Things to be pleaded, not matters to be argued." Non detinet, therefore bad.) Wells vs. McPike, 21 Gal, 215. (Denial of indebtedness.) Levinson vs. Schwartz, 22 Cal, 229. (An admission^ of indebtedness, though resulting only from a bad denial, raises a presumption of promise to pay ; and a denial of any promise to pay raises no issue.) People vs. Lowden {Cal, 1885), 8 Pacif. Sep., 66. (Denial of illegality.) Curnow vs. Happy Valley, etc., Mining Co., 68 Cal., 262 ; s. c, 9 Pad/. Pep., 149. (Mechanic's lien. Denial that plaintiff has at all complied with the requirements of the provisions of a specified statute relating to such liens, or that he is " entitled to any lien.") Gale vs. James, 11 Colo., 540 ; s. c, 19 Pacif. Pep., 446. (Denial that defendant owes the sum alleged or any sum whatever, on an account or otherwise.) Van Buren vs. 8wan, 4 Allen {Mass.), 380. (Denial of in- debtedness.) Hawes vs. Eyder, 100 Mass., 216. (Denial that plaintiff is the holder of any such note, as he has declared upon, and that he owes the plaintiff the amount thereof or any part thereof. Held, that under this answer, evidence that the plaintiff was not and never was the owner or holder of the note was properly excluded. A mere de- ' nial of a general conclusion of law or fact, or of the leading averment in the declaration, is not sufficient to prevent the defendant's being held to have admitted other specific allegations.) Frasier vs. Williams, 15 Minn., 288. Emery vs. Baltz, 94 N. Y., 408. (Denial of indebtedness.) Fleury vs.. Roget, 5 Sandf. {N. Y.), 646. (Denial that plaintiff was the lawful owner and holder of the note sued on.) Excelsior Savings Bank vs. Campbell, 4 N. Y. Swpni. (T. & C), 549; s. c, 48 Hoio. Pr., 347; aff'd, it seems, m 62 N. Y., 137. (Foreclosure : answer denying that defendants were in default in the payment of interest.) Simpson vs. Prather, 5 Greg., 86. (Denial of indebted- ness to a specified sum.) [Gonfra, Simmons vs. Sisson, 26 JV. Y., 264 (which must be deemed overruled on this point) ; California State TeL Oo. vs. Patterson, 1 Nev., 150.] § 536.] What Allegations Tender an Issue. 437 § 534. What is a foot, and what a conchision. — The same statement may be a fact or a conclusion, according to the context. See note on page 121. Levins vs. Eovegno, 71 Oal., 273 ; Turner vs. White, 73 Cal, 299. (Title, seisin, or ownership.) § 535. TreatiTig insufficient allegations as issuable. — A party who has treated an indefinite or uncertain alle- gation,^ or one which might be deemed a conclusion of law,^ as sufficient by taking issue on it and going to trial, may be held to have waived the objection. ' Seeley vs. Engel, 13 JSf. Y., 542, 548 ; Currie vs. Oowles, 6 Bosw. {If. Y.), 452, 460. (Indefiniteness and uncertainty waived by taking issue as if the pleading were under- stood.) ' Atkins vs. Gladwish, 27 JSTebr., 841 ; s. c. 44 North West Rep., 37. (General allegation of assault. Cobb, J., says: " In many cases the dividing line between the statement of a fact and a conclusion is so obscure as to be difficult to define; and in such cases, in this practical age, and under our liberal system of pleading, a court will gen- erally adopt the construction which the parties them- selves, by their acts, appear to have placed upon such language in a pleading.") s. P., Morrow vs. Cougan, 3 Abb. Pr. {N. T.), 328. (Hold- ing that where plaintiff merely avers that defendant is indebted to plaintiff, instead of setting forth the con- tract on which the indebtedness arises, he should not complain if defendant takes issue upon such indebted- ness.) s. p., Weinhauer vs. Morrison, 49 Hun {N. T.), 498, 500. (Complaint alleging indebtedness, and answer denying it, held an issue; for the answer was as broad as the cause of action alleged.) Clough vs. Clough, 26 JV. H., 24. [Compare Tyner vs. Hays, 37 Ark, 599. (Case of bad denial). The Court, recognizing the waiver, hold that the reception of evidence should be restricted to the simple and obvious meaning.)] § 536. Material allegations. — At Common Law an al- 438 Abbott's Brief ok PLEADiiirGS. Issues of Fact. [§ 537. legation is not issuable unless it , is essential to make out a cause of action. In Equity an allegation is issuable if plaintiff has a right to prove it in order to have all the relief sought to its full extent. In many of the States the statutes declaring that material allegations are ad- mitted by failure to deny, define "material " in the com- mon-law sense.' It is the better opinion that under the New Procedure, where there is no such statutory defini- tion, the equity practice should apply.^ ' In the following States the statutes define a material alle- gation in a pleading as " one essential to the claim of defence, and which could not be stricken from the pleading without leaving it insufficient:" Arlcansas, Mansf. Dig. Stats., 1884 § 5073 ; California, Civ. Pro., Deering's Anno. Code, 1885, § 463 ; Colorado, Civ. Pro., § 72 ; Idaho, Eev. Stats., 1887, § 4218 ; Kansas, Civ. Pro., § 129, Gen. Stats., 1889, § 4212 ; Kentucky, Codes (Carroll), 1888, § 127 (154); Montana, Comp. Stats., 1887, § 110 ; and Nebraska, Comp. Stats. (1887), Code Civ. Pro., § 135. ° This does not include, of course, general statements of the amount of unliquidated damages, as distinguished from specific statements of value, cost, expenditure, and the like, as a basis for such damages. It is a part of the object of the New Procedure to narrow the issues and diminish the labor of the Court, and to require plaintiff to specify the substantive facts of all kinds which he relies on, whether essential to a cause of action or not, if they are only relevant to constitute his cause of action in all its entirety of relief, and to lay out of the issue whatever of these defendant does not deny. For authorities see the §§ below, and Reception of Evidence. [Contra, Wood vs. Steamboat Fleetwood, 19 Mo., 529, 531. (Holding value or amount not admitted ; because " ma- terial,' in the rule as to failure to deny means essential, so that the importance of the allegation shall be brought to the mind of the defendant.)] § 537. By vi/rtue whereof: "virPiite cujus.'''' — If the pleader, after alleging matters of fact, adds " by virtue whereof," then stating a conclusion, the conclusion is not issuable if it is mere matter of law.' It is issuable if it § 538.] "What Allegations Tender an Issue. 439 contains matter of fact, though mixed with matter of law.^ 'Dresser vs. Brooks, 3 Bari. {N. T.), 429, 437. (After al- leging facts as to a discharge, adding " by virtue of the aforesaid discharge the defendant was fully discharged from said," etc., a mere conclusion of law, and not traversable.) s. P., Turner vs. White, 73 Cal., 299. ' Stickle vs. Kichmond, 1 HiU {N. Y.), 11. (After stating a warrant, alleging that an arrest was made by virtue thereof, held, a mixed matter of law and fact, and there- fore traversable.) s. p., 1 Chitt. PI, 16 Am. ed., 642. § 538. Hypothetical allegation. — A good allegation in avoidance, or by way of counterclaim or offset, is not vitiated by being introduced hypothetically in such, manner as not to admit the truth of the matter sought to be met. Bell vs. Brown, 22 Oal, 671. (Denial of plaintiff's title : allegation that if plaintiffs ever had a title, they had abandoned and forfeited it before defendant's entry. Held, error to compel defendants to elect. They had the right to set up both defences in their answer, and support the same by proof.) Vinal vs. Eichardson, 13 Allen {Mass.), 521, 525. (Denial of signing alleged agreement, adding "and that if he ever did sign such a paper, it was without considera- tion," hdd, a good denial of signing, and of considera- tion.) Swett vs. Southworth, 125 Mass., 417. (Answer " that if the plaintiff shall prove the making of the note declared on, or any of the items in the plaintiff's bill of particu- lars, the same have been fully paid," held, a positive allegation of payment. Distinguishing Caverly vs. McOwen, 123 Mass., 574.) ChatfieJd vs. Simonson, 92 JSf. Y., 209. (Plaintiff sued on a contract for services. Defendant pleaded plaintiff's misconduct in bar ; also that if plaintiff established a right to recover, defendant would rely on the same matter as a counterclaim or recoupment. Held, proper. The Court may administer the relief to which the facts 440 Abbott's Brief on Pleadings. Issues of Fact. [§ 539. set forth in a pleading seem to entitle the party, with- out regard to the particular form of relief demanded. The pleading by way of set-off did not amount to a ratification.) Everitt vs. Conklin, 90 N. Y., 645. (Allegation in plain- tiff's complaint, intended to meet and avoid defendant's anticipated version.) Citizens' Bank vs. Closson, 29 Ohio St., 78. (Answer de- nied the making of the note sued on ; and as a second defence, alleged that if the signature to the note was genuine, it was obtained by fraud, and that there was no valid consideration for the note. Held, proper ; and error to compel election.) [For other cases see § , denials.] § 539. Allegation of contents of document. — An allega- tion that a document contained specified statements, is not equivalent to an allegation of their truth. ^ Morris vs. Parker, 3 Johns Ch., 297. (Holding that a de- nial of the instrument was enough, without denying the truth of its contents.) For some exceptions to this rule, where the instrument proceeds from the party denying, or binds him, see § 228. Conversely, a denial of knowledge or information sufSeient to form a belief "as to " a document, is not a denial of an allegation in the complaint of the truth of statements in the document. People vs. Fields, 58 N. Y., 491. § 540. Allegation of a/mount or value. — Under the New Procedure, unless the statute provides otherwise, the following rules should be applied : ^ 1. An allegation of amount or value, affecting only the amount of recovery, as distinguished from a case where the specific amount is essential to make out a cause of action, is not traversable alone, unless it is controverted by an avowedly partial defence, as it may be in some jurisdictions ; ^ and a denial of such an allegation, if there is no further answer, only raises a question on the assess- ment of damages. But a general denial which puts in issue the whole § 540.] Wg:AT Allegations Tendbk as Issue. 441 cause of action entitles the defendant to give evidence controverting tte amount or value, as at Common law and in Equity. 2. An allegation of amount or value which is essential to make out a cause of action or jurisdiction,^ is travers- able, and a denial even with nothing more raises an issue. 3. An allegation of any specific fact, as distinguished from a matter of opinion and other than a statement of unliquidated damages, is (in the absence of statute to the contrary) admitted by failure to deny it, notwithstanding the fact be a matter of amount, value, time or place, pro- vided it only be simply matter of fact, and material in the sense of being the proper subject of proof under the complaint to enable the plaintiff to recover all the relief he seeks.* ' These rules are not to be followed as guides in framing a pleading, without careful consideration of the condi- tion of the question on the decisions in the practitioner's own State, such is the conflict of opinion and the per- sistence of the old common-law rule. ' See § 467, Demueeeb to Answee. ' These exceptions are well recognized in Stuart vs. Binsse, 10 Bosw. {N. T.), 436, 446. * As to the above rules, compare the following authorities, and the following statutes contrary to the text ; and compare those under § 467, etc., Demueeek to Answbb, and see also Eeception oe Evidence. Thew vs. Miller, 73 Iowa, 742 ; s. c, 36 JVorth West, 771. (In conversion, a general denial puts in issue the value of the property at the time of the conversion.) Butcher vs. Bank of Brownsville, 2 Kan., 70, 82. (Action on a judgment. H^ld, not error to enter judgment with- out a jury. This was a suit for a sum certain — a debt eo nomine, and not sounding in damage. These being necessary allegations, are to be taken as true, unless there are "allegations of value or of amount of damage." There being none such in this case, the- petition was to be taken as true, and there was nothing for a jury to try or to do.) 442 Abbott's Brief on- Pleadikgs. Issues of Fact. [§ 540. Douglas vs. Einehart, 5 Kans., 392. (Under Kans. Stat. Civ. Code, § 128.) Skillman vs. Muir, 4 Mete. {Ky.) 282. (Action upon a covenant for Mre and to furnish a slave with winter and . summer clothing and a blanket. Hdd, error to render judgment by default for the $15 which the blanket and clothing were alleged to be worth, without proof of their value. The Code declares that allegations of value or of amount of damage shall not be taken as true by the failure to controvert them. (Sec. 153.) Distinguishing Harris vs. Eay, 15 B. Mon., 628 (suit on physician's ac- count for medical service and medicine), and Francis vs. Francis, 18 B. Mon., 60 (suit on merchant's account for goods sold and delivered, where the Court sustained judgment by default without proof, not in that they al- leged the sums to be due and owing, but that upon the facts stated in each case there was an implied assumpsit to pay the amount claimed by the plaintifi). Citing Snodgrass vs. Broadwell, 2 Litt. {Ky.), 363 ; Jenkins vs. Eichardson, 6 J. J. Mar. {Ky.), 441. Under the Code, what the law implies need not be averred. (Sees. 115, 144.) Citing as reversing judgments by default, with- out proof, Daniel vs. Judy, 14 B. Mon., 393, for value of coal taken by defendant ; Clarke vs. Seaton, 18 B. Ifon., 226, for value of goods — common carrier failed to de- liver as agreed ; Huston vs. Peters & Co., 1 Mete., Ky., 558, for value of cash notes, not assigned as covenanted to be assigned; and Marr's Admr. vs. Prather, 3 Mete. (Ky.), 196, for breach of covenant as in this case. The law does not imply a promise to pay damages which the defendant has covenanted to pay. The value of the blanket and clothing in this case should have been proven. Eeversed.) German- American Bank vs. White, 38 Minn., 471 ; s. c, 38 North West., 361. (In ejectment a general denial puts in issue the allegation of value of rents and profits.) Steele vs. Thayer, S&Minn., 174 ; s. c, 30 North West. Rep., 758. (Use and occupation. The complaint alleged Hhat the worth of the use and occupation was a certain sum ; the answer admitted the worth of the use of the entire premises to be as alleged. — Held, error to ex- clude evidence that defendant used and occupied a part only. The admission will not render defendant liable for more than he used and occupied.) PuUen vs. Wright, 34 Minn., 314 ; s. c, 26 North West. Bep., 394, (A counterclaim, by the buyer, on breach of warranty where the pleader alleges only the diminu- tion in value by reason of the breach, instead of alleg- § 540. j What Aliegations Tbndbk an Issue. 443 ing the sound value, and the actual value with the de- fect, he must prove the sound and the actual value as a basis for damages. The separate allegation of the amount of diminution in value is not admitted by not denying. [Citing Benton vs. Schulte, 31 Minn., 312, 314; s. c, 17 JVorth West. Bep., 621.]) Kansas City Hotel Co. vs. Saner, 65 Mo., 279. (Action on indemnifying bond. Count on a breach alleged that plaintiff had been compelled to pay and had paid $500 for attorney's fees, costs and expenses in defending the subject of the bond. Hdd, there was no error in the finding of the court in the sum of $500 on that count in favor of the plaintiff, for the allegation, being undenied as to the amount paid out for attorney's fees, etc., was properly taken as admitted. There are many cases where allegations of value, amount of damage, etc., are immaterial and need no denial. But the allegation here is that of a specific and material fact, which becomes none the less specific and material because no denial thereof be interposed. Very often, as well under the Code as at the common law, the pleadings may be so shaped as to render that material which otherwise would not be so. This was done in this instance. This point is illustrated in Marshall vs. Thames Fire Ins. Co., 43 Mo., 586. There, in order to a recovery, it need not to have been alleged that the steamer Magnolia was worth "more than all the insurance thereon," but this allegation not being denied was held admitted. Nebraska Comp. Stats. 1887, Code Civ. Pro., § 134. " Every material allegation of the petition not contro- verted by the answer, and every material allegation of new matter in the answer not controverted by the re- ply, shall, for the purpose of the action, be taken as true ; but the allegation of new matter in the reply shall be deemed controverted by the adverse party as upon a direct denial or avoidance. Allegations of value, or of amount of damage, shall not be considered as true by failure to controvert them." White vs. Smith, 46 N._ Y., 418 ; rev'g 1 Zans., 469. (Al- legation that a specified indebtedness on account was incurred, and that a specified balance "remains due after deducting payments,'' without specifying the pay- ments, admits payments to the amount there indicated ; and defendant may insist on the admission without himself admitting the balance, or the items of plaintiff's account.) Darling vs. Brewster, 5 N. Y. Supm. Ct. {T. & C), 670; mere mem. of s. c, 3 Hun, 218. (Action for an account- 444 Abbott's Brief on Pleadings. Issues of fAui. [§ 340. ing and contribution, complaint alleging a specified sum due. Defendant's demurrer was overruled, and he failed to answer. Held, that he thereby admitted that the specified sum was due to the plaintiff ; and the al- lowance of that item by the referee, as proved, was proper. Aff'd in 62 N. Y., 630, without opinion.) S. P., Gregory vs. Wright, 11 Abb. Pr., 417. (Action for price of goods sold ; holding that a denial of the value alleged was a good issue. Followed in N. Y. City Ct., Parker vs. Tillinghast, 1 N. Y. State Hep., 296.) Williams vs. Hayes, 20 JSf. Y., 58. (Plaintiff claimed to be interested as a partner in a contract of the firm, which they were prevented from performing completely, and in a modified contract in extension of the first, which second' contract they performed, and under it were en- titled to a specified sum, and they owed also a certain sum. These allegations of assets and debts were not denied. Held, that the resulting admission fell when the Court found on the evidence that plaintiff was in- terested in only the first contract. The Court say : " The true view of that allegation (of amount of assets and debt) is to regard it as dependent upon the plain- tiffs own averment of the extent of his interest, and that the overthrow of plaintiff 's position on that subject carried with it whatever of admission would have been implied from the unanswered allegation.") New Tort Dry Dock Co. vs. Mcintosh, 5 Hill {N. Y.), 290. (Plea of payment in an action of assumpsit does not ad- mit the whole amount of damages laid in the declara- tion ; and although the defendant proves the payment of a smaller amoimt than that claimed by the plaintiff, if the plaintiff gives no evidence to establish the amount of damages in excess of the payment, the de- iendant will be entitled to a verdict. New trial denied.) Connoss vs. Meir, 2 K D. Smith {N. Y.), 314. (Action for conversion of a watch worth $20. Denial of con- version, but none of value. Held, that although the answer does not deny the averment of value, plaintiff must, notwithstanding, prove the amount of his damages. McKensie vs. Farrell, 4 Bosw. {N. Y.), 192. (Counterclaim for conversion. Held, that value or damage must be proved on an assessment of damages, although alleged and there was no reply. Without such allegation de- fendant is entitled to nominal damages.) Followed in DeGraaf vs. Wyckoff, 13 Daly, 366, 371. (Ac- tion for converting coupons. Hdd, that an allegation that their nominal and actual values respectively were a specified sum each, was not admitted by failure to deny.) § 540. J What ALLSGAxioifs Te2s-dbk an Issue. 445 WandeU vs. Edwards, 25 Hun {N. T.), 498. (Holding that even in actions of tort the question of actual damages is raised by a. general denial, for what injury a plaintiff has received is a part of his proof to be met by counter- proof without any special pleading.) [Followed in Young vs. Johnson, 46 Hun (N. Y.), 164, 168 : s. c, 11 N. Y. State Bep., 590, 593.] Compare Blanchard vs. Tulip, 32 Hun (N. Y.), 688 : s. c, 19 Weekly Dig., 145. [This question was noticed but not determined in Isham vs. Davidson, 52 N. Y., 237, 241.] McKinnon vs. Mcintosh, 98 N. C, 89. (Action for price of goods sold ; denial that value was more than a specified sum. Held, that this raised an issue for the jury.) In several of the States the statute declares that allega- tions of value or of amount of damage shall not be deemed true by a failure to controvert them. Arkansas Mansf. Dig. Stat. 1884, § 5072. Iowa— Rev. Code {Miller), 1888, § 2712. (Toe & Co. vs. Nichols, 51 Iowa, 330; Mcintosh w. Lee, 57 id., 356.) Indiana^ Civ. Pro. Rev. Stats., 1888, § 393 (110). " Allega- tions of value or amount of damage shall not be con- sidered as true by the failure to controvert them ; but in actions upon account, in which an itemized bill of particulars, the correctness of which is duly affirmed or sworn to by the plaintiff, or some one in his behalf, has been filed with the complaint, a default by the de- fendant shall be deemed to admit the correctness of the bill of particulars as sworn or affirmed to, and judg- ment may be rendered thereon without further evidence (74)." Kansas— Civ. Pro., § 128 ; Gen. Stats., 1889, § 4211. Allega- tions of value or of amount of damages shall not be considered as true by failure to controvert them ; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only. Kentucky— Codes {Carroll), 1888, § 126 (153). Among allega- tions which must be proved, though not traversed, are : " 4. Allegations concerning value or amount of damage not accom{)anied by an allegation of an express promise, or by a statement of facts showing an implied promise to pay such value or damage ; such allegations, so accompanied, need not be proved unless traversed." Nebraska, above, p. 443. 446 Abbott's Brief ok Pleadings. Issues of Fact. [§ 541. § 541. Express admission. — An express admission or concession in a pleading is not equivalent to an allegation of tlie fact conceded, in such sense that the pleader can claim the fact to be admitted by his adversary's failure to deny it. Brown vs. Wakefield, 1 Oray {Mass.), 450. [The decision was put, in part at least, on the Mass. rule that only substantive facts are admitted by failure to deny. But it seems a sound general principle ; and clearly must be recognized in respect to verified responsive pleadings, for a specific admission in pleading is not an allegation upon which perjury can be assigned. People vs. Chris- topher, 4 Hun {N. Y.), 805, so holding even though the admission be made by rehearsing the admitted allegation embodied in an affirmative form.] § 542. Approximate amount, etc. — An allegation that an amount was " about a specified sum," is not admitted by failure to deny it. Woodruff vs. Cook, 25 Barb. {N. Y.), 505. (Omission to deny allegation that property was worth "about $130," still leaves defendant at liberty to show true value.) Thompson vs. Lumley, 7 Daly {N. Y.), 14,. (Allegation that plaintiff was compelled to pay " about $700 :" dictwn that such an allegation, though not denied, leaves the burden on the party making it to prove the true amount.) § 543. Several grounds for one recovery. — Where plaintiff's complaint states, as if a single cause of action, several grounds for one recovery, — suoh as a contract in- debtedness with fraud in contracting it,' or an original note with a renewal note therefore,* or an indebtedness with a judgment recovered thereon,* — the question which the plaintiff must prove in order to recover, is a question of interpretation, to be determined in view of the re- quirement that a complaint must fairly indicate to the defendant the claim that he must be prepared to try. In determining this question the following considera- tions are often decisive in practice. §543.] What Allegations Tender an Issue. 447 If one cause of action is formally stated, and that which is peculiar to the other is but incidentally or informally added, the incidental allegations may be dis- regarded as surplusage.* If one is sufficiently and the other insufficiently pleaded, the sufficient one may be regarded as the one which plaintiff must establish in order to prevail.^ If one may be regarded as matter stated by way of avoidance of an anticipated defence, which defendant might have interposed to the other, the latter and not the former will be regarded as the cause of action.^ If either may be regarded simply as evidence, — as in the case of several promises, implied or express, to do sub- stantially the same thing, or several acts or neglects as causes of the same injury, — proof of any one may be treated as competent and sufficient.'' If one merged and extinguished the other as matter of law, the earlier liability may be regarded as properly alleged as matter of inducement, and competent to be proved, and the plaintiff may be held to prove the later and parardount obligation in order to prevail.* If it is doubtful whether the cause of action intended is on contract or in tort, every intendment is in favor of sustaining defendant's claim that plaintiff cannot prevail without proof of the tort." The- fact that plaintiff' has omitted to allege damages as caused by a tort, and that the demand of judgment is appropriate to an action for a money demand on contract, rather than damages as for a tort, indicates that the action is on contract.^" Whether plaintiff should be allowed to amend so as to recover when otherwise he could not, depends on whether defendant shows he has been surprised. ' For illustration compare Peck vs. Eoot, 5 Hun {N. Y.), 547, (followed in Combs vs. Dunn, 56 How. Fr., 169), I with Graves vs. Wait, 59 If. Y., 156. 448 Abbott's Brief on Pleadings. Issues of Fact. [§ 643. ' Winsted Bank vs. Webb, 39 JV. T., 325, ajBf'g 46 Barh., 177. (EecoTery or either indifferently allowable.) [Contra, Williams vs. McAllister, 23 N. Y. Weeldy Dig., 97. (But here it did not appear that .the renewal notes were due before suit brought.)] Erower vs. Eeynolds, 99 N. Y., 245'; s. c, 2\Weekly Dig., 466 ; rev'g 9 Id., 383. (Holding it not improper to al- lege in a complaint the consideration or original indebt- edness by way of inducement, preliminary to the allega- tion of a judgment thereon forming the cause of action, even though such original consideration was merged in the judgment. Dictum by way of reaching the con- clusion that the action was not intended to be on the original consideration, because it was not sufficiently alleged to stand alone as the cause of action.) s. P., Tell vs. Yost, 56 Super Gt. {J. dt S.), 456 ; s. c, 22 State Bep., 415 ; 5 N. T., Supp., 5. Walters vs. Continental Ins. Co., 5 Hun, 343. (Denying motion to compel separate statement of contract and of award thereon as separate causes of action.) Compare Greenfeld vs. Mass. Mut. Life Ins. Co., 47 N. Y. 430, where an incidental allegation of account stated was held not conclusive. Thompson vs. Minford, 11 How. Pr., 273. (Eefusing to set aside amended complaint which added to a cause of action on a note, an allegation that plaintiff had re- covered judgment on it in another State. Mitchell J., said : " Other instances have occurred before this Court, in which they have found it necessary to allow this narrative mode of stating all the facts (not the evidence of facts) in a complaint ; as where the original cause of action was set forth, and also a judgment obtained on it in another State ; and there was reason to appre- hend that the defendant meant, if the statement of the judgment were struck out, to set it up in bar, and if it were left in, and the consideration on which it was founded were struck out, then to plead that the Court in which the judgment was obtained had not obtained any jurisdiction over the person of the defendant ; in such cases the Court has refused to strike out either allegation." * See Conaughty vs. Nichols, 42 N. Y., 83, 87 ; Bedell vs. Carll, 33 id., 581. * Krower vs. Eeynolds {above cited). * Wiegand vs. Sichel, 4 Abb. Ct. App. Dec., 592 ; afTg 34 Barb., 84 ; and see note in 23 Abb. JV. C, 93. ' See for instance Dunning vs. Thomas, 11 How. Pr., 28L 544.] What Allegations Tender an Issue. 449 Holding, in an action for breach of promise of marriage, that successive promises were not several causes of action, but evidence under one.) s. P., Walsh vs. Kattenburgh, 8 Minn., 127. (Several prom- ises to pay.) Wagner vs. Nagel, 33 Minn., 348 ; s. c, 23 North West. Bep., 308. (Allegation of agreed price, and of reason- able value. Motion to compel election denied.) Same effect, Barrett vs. AUer Veneer Seat Co., N. Y. Daily Beg., May 6, 1884. \_ContTa, Gardner vs. Locke, 2 N. Y. Civ. P., 252.] ' See Krower vs. Reynolds {above cited). ' Goodwin vs. Griffis, 88 N. Y, 629, 639, and McDonough vs. Dillingham, 43 Hun, 493, 496. '» Hoboken Beef Co. vs. Loeffel, 23 Abb. N. C, 93, with note, McDonough vs. Dillingham, 43 Hun, 493, 497. § 544. Ground of recovery or defence implied lut not alleged. — A fact not alleged is not available as of the substance of the issue merely because another fact which necessarily implies its existence is alleged. It cannot be so deemed if the facts alleged do not suffice to give the adverse party fair notice that those implied v^^ould be relied on by the pleader. Thus an answer by the defendant in a creditor's suit alleging a discharge in bankruptcy, does not let in evidence that an assignee had been appointed, so as to divest the creditor of his right to sue, and vest it in the assignee. Dewey vs. Moyer, 72 N. Y., 70, 77 ; aff'g 9 Hun, 473, and aff'd in turn in 103 U. 8., 301, 304, approving this point. Eael, J., in the N. Y. Court said : " It may be that the necessary inference from the answer as to the discharge is, that an assignee had been appointed. The fault with the answer, however, is that this matter is not set up as a defense. There is no notice that the defend- ants intended to use it as a defence. The Court might take notice that the fact existed, but it could not fail also to take notice that the defendants did not rely upon it for a defence." iCompa^e § 56, etc., (what is sufficient on demurrer), and § 32, etc., (what is admitted by demurrer).] 450 Abbott's Brief on Pleadings. Issues of Pact. [§ 545, § 545. Motive of pleader cannot countervail pleading. — If an allegation or denial is properly framed to raise an issue, it must be regarded as effectual for that purpose, notwithstanding indications that the pleader had no intention of contesting the point.^ On the other hand, if an allegation or denial in a pleading, fairly construed, is not such as to bring the fact in issue, it is not to be treated as having that effect merely because the adverse party knew that the point was in controversy, and. might have expected that it would be insisted upon it at the trial.^ ' Youngs vs. Kent, 46 N. Y., 672 ; rev'g 2 Sweeny, 248. _ (The Court say : " It is possible that the pleader had it not in his mind in preparing the answer to make a point upon the quantity and value of the property, but to contest only the cause of action. But the allegations of the complaint, and the denial of the answer are upon the record, and the Court cannot, by a summary judgment, deprive the defendants of the right of a trial of the issue thus formed.") Adams vs. Smith, 19 Nev., 259 ; s. c, 10 Pac. Bep., 353, 355. (Action to recover back money paid. Leonard, J., says: " It is said that appellant's allegation touching the non- payment of the note was inserted for the purpose of asserting title in himself. That was probably his primary object, though it may not have been the only one. But, whatever the truth may be as to his reasons for alleging non-payment, the fact remains that he did allege it, and it shows, at least, that he did not intend to admit that the note had been paid, and consequently that the claim was false and fraudulent.") ' Southwick vs. First National Bank, 84 N. Y., 420, 429 ; s. c, 61 How. Pr., 164 ; 12 Weekly Big., 478 ; rev'g 20 Hun, 349. (Earl, J., says : " A defendant may learn outside of the complaint what he is sued for, and thus may be ready to meet plaintiff's claim upon the trial. He may even know precisely what he is sued for when the summons alone is served upon him. Yet it is his right to have a complaint, to learn from that what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer ; and when a plaintiff fails to establish the cause of action alleged, the defendant is not to be deprived of his objection to § 546.J What Allegations Tender an Issue. 451 a recovery by any assumption or upon any speculation that he has not been injured.") [Contra, Coffin vs. McLean, 80 N. T., 560. (Action at law : answer a set-off on legal grounds. The evidence showed not a legal but an equitable right of set-off which was proved against objection. Held, that it was available. Folgee, J., said: " The answer set up every fact thus shown, save that of the insolvency of the prin- cipals ^ and of that the plaintiff was apprised before the trial, and apprised also that the defendants would seek to use that fact to make out a right to set-off. We think that in the present temper of the law and the courts for reaching the merits of a litigation — without regard too much to the frame in which the pleadings have set the issue — the defence may be treated as an equitable one, and if there were need, the pleadings would now be amended to take in averments of the facts as shown on the trial."] § 546. formal allegations required hy rule of cov/rt. — Under the New Procedure, allegations inserted because required by statute or rule of court, although not other- wise part of the cause of action, are admitted by not being denied. This seems to result from the ruling in Morrell vs. Morrell, 3 Barh. {N. Y.), 236, that the denial of con- nivance in a bill for divorce is the proper subject of an issue; and the suggestion in Wheeler vs. Van Keuren, 1 Barh. Oh., 490, that in a chancery suit relat- ing to property there must be proof that the matter in dispute exceeded $100, or a decree could not be made pro confesso, (and it is in accordance with the present doctrine as to such allegations of matters required by statute [see § , Demarid']). But to the contrary was a ruling on exception to answer in Batterson vs. Ferguson, 7 Barl., 490, where Habeis, J., said : " I do not under- stand that the defendant in a creditor's bill is bound to answer the averments that the defendant has property, etc., to the amount of one hundred dollars, or that the bill is not filed by collusion, at all. These averments are required, by a rule of the court, to be inserted in the bill, and of course it would be defective in form without them. They constitute, however, no part of the plaintiff's case. It is not necessary for him to prove them, to entitle him to the relief sought. The rule for 452 Abbott's Bmef on Pleadings. Issues of Fact. [§ 547. determining whether an answer to any particular aver- ment is necessary is to ascertain whether it is material to the plaintiff, to enable him to obtain the relief he seeks, to have the proof, or an admission of such aver- ment. If the proof will avail the plaintiff in obtaining relief, he is entitled to an answer ; otherwise the de- fendant is not bound to answer, for his answer would be immaterial. [Compare § 287, Demurrer.] i § 547. Presu7nption inconsistent with allegations. — A presumption of law in favor of a party cannot aid his pleading if it is inconsistent with his own allegations, even though they were not essential to the case made by Ms pleading. [But compare §§ 50-55.] Andrews vs. Chadbourne, 19 Barb. {JV. Y.), 147. (Holding that allegations in respect to time, like all other alle- gations, are evidence against the party making them, as his admissions. All presumptions of law in favor of a party must be consistent with his allegations. None will be indulged for his benefit in opposition to an express allegation, although such allegation may not have been essential to a statement of a good cause of action. Thus it will not be presumed that a promissory note was transferred before its maturity, when it is alleged in the complaint that the transfer was on or about a specified day which was after the note matured ; and the defendant may in absence of evidence properly repose on such allegation and claim the benefit of pay- ment to the payee before that time. Judgment there- fore reversed.) § 548. Inconsistent protestation does not prejudice. — A protestation, at Common Law, is an admission of the matter to which it is addressed, but is available only in that very action. But if the pleading which contains it contains also allegations inconsistent with such an admission, the admission may be disregarded, as repugnant and not prejudicial to the pleader. Briggs vs. Dorr, 19 Johns. (iT. T.), 95. § 550.] Express Admissions. 453 § 549. Denial of anticipated defence does not change bv/rden of proof — Plaintiff by inserting in tte complaint matter not essential to his cause of action, bnt intended to negative an anticipated defence, does not assume the burden of proof as to that matter. But if the answer sets up that defence, the defendant must prove it. Murray vs. N. Y. Ins. Co., N. Y., 9 All. N. C, 309; s. c, 85 N. T., 236; rev'g 19 Hun, 350. (Action on life policy. The unnecessary allegation in the complaint that the death of the assured was not caused by the breaking of any of the conditions of the policy, ■will not, although denied by the answer, deprive the defendant of the affirmative o% the issue, where the issuing of the policy is admitted, and the answer affirmatively alleges facts showing a breach of a con- dition. Judgment reversed for error in holding con- trary.) s. P., Coburn vs. Travelers' Ins. Co., 145 Mass., 226. 5. ExPEEss Admissions. g 550. Interpretation of express admis- § 555. Admission qualified in sub- sion. stance. 551. 'Admission in notice of special 556. Admission coupled with justi- matter. flcation or avoidance. 553. of similar instrument. 557. Protestation. 653. Admission by tender and pay- 558. Admission of conclusion of law. ment into Court. 559. Admission denied. 554. Denial and tender. 560. Disclaimer ; its requisitee. § 550. InterpretaUon of express admission. — An ex- press admission need not be held conclusive against the party in any broader sense than its terms necessarily imply. Jones vs. Morehead, 1 Wall. {U. S.), 155, 165. (Suit to restrain infringement of patent of lock. Answer admit- ted the manufacture and sale of locks. EM, that the language of the admission was satisfied, by assuming that the smallest number of locks were made, consist- ent with the use of that word in the plural, and with 464 Abbott's Beief on Pleadings. Issues of Fact. [§ 550, the use by defendants of any part of tlie patent wliich was valid; this being consonant with the apparent justice of the case. Hence it was error to grant an in- junction as to the whole of the patent, and to allow more than nominal damages.) Gallatin Natl. Bank vs. Nashville, Chattanooga, etc., K. E. Co., 4 iV^. Y. State Rep., 714. (Holding an express ad- mission that a specified person, being then president of a corporation, " signed " a specified instrument, not an admission of his authority to sign, especially when coupled with a denial. Hence error to direct verdict as if the authority were admitted.) Schwarz vs. Sears, Walk. Ch. Itep.{Mich.), 19. (Bill to set aside foreclosure, alleging that specified payments had been made. Hdd, that as it was not alleged that these were all the payments, the admission did not preclude complainants from showing that other payments had been made. The chancellor said that admissions in a bill or answer, to be conclusive on the party making them, must be full and unequivocal. They must not be inferred from other admissions, unless the express admission is so closely connected with the one to be inferred that to disprove the latter would disprove the former.) National City Bank vs. Westcott, 118 N. T., 468. (An admission in an answer that a check "properly en- dorsed" was presented for payment "as alleged in the complaint," held, no broader than the allegation of the complaint ; and as the complaint had not charged an endorsement by the answering defendant, such en- dorsement was not admitted. Citing Slocum vs. Clark, 2 Hill {N. T.), 475 ; Clark vs. Dillon, 97 N. Y., 370.) Compare Commercial Bank of Keokuk vs. Pfeiffer, 108 N. Y., 242, 252 ; s. c, 13 N. Y. State Rep., 506. (Admis- sion that defendants contracted with plaintiff as alleged, — an admission of plaintiff's incorporation, although incorporation was specially alleged by plaintiff, and the answer denied all allegations not admitted.) ^Compare Miller vs. Moore, 1 E. D. Smith {N. Y), 739, 743. (Foreclosure of mechanic's lien ; answer expressly admitting that the contractor had given plaintiffs his promissory note for a specified sum, which was received by plaintiffs to be applied on account of the labor, etc., in question for which labor, etc;, plaintiff claimed his lien. WooDEUFF, J., said : " This is a clear admission of the performance of the work ito that amount. It bears no other construction. The language of a plead- ing is always to be taken most strongly against the § 553.] Express Admissions. 455> pleader " . . . . Leave to amend by withdrawing the- admission at the trial properly refused.)] {Compare alsoSurgetm-.Byers, U.S. Circ. {Arh.), Hempst., 715, 719. (Holding that the rule of equity pleading that allegations neither confessed nor denied must be proved, does not apply where the statements in the answer can, by fair interpretation, be construed into an admission of or acquiescence in the allegations of ma- terial facts.)] § 551. Adfiiission in notice of special matter. — What is unequivocally stated in a notice of special matter filed Viritli a general denial, where the practice sanctions such notice, may be treated by the plaintiff as an admission equivalent to evidence, and will sustain a finding in his favor. Somerset & C. E. Co. vs. Galbraith, 109 Pa. St., 32, 39 ; s. c, 1 Ail. Bep., 371 ; s. c, 3 East. Rep.,. 170. (Action for causing death. Notice that deceased accepted em- ployment under said company with full knowledge, etc., held, a sufl&cient admission that he was in their employment.) § 552. of similar insPi'ument. — An admission expressed as relating to an instrument similar to or like that alleged, without denying the one alleged, is an ad- mission as to the one alleged.^ An admission of an instrument of the same designa- tion and parties as that alleged, coupled with a mere denial that its contents are correctly stated in the com- plaint, is no denial, but operates as an admission of the instrument alleged.^ ' Millville Mfg. Co. vs. Salter, 15 Abb. N. C, 305 ; s. c, 21 N. T. Weekly Dig., 355; IHow. Pr. N. S., 495. (Hold- ing that an express admission of the acceptance of a draft similar to that set forth in the complaint, dis- pensed with the necessity of proving the acceptance.) ' Wallach vs. Commercial Fire Ins. Co., 12 Daly, 387. 456 Abbott's Ijmi:]? on Pleadings. IsStt«s of Fact. [§ 553. § 553. Admission by tender and payment into Court. — A tender upon the claim in suit, and paying into Court the sum tendered, absolutely admits that amount to be due ; but does not admit that plaintiff is entitled to re- cover more, nor that he could recover anything had the tender and payment not been made. Wilson vs. Doran, 110 N. T., 101 s. c, 15 Civ. Pro. B., 96, (rev'g 46 Hun, 88 and holding that to defeat plain- tiff's claim to anything beyond the sum admitted, de- fendant could, under a denial, prove that plaintiff had no title to the cause of action. The result of the au- thorities is that defendant, notwithstanding tender, etc., may defend on any ground which admits the original contract or duty.) Griffin vs. Harriman, 74 Iowa, 436. (Action for $125 for use and occupation. Defendant tendered $25. Held, not error to charge that plaintiff was entitled to a fair rental for so much of the land as defendant used, and after verdict for $25 not error to refuse a new trial, asked on^ the ground that the answer admitted the use of all the land.) § 554. Denial and tender. — A denial of the allega- tions constituting the cause of action, may be set up in the same answer with a tender as a separate defence.' But if the tender expressly relates to only a part of the wrong or damages, the denial may be construed as confined to the other part.^ ' Lake Shore & M. S. Ey. Co. vs. Warren ( Wyoming, 1885), 6 Pacif. Rep., 724. (A well-considered decision in sup- port of allowing so-called inconsistent defences, unless one absolutely shows the falsity of the other as a mat- ter of fact.) See §§642-649, Inconsistency. Clarke vs. Lyon County, 7 JV^ev., 75. Berdan vs. Greenwood, 39 L. T. N. 8., 223. "" Taylor vs. Chicago, St. Paul & K. C. E. Co., 76 Iowa, 753 ; s. c, 40 North West, 84. (Holding that a denial coupled with a tender of the value ol part of things alleged to be injured, was an admission as to that part, and a denial only as to the rest.) § 555.] ExPBESs Admissions. -157 Compare also Spurr vs. Hall, 37 L. T. B. W. S., 313, in a case of nuisance, where such a combination would put plaintiff in a dilemma. § 555. Admission qualified in substance. — In defining the limits of the issue, an admission qualified in its very substance, and coupled with a denial of what is not ad- mitted, must be taken with the qualification ; and the allegation is not admitted except as qualified ; and if the adverse party relies on the unqualified admission as dis- pensing with evidence, he must disprove the qualifica- tion. Gage vs. Bissell, 119 lU., 298. (Allegation of adversary's deed as illegal, admits existence of illegal deed only.) Garretson vs. Bitzer, 57 Iowa, 469. (Allegation of con- tract: denial of indebtedness, coupled with setting out substantially the same contract and alleging payment. Hdd, that plaintiff must prove the indebtedness.) Gildersleeve vs. Landon, 73 N. Y., 609. (Allegation by plaintiff that he purchased in good faith. Admission in answer that plaintiff purchased ; but coupled with allegation that he did so with knowledge of defendant's prior mortgage. Held, that the statements must be taken and construed together.) Albro vs. Figuera, 60 M. T., 630. (Complaint for goods sold, pleading delivery of specified items and admitting specified payments. Answer admitting sale to defend- ant of a large quantity of merchandise, and that de- fendant made the payments specified by plaintiff, but denying that any balance was due, and denying every allegation except as admitted. Held, that this put in issue the items of the account, the times of sale, and prices.) Goodyear vs. De La Vergne, 10 Hun, 537. (Action for price of goods. Denial ; and admission only that de- fendants received goods such as described from a third person and paid him. Held, error to direct verdict for plaintiff on proof that the goods were plaintiff's and they shipped them to defendants ; and their value ; for the admission of receipt was qualified by allegations that the goods came from, and were paid for to, a third person.) Breemer vs. Burgess, 2 Wash. T., 290, 296 ; s. c, 5 Pac. 458 Abbott's Beief on Pleadings. Issues of Pact. [§ 556. Rep., 840. (Allegation of promise to pay a specified price. Admission of promise to pay that price if the goods were merchantable, etc., coupled with allegation that they were not merchantable.) Compare Mott vs. Consumers' Ice Co., and other cases on the use of the adversary's pleadings as evidence against him, in Ahh. Civ. Jury Brief, 69. On this distinction, Landon, J., in "Whitney vs. Town of Ticonderoga, 53 Hun, "214: ; s. c, 6 Supp., 844, says : " When regarded as a pleading, every part of the plead- ing is adopted, nothing extrinsic is to be considered, and, therefore, nothing is presented to impair the full force of the result which the pleader sets forth. If the avoidance is ample as pleaded, there can be no confes- sion in the pleading which can be separated from the ample avoidance. But when the pleading is read in evidence, it is read as the declaration of the party, and takes its place as any other testimony to be considered by the jury in connection with the other testimony. The jury must determine the issues of fact upon a fair consideration of all the testimony." § 556. Admission coupled with justification or avoid- ance. — An admission of a fact is not deprived of the effect it has to dispense with evidence, by couphng with it dis- tinct new matter, such as a justification or other separate avoidance of the fact. The plaintiff in such case need not prove the fact thus admitted, and the defendant must prove the avoid- ance or justification. Clements vs. Moore, 6 Wall. {U. S.), 299. (Creditor's suit against husband, the debtor, and wife, his grantee. Ad- mission in wife's answer that she paid for the property by giving up notes in which her husband was payee ; coupled with an allegation that her husband transferred them to her for money lent. Hdd, that payment with her husband's securities was admitted, and their trans- fer to her for value must be proved.) s. P., Oregon Co. vs. Oreg. Ey. & Nav. Co., 28 Fed. Rep., 605. (Allegation that instrument was executed by cor- porate officers in pursuance of a resolution duly passed. Admission of its execution under corporate seal, coupled with allegation that the meeting which passed the § 557. ] Express Admissions. 459 resolution was without a quorum. The lack of quorum being traversed by reply, Jidd, that the execution was admitted, subject to the question of quorum, on which the burden was on defendant. Parker vs. Lanier, 82 Ga., 216; s. c, 8 South East. Rep., 57. (Admission coupled with justification.) s. P., Conner vs. Keese {N. Y., 1887), 7 Centr. Rep., 283. (Sheriff's action on bond of deputy, alleging that he made a false return : answer that the deputy made a return according to the express directions of the sheriff. Hdd, an admission of having made the return, and its falsity, which dispensed with proof.) See the Equity rule as to a distinct fact not being neces- sarily taken as a qualification of an admission, well stated in Parkes vs. Gorton, 3 R. I., 27, 31. The distinction between this and the preceding rule rests on the same principle as that which governs the proof of admissions as evidence. See Ahh. Brief on Facts, 27, and Kouse vs. Whited (tliere cited), and Prince vs. Samo, 7 Ad. (& El., 627. § 557. Protestation. — The Common Law formj adopted thence in Equity, of inserting a protestation against matter not desired to be deemed admitted, has no effect in limiting admissions as to matters properly alleged by the adversary, so far as concerns their effect as admis- sions in the suit in which they are made. Taylor vs. Holmes, 14 Fed. Rep., 498, 501. And an admission is none the less such because explained as founded on unwillingness to contest and a desire to bay peace. Globe Nail Co. vs. Superior Nail Co., 27 Fed. Hep., 454. (Infringement of patent. Answer that defendant had not been disposed to contest the claim, but chose rather to make terms, and had before suit, offered, and now offered, to pay the usual royalty, — Md, an admission entitling complainant to a decree of validity and infringement.) § 558. Admissio?i of conclusion of law. — An express admission of a conclusion of law, or a mixed conclusion of law and fact, stated in the pleading of the adverse party, as distinguished from failure to deny, admits all the facts necessary to support that conclusion, unless 460 Abbott's Beief on Pleadings. Issues of Fact. [§ 559. there is an express denial of such facts coupled with the admission in such manner as to qualify its meaning.* But it is not conclusive on the pleader as to the ques- tion of law.^ ' Stephenson vs. Leesburgh, 33 Ohio St., 475. (Admission that the town suing to recover possession of streets, had been laid out and established ; and a denial that the plat set forth in the petition was a correct one, and denial of all the other allegations in the petition. Held — 1. That this, without a specific denial to the contrary, ad- mitted all the facts averred which were essential to the legal establishment of the town and the dedication of its streets; 2. That the general denial applied only to the averments not so admitted.) Sadler vs. Olmstead, 79 Iowa, 121. (One of the counts was on an award alleging facts constituting a common- law submission. The answer admitted the award, and, without attacking it in any manner, added a general denial ' except as admitted.' Held, error to leave to the jury the question -v^hether there was a submission of the matter awarded on, for this was admitted by ad- mitting the award.) " People ex rel. Purdy vs. Commissioners of Highways, 64 N. T., 276. s. p.. Union Bank vs. Bush, 86 id., 631 (Express allegation.) [The reason is that, as all are presumed to know the law, no one is misled.] Cutting vs. Lincoln, 9 All. Pr. N. 8., 436. § 559. Acknission denied. — A defendant whose an- swer denies a fact admitted in the complaint, cannot claim the benefit of the admission. Hurd vs. Hannibal and St. J. E. E. Co., 18 N. Y. Weekly Dig., 239. (Here the complaint for the price of build- ing elevators alleged that the receipts of business — which were, by the contract, to be allowed on account — were a specified sum, and this the answer denied. Held, that because of the denial plaintiff could show, and the referee could find, that the receipts were less than alleged.) Spores vs. Boggs, 6 Oreg., 122. (Eeplevin : plea of title in third person ; denial by replication. Held, that plain- tiff was not entitled to judgment on the pleadings by § 560. J ADMISSION'S BY NOT DENYING. 461 reason of defendant's disclaimer of ownership. Be- cause if plaintiff relies upon an admission, he should not deny it.] [Compare Curl vs. Watson, 25 Iowa, 35. (Holding an allegation of both parties of the same fact conclusive notwithstanding a denial by each.)] § 560. Disclaimer; — its requisites. — A disclaimer must show that defendant is entitled to be dismissed from the action. For this purpose it must show not only that he has no interest, but that he is under no liability/ and that no relief in respect to the merits can be had against him.^ It cannot be sustained if he is liable even for costs only.^ ' Ellsworth vs. Curtis, 10 Paige (N. Y.), 105. Graham vs. Coape, 9 Sim., 93, 102 ; s. c, 3 Myl. & C, 638 ; Glassington vs. Thwaites, 2 Buss., 459. (Disclaimer of interest cannot avail to evade a liability.) ' Isham vs. Miller, 44 N. J. Eq., 61 ; s. c, 14 Atl. Rep., 20 ; s. c, 12 Cent Rep., 235. (Suit to declare a deed to be only a mortgage. Disclaimer of all interest, while continuing to hold the apparent legal title, ordered off the files.) ° Graham vs. Coape, 9 Sim., 93, 103. (Bill by cestui que trust against trustees and an intermedler ; alleging that the latter had rendered the suit necessary, and praying that he be charged with its costs.) 6. Admissions by not Denying. [As to admissions of amount and value, see § 540; of documents, see §§ 539, 615-636 ; of jurisdictional facts, see § ]■ §561. Immaterial allegation. §567. Avoidance of anticipated defence 563. Defect of essential allegation. admitted by pleading the de- 563. — of mere conclusion of law. fence. 564. — of conclusion of law, without 568. — of ground of conclusive pre- denying facts. sumption. 565. Main fact, and evidentiary facts. 569. Infant's answer. 566. Allegation of mere evidence. 570. Tacit equivalent to express ad- mission. 462 Abbott's Beiei- on Plbadikgs. Issues of Fact.' [§ 561. § 561. Immaterial allegation. — Under the usual pro- vision in the codes that each " material " allegation in the complaint, or in a counterclaim, not controverted must be deemed true, an allegation which could be struck out without impairing the pleader's cause of action or defence is not admitted by failure to deny it. [According to some statutes and some decisions, allega- tions essential to a cause of action are "material" within the meaning of the rule. See § 536, where the question is more fully stated.] ' Toland vs. Sprague, 12 Pet. ( U.S.), 300, 335. (Assumpsit : plea of statute of limitations ; reply setting up an excep- tion in the statute in favor of merchants' and factors' accounts, and averring also that no account whatever was ever stated or settled between the parties to the action ; rejoinder by defendant that he was not plain- tiff's factor. Held, as the negative averment, that there was no account stated, was not a necessary part of the replication, defendant's omission to traverse it did not admit it ; and the court below did not err in submitting to the jury evidence that an account had been stated. Brown vs. Wakefield, 1 Gray {Mass.), 450. (Holding that under the Mass. Prac. Act, which provides that a " sub- stantive fact, alleged with substantial precision and certainty," is admitted by failure to deny, — a fact not set forth in terms clear, full, unambiguous, and with legal precision, is not admitted by failure to deny. Followed in Tarbell vs. Gray, 4 Gray, 444, 446.) Moore vs. Murdock, 26 Oal., 514. (Conversion : answer as new matter, that plaintiffs had bought the sheep at a pretended sale ; also designating the place and the per- son who had charge of them. IMd, that these latter allegations were mere matters of evidence ; and that the replication that the sale was made in good faith and for valuable consideration, and alleging plaintiff's posses- sion before levy of the attachment, sufficiently put in issue the ultimate fact of ownership.) Kacouillat vs. Rene, 32 Gal., 450. (Complaint to foreclose, against a subsequent purchaser, a mortgage improperly recorded, improperly alleged facts which were merely evidence of constructive notice. These facts the answer attempted to deny. After a trial in which the question of notice was regarded as an issue by both parties, held, that evasiveness in the denial could not avail, and that only the material allegations of the § 563.] Admissions by not Denying. 463 pleadings should be regarded ; and conceding tlie denial defective, the immaterial allegations were not admitted.) Wood vs. Steamboat Fleetwood, 19 Mo., 529. (Allegation of value of goods, in action for breach of contract of affreightment, not being material, it was reversible error to instruct the jury that it was admitted by failure to deny it.) Barton vs. Sackett, 3 How. Pr. {N. Y.), 358. (The com- plaint alleged that by a certain instrument defendants had assumed the payment of certain notes held by them. The defendants denied that they intended by the instru- ment to render themselves liable. The plaintiff replied by setting forth the instrument. After the plaintiff had proved the agreement, etc., the defendant's counsel moved for a nonsuit because the reply did not negative the defendant's averments as to the meaning and inten- tion of the agreement. Held, that the allegations as to meaning were immaterial and under the code should be disregarded on the trial, as the plaintiff was not permit- ted to demur.) Oechs vs. Cook, 3 Duer {N. Y.), 161. (Complaint alleged plaintiff sold defendants, "under their firm name of John Cook & Son," certain goods. The answer did not deny the partnership. At the trial defendants' evidence that they were not partners was excluded. Held, as the allegation of partnership was not such as would pre- clude the plaintiff from recovering on proving a purchase by the defendants jointly, it was not admitted by not being denied ; and the defendants might show on the trial that the partnership did not exist, for the purpose of disproving delivery to them. New trial granted.) Same rule in Equity Story's Eq. PI., 40. By the Colorado Civ. Code, § 71, Sess. Laws, 1887, every material allegation of the complaint or answer not con- troverted is deemed admitted. By the Kansas Civ. Pro., § 128, Gen. Stat., 1889, § 4211 ; ihe Jndiana Civ. Pro., Bev. Stat., 1888, §383 (110); and the' Missouri 'Bev. Stat., 1889, § 2073, every material allegation of the complaint, . . . and every material allegation of new matter in the answer not controverted, is deemed admitted. § 562. Defect of essential aUegation. — ^A pleading which is insufficient by reason of a fatal defect in sub- stance, is not aided by a failure to deny. 464 Abbott's Buief on Pleadings. Issues of Fact. [§ 563. Boyce vs. Brown, 7 Barb., 80, 90 ; aff'g 3 Eow. Pr., 391. (Holding that the rule of the Code that averments not controverted are admitted, does not apply where the title averred itself is defective, or where in truth none is averred.) If the bill do not make a case, no relief can be had, what- ever the admissions of the answer. Jackson vs. Ashton, 11 Pet. {U. 8.), 229 ; Knoxi7s. Smith, 4ZZbw. {U. K), 298. § 563. Denial of mere conclusion of law. — An allega- tion of a legal conclusion, without facts to support it, is not admitted by failure to deny it,^ nor by pleading matter in avoidance.^ But if the complaint is only sustainable by treating a legal conclusion therein stated as a proper allegation, a denial which is as broad as the allegation is a sufficient issue to support judgment thereon after trial.^ ' Wormouth vs. Hatch, 33 Cal., 121. (Action to enforce mort- gage ; an averment that the defendant's land is " subject to the mortgage " is but a conclusion of law, and the failure of defendant to deny it cannot avail the plaintiff. Allegations that defendants paid, by checks, interest on the notes secured by the mortgage, and that they always admitted their liability to pay it, and the prin^ cipal also, etc., being mere averments of evidence and not facts, need not be traversed. Judgment on plead- ing affirmed.) Watson vs. Lemen, 9 Colo., 200. (Suit on note : denial that the notes were due, denied only a legal conclusion and formed no issue. Not error to give judgment on the pleadings, for defendant would not be entitled to offer evidence disproving maturity.) [But see § 273.] Alston vs. Wilson, 44 Iowa, 130. (Action to recover land: answer in effect that plaintiff's deed was " in fact but a mortgage for money advanced. " Hdd, only a conclusion of law, and a reply failing to deny it did not admit it.) Porter vs. Wormser, 94 N. Y., 431. Jordan vs. Shoe & Leather Bank, 74 N. Y., 467, 471 ; s. 0., 3 Am. R., 319. (Though the matter set up in the answer be admitted as true by a failure to reply thereto, it still remains to be determined whether the courts will accede to a claim in the answer that such matter constitutes a legal right in the defendant. A § 664. J Admissions by not Denying. 465 party is not estopped by not taking issue on a matter of law averred in nis adversary's pleadings.) S. p., People ex rd. Purdy vs. Commissioners of Marlbor- ough, 54 JV. Y., 276; s. c, 13 Am. B., 581. (Validity of statute.) ' Alston vs. Wilson, 44 Iowa, 130. (Allegation that deed was a mortgage not admitted by failure to deny, and pleading in avoidance.) ' Weinhauer vs. Morrison, 49 Hun (N. Y.), 500 ; s. c, 18 State Rep., 800. And see § 535. § 564. — of conclusion of Imv, without denying facts. — A denial of a conclusion of law without denying facts alleged in the adversary's pleading which substantiate the conclusion, is an admission of the facts, and the conclu- sion follows. Adams vs. Adams, 21 Wall. ( U. S.), 185, 190. (Holding that a denial in an answer in equity that defendant " deliv- ered " an alleged deed, goes for nothing if the answer admits facts and circumstances which do in law con- stitute delivery, — such as that he signed and sealed it,, acknowledged it before a proper magistrate, and put it upon record ; facts which of themselves may, under the circumstances of the case, constitute delivery.) Emery vs. Baltz, 94 N. Y., 408. (A denial by a surety of " knowledge or information sufficient to form a belief as to whether or not the said [principal] was at the time of the commencement of this action indebted to the said plaintiff in the sum mentioned in the complaint, or in any other sum, and therefore deny the same," — held, merely a denial of a legal conclusion which put no fact in issue. [Distinguishing Goodyear vs. De la Vergne, 10 Hun, 537 ; Albro vs. Figuera, 60 N. Y., 630.]) Lee vs. Casey, 39 Mo. 383. (Plaintiff alleged that defend- ant owed plaintiff for goods sold and delivered, and the answer simply denied the indebtedness. Hdd, in effect an admission of the sale and delivery.) s. p., Thruston vs. Oldham, 6 Bush {Ky.) 16. Gale vs. James, 11 Colo., 540 ; s. c, 19 Bac., 446. (Saying that the liberal construction of pleadings provided by the Code does not mean that the courts shall supply the pleading bodily, or any substantial averment which may be wanting, or that they shall overlook or disre- gard the omission of a substantial averment.) Holbrook vs. Sims, 39 Minn., 122 ; s. c, 39 N. W., 14., 140. 466 Abbott's Beief ok Pleadings. Issues of Fact. [§ 565. (Failure to deny allegation that defendants made the note in suit to plaintiff, an admission of title in plaintiff, though coupled with a denial that plaintiff was the law- ful owner and holder, and though the note when pro- duced at the trial bore an uncancelled indorsement.) - [See also Conselyea vs. Swift, 103 N. Y., 604.] § 565. Main fact, and evidentiary facts. — A denial of a conclusion of fact is sufficient, although mere matters of evidence which the adverse party alleged in support of it, be not denied.' A failure to deny the main substantive fact is an ad- mission of it, irrespective of any denial of allegations of probative or evidentiary facts.^ ' So if an answer alleges mere matters of evidence, a repli- cation is good which traverses the ultimate and issuable fact which the answer was intended to aver. Moore vs. Murdock, 26 Ccd., 514, 524. ' Mulford vs. Bstudillo, 32 Oal, 131, 138. § 566. — of allegation of mere evidence.^-An allegation of matters merely amounting to evidence, instead of an al- legation of the fact which such evidence might serve to prove, is not admitted by the failure to deny the matters so alleged. Eacouillat vs. Eene, 32 Ocd., 450. Dexter vs. Moody, 36 Minn., 205 ; s. c, 30 JVorth West. Eep., 667. {Dictum, approving the last case, but holding the rule to be otherwise where the answer is so framed as to indicate an intention to take advantage of the mat- ters of evidence so alleged.) Siter vs. Jewett, 33 Cal., 92. (Holding that a deraign- ment of title, only material as showing, whether the grantee took subject to a mortgage or free from it, is matter of evidence only, and not admitted by failure to deny.) So also of argument and inference, Story^s Eq. PI., 40, citing Merry vs. Plainfield, 45 iV: K, 126. "WUlard vs. Williams, 7 Gray {Mass.), 184. (Allegation of money received "by the defendant by his agent B.:" answer that defendant " never by himself or agent re- § 567.] Admissions by not Denying. 467 ceived the money or any other sum," etc. Held, that the agency oi B. was not admitted because a mere state- ment of evidence by which plaintiff proposed to prove his cause of action, and unnecessary. Bigelow, J., said : " It would manifestly lead to great confusion and pro- lixity in pleadings — evils which the Practice Act" was especially intended to prevent — if a plaintiff could be allowed to incumber his declaration with averments of matters of proof, and thereby compel a defendant to deny them.") [For the Mass. rule that failure to deny admits only the substantial part of the allegation, see Woodbury vs. Jones, 3 Gray {Mass.), 261 ; Kellogg vs. Inhab. of Northhampton, 4 id., 65.] § 567. Avoidance of a/nticipated defence admitted by pleading the defence. — In Equity, if the bill of complaint sets up an anticipated defence and alleges matter in avoidance, an answer setting up that defence and not de- nying the facts alleged in avoidance admits those facts.^ The same principle has been indirectly recognized at Com- mon Law.^ It is the better opinion that the same principle is fully applicable under the New Procedure.^ ' Harris vs. Knickerbocker, 5 Wend. {N. Y.), 638 ; rev'g 1 Paige, 209. (Bill for specific performance of oral con- tract, setting up circumstances taking it out of the stat- ute of frauds. Defendant cannot avail himself of the statute, unless he traverses the anticipatory avoidance.) s. p., Kane vs. Bloodgood, 7 Johns. Ck, 90, 132, aff'g 8 Cow., 360; Albany City Bank vs. Dorr, Walk. Oh. {Mick), 322. Bogardus vs. Trinity Ch., 4 Paige, 178, aff'd in 15 Wend'., 111. (Holding plea not rendered double by in- sertion of averments, which are necessary to exclude conclusions from allegations in the bill, intended to defeat the bar which might be set up ; for on argument of a plea, every fact stated« in the bill, not denied by plea and answer in support, must be taken as true.) For the right to do so, anticipate and avoid a defence, in Equity, see also Stafford vs. Brown, 4 Paige, 88, holding such matter proper in the charging part of the bill; and Hawley vs. Wolverton, 5 id., 522, in which last case it was held error to strike out such matter. 468 Abbott's Brief on Pleadings. Issues of Fact. [§ 567. Also, Eules of U. S. Pr. in Eq., No. 21, which makes such matter proper in the narrative part or allegations of cause of action, by this clause : "And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes mil be insisted upon by the defendant hy way of defence or excuse to the case made by the plaintiff for relief." ' Somerville vs. Stewart (iV^. J"., 1886), 4 East. Bep., 535, 536. (The Court say : " Where a payment or performance is known and admitted, it is the better practice in de- claring on contracts to pay money, deliver goods, or per- form work, expressly to admit part payment, or partial performance, on the face of the declaration, to deprive the defendant of all pretence to plead such defence." Oh. PL, 288, 338. Dictum) 1 Chitt. PI., 16 Am. Ed., 629, saying that when matter which operates as an estoppel appears on the face of the dec- laration, a plea of the matter thus shown to be excluded by the estoppel is bad on demurrer. * The better view is that the substantial right secured by the equity practice is preserved by the Code, and that the plaintiff has a right in a legal as well as in an equi- table action (as he clearly has the right in a bill in equity) to state an anticipated defence and allege the facts which he relies on as constituting an avoidance, so as to compel the defendant to admit or deny such facts. One object of the merger of legal and equitable forms of pleading, and entitling plaintiff to a verified answer, was to secure this part of the benefits of discovery with- out its prolix and tedious forms. And even if plaintiff is to be put to an, examination before trial, in order to probe the conscience of the^ defendant, he is entitled to allege the facts he wishes to prove, as a basis for that proceeding. See note in 25 Abb. JV. C, 120. In Bracket vs. Wilkinson, 13 How. Pr., 102 (on motion to strike out such matter), E. Daewin Smith, J., says : " The plaintiff had a right to set forth these matters, so as to call upon the defendants to answer the same, and thus narrow the issue to be tried at the circuit to the fewest possible points. If the defendant cannot deny these al- legations, and verify his answer, he can make no de- fence ; but he might perhaps have answered, setting up the giving and receiving the note or the check in pay- ment, and have verified his answer. In this way, the plaintiff might have been long delayed in getting his cause to a trial, when there was, in fact, no actual de- fence." §568. J Admissions BY NOT Dekying. 469 Hopkins vs. Ward, 67 Barb. {N. Y.), 452. (Here plaintiff pleaded a note, and, anticipating that defendant would plead a bankrupt's discharge, alleged in a second count that plaintiff held defendant's note, and defendant, being so indebted to plaintiff, on a specified day promised to pay it. Held, that defendant by pleading a discharge granted prior to the date of the new promise, without denying the new promise, admitted the new promise.) People ex rel. Cornell vs. Knox, 38 Hun., 236, 240. {Quo warranto. Held, that though it is unnecessary for the people to allege the defect in defendant's claim to the ojfice, if they do and defendant fails to deny the allega- gation, it stands admitted.) s. P., Wyrick vs. Week, 68 Gal, 8; s. c, 8 Pacif. i?ep.,522. (Holding that where plaintiff, instead of leaving it to defendant to plead that he took as ionafide purchaser without notice, alleged that defendant had the legal title, but took it with notice, the burden was on plain- tiff to give evidence of notice.) The principle to be applied under the Code is well illus- trated in the able opinion of Woodbuff, J., in Winsted Bank vs. Webb, 39 N. Y., 325 ; affg 46 Barh., 111. [Contra, Sands vs. St, John, 36 Barb., 628 ; 633, s. c. 23 How Pr., 140. (Complaint alleged excuse for not suing within the time limited by the statute. Held, on de- murrer, that the allegation was not admitted.)] [Canfield vs. Tobias, 21 Col., 349. (Case submitted on the pleadings. Held, that the anticipated defence was not admitted ; hence judgment for plaintiff reversed.)] [Doyle vs. Franklin, 48 Gal., 537.] This was the settled rule in equity ; and its justice and convenience under the Code are obvious. See Note in 25 Abb. N. G., 120. § 568. — of ground of conclusive presumption. — Fail- ure to deny an allegation of a fact from which the law raises a conclusive presumption, admits botli the fact alleged and the fact so presumed, and precludes giving effect to any allegation to the contrary. Scofield vs. McDowell, 47 Iowa, 129. (Admission that a tax deed was executed, held, a conclusive admission of its validity, because the statute made such deed con- clusive evidence that due proceedings had been taken, although the admission was coupled with an allegation that the sale was made without due advertisement.) But compare § 547. 470 Abbott's Brief ON Pleadings. Issues of Fact. [§569. § 569. Infantas answer. — The failure of an infant, by or on behalf of whom a pleading is put in, to deny an allegation of the adverse party, is not an admission of its truth ; but the allegation, if material, must be proved as if it had been denied. Lube Eq. PI. Sumn. d W. ed., p. 81. (Stating that an infant is under protection of the court, and not bound by an admission.) [But evidence of new matter, on the part of an infant, is not admissible unless pleaded. Eoe vs. Angevine, 7 Hun (N. Y.), 679 (avoidance) ; MuUenbrinck vs. Pooler, 4 N. Y. State Rep., 127 (counterclaim).] [In Varner vs. Eice, 44 Arh., 236, judgment on partition was reversed because the answer of a guardian ad litem was general, instead of denying everything prejudicial to the infant, irrespective of its truth, s. P., Morris vs. Edmonds, 43 id., 4:2,1 ; Driver vs. Evans, 47 id., 297.] The Iowa Code (Miller, 1888, § 2656) also requires a de- nial of all the material allegations prejudicial to the minor, lunatic or prisoner. The Kentucky Code, Carroll, 1888, § 126 (153), puts at issue allegations against a defendant under any disability except coverture. § 570. lacit equivalent to express cuhfiission. — Under the New Procedure, failure to deny an issuable allegation, if such as to constitute an admission under the statute which provides that " each material allegation of the com- plaint not controverted by the answer . . . must for the purposes of the action be taken as true," is, for the pur- pose of defining the issue raised by the defence containing such admission, equivalent to an express admission of the allegatiou in question. Fleischmann vs. Stern, 90 N. Y., 110 ; s. c, 15 WeeUy Dig., 274, affg 24 Hun, 265; s. c, 61 How. Pr., 124 (citing Tell vs. Beyer, 38 N. Y, 161 ; West vs. Am. Exch. Bk., 44 Barb., 175 ; Marston vs. Swett, 66 N. Y., 206, 210; s, c, 23 Am. Hep., 43, rev'g 4 Hun, 153; s. c, 6 Supreme a., (T. & C.) 543; Paige vs. Willets, 38 N. Y., 28, and holding, therefore, that the failure of a defendant sued § 570.] Admissions by not Denying. 471 upon a note to deny allegations in tlie complaint spec- ifically stating an adequate legal consideration, pre- cludes him from availing himself of a defence set up in his answer that the note was usurious. [The application of this rule, made in the above case ta defeat the defence of usury because it did not contain a denial of the contract as alleged by plaintiff, has been thought by some inconsistent with the previous case of Newell vs. Doty, 33 JV. Y., 88, 92, where a plea of usury was sustained without any denial ; but the deci- sions seem to be consistent and both correct, when it is noticed that in Newell vs. Doty there appears to have been in plaintiff's complaint no other allegation of con- sideration than the general one of " value received " implied in pleading a promissory note ; and defendant 'did not controvert the receiving of value, but alleged that such value was usurious. While in Fleischman vs. Stern plaintiffs specifically alleged a consideration ade- quate in amount, and the defence of usury therefore re- quired a denial of legal consideration.] [Express admissions are sometimes more effective.] In equity, if some answer was made, failure to deny a par- ticular allegation is not an admission (except for the pur- poses of a motion for injunction), but is considered in aid of plaintiff's evidence. Commercial Mut. Mar. Ins. Co. vs. Union Mut. Ins. Co., 19 How. {U.S.), 318 ; Young vs. Grundy, 6 Cranch ( U. S.), 51. Miles vs. McCallan {Ariz.), 3 Pmific Eep., 610. (Feench, Ch. J., says: " The silence of the answer as to any al- legation of the complaint effects precisely the same result and shortens and simplifies the pleadings. What is not denied is admitted, and there can be no reason for expressly admitting it.") But an admission is not equivalent to an allegation. Our- tiss vs. Livingston, 36 Minn, 312 ; s. c, 80 North West. Bep., 814 ; and see § 541. 472 Abbott's Brief on Pleadings. Issues of Fact. [§ 571. 1. FOEM OF Denial ; and Admissions Denial. BY Bad §571. The words of denial. §591. 572. "Says he denies." 593. 573. Denial of legal conclusion. 593. 574. Denial of each and every alle- 594. gation. 595. 575. Denial of " material" allega- 596. tions. 676. — general denial when an ad- 597. mission. 598. 677. — under statutes not allowing 599. general denial. 600. 578. Specific denial, what is. 601. 579. Unspecific denial. 680. Disregarding lack of specific- 602. ness. 681. Denial of all allegations on a 603. particular subject. 582. Sweeping denial, with excep- 604. tion as to what is otherwise answered. 605. 583. with exception of speci- fied folios. 606. 584. Denial by reference to num- 607. bered paragraphs. 585. Denial of specific sum. 608. 586. Denial involving non-essential circumstances. — Negative 609. pregnant. 587. Negative pregnant. 610. 588. Evasive denial, — not covering the allegation. 611. 589. Addition of hypothetical or con- tingent avoidance. 612. 590. Conjunctive denial of conjunc- 613. tion. — Negative pregnant. 614. Disjunctive denial. Surplusage in denial. Refusal to admit. Mere call for proof. Submission to court. Admission of some such a con- tract admits correctness. Denial of correctness of copy. Craving leave to refer. Direct allegation to contrary. Different version not a denial. Giving different version does not change burden of proof. DifCerent version coupled with denial. Denial upon information and bleief. State Court practice in Federal Court. Denial of knowledge or infor- mation sufiBcient, etc. — except from specified sources. — and therefore denies- the same. Denial in alternative in respect to knowledge, etc. Matters presumptively within the pleader's knowledge. Jurisdiction.— General denial of citizenship. — denial of citizenship ; under New Procedure, — form of denial of citizenship. — time of citizenship. Burden of proof as to urisdic- tion. § 571. The wwds of denial. — The word "deny" is not essential. Any form of express denial is sufficient wticli distinctly controverts a specific allegation, so that if the allegation be true, perjury may be assigned upon the false denial if in a verified pleading. § 512.] FoBM OF Denial; and Admissions by Bad Denial. 473 Henny Buggy Co. vs. Patt, 73 Iowa, 485 ; s. c, 35 North West. Bep., 587. (Holding tliat to " controvert " is to deny.) A denial expressed thus — [Defendant] denies all the alle- gations in the [answer] which charge [plaintiff] with conspiring with, etc., to, etc., characterizing the charge thus generally is properly treated as a denial, at the trial. Herdman vs. Marshall, 17 Nd)r., 252 ; s. c, 22 North _ West. Rep., 690, 692. This is only a liberal con- struction in furtherance of justice. s. P., Academy of Music vs. Hackett, 2 Hilt. {N. T.), 217. But it was a rule at common law that if the allegation to be met is a negative allegation, it must be met by an affirmative or by denying an affirmative ; as for in- stance where defendant pleaded that he requested the plaintiff to deliver an abstract of his title, but that the plaintiff did not, when so requested, deliver such ab- stract, but neglected and refused so to do, the plaintiff cannot reply " that he did not neglect and refuse to deliver such abstract," but should reply, either denying the request, or affirmatively, that he did deliver the ab- stract. 1 Chitt. PI, 16 Am. ed., 684.* Compare Hummel vs. Moore, 25 Fed. Rep., 380 ; s. c, 20 Reporter, 111 ; and Watkinds vs. Southern Pacif. B. Co., 38 Fed Rep., Ill ; s. c, 4 Law, R. A, 239. It is not enough that words manifesting intent to deny are used. There must be an actual denial. Edward vs. Lent, 8 How. Pr. {N. Y.), 28. § 572. "Says he denies.'''' — A denial expressed thus — "The defendant says he denies that," etc. — is sufficient even in a verified pleading. Jones vs. Ludlum, 74 N. Y., 61. (The Court say : " It is a good general denial. A party using such language must be held to have intended a general denial, and could be held responsible for such a denial, made under oath, upon an indictment for perjury in case of its falsehood. It is the same as if the reply had been as follows : ' The plaintiff, for a reply to the answer, uses the following language : He denies,' etc." Contrary authorities are cited and disproved, but the ap- peal was dismissed on other grounds. If such a denial is not deemed sufficiently specific, the better practice is to move against it.) Meehan vs. Harlem Savings Bank, 5 Hun, 439. (The denials here were, in form, that the defendants " say 474 Abbott's Brief on Plbadikgs. Issues of Fact. [§ 573. that they have no knowledge or information sufficient to form a belief as to the truth of," etc., and " aver the truth to be that they are entirely ignorant and uninformed, and kave not any knowledge or information sufficient to form a belief, whether or not," etc. Held, sufficient. Daniels, J., said : "It is not that the term ' denies,' or ' denial,' may be made use of in the pleading, but simply that there shall be, when that form may be the one adopted, a denial in fact of any knowledge or in- formation thereof sufficient to form a belief. (Code, § 149.). . . . There can be no essential difference between the statement that the defendant has not any knowl- edge, etc., and the one made that it had no knowledge, etc. ; for the latter, equally with the former, is a denial of the existence, on the part of the defendant, of any knowledge or information sufficient to form a belief.") S. P., Wadleigh vs. Marathon County Bailk, 58 Wis., 546 ; &-C., 17 North West. Rep., 314, 316. [Contra, Powers vs. Home, Watertown, etc., E. E. Co., 3 Hun {N. r.), 285 ; s. c, 5 Supm. Ct. {T. & C), 449. But this case so far as the decision was placed on the authority of cases holding that " says, he denies " is not a good denial, is in effect overruled in Jones vs. Lud- lum, above.] § 573. Denial of legal conclusion. — A denial so ex- pressed that it controverts only a legal conclusion, does not raise an issue. Callanan vs. Williams, 71 Iowa, 363 ; s. c, 32 North West. Bep., 383. Merrigan vs. English, 9 Mont. 113. (Denial of indebtedness ; and denial that the facts gave any lien.) [For other authorities see § 533.] § 574. Denial of "each and every allegaUon.'''' — A denial expressed as of " each and every allegation in the complaint," is not objectionable as a negative pregnant ; * and is good unless the statute of the State requires a specific denial. Otherwise of a denial of . knowledge or information sufficient to form a belief ^ as to each and every allegation, etc. § 576.] FoKM OF Dekial; akd Admissions by Bad Denial. 475 ' Stone vs. Quaal (1886), 36 Minn., 46, 29 North West. Hep.. 326. ^ Boston Belief & Submarine Co. vs. Burnett, 1 AUen, 410. ' Waters vs. Curtis, 13 Daly {JST. Y.), 179. (Dictum.) § 575. Denial of " material " aUegations.T—A denial ex- pressed to be of "all the material allegations," or of " each material allegation," in the adversary's pleading, if not objected to before trial, may be treated as sufficient on the trial. Collins vs. Trotter, 81 Mo., 275. [Citing Edmonson vs. Phillips, 78 id., 57, where it was held that the objection could not avail when first taken on appeal.] In Goodridge vs. Union Pac. Ey. Co. {Civ. Gt. D. Colo.), 37 Fed. Rep., 182, it was held suflficienton demurrer, s. p., Lewis vs. Coulter, 10 Ohio St., 451. But it is certainly equally objectionable as other forms of denial which involve questions of legal construction, see §§ 578-582. And is obnoxious to a motion to make more definite and certain. Kimball vs. Stanton Coun- ty, 4 Fed. Rep., 325 ; Mattison vs. Smith, 1 RoU. {N. T.), 706 ; s. c, 19 Ahb. Pr., 288 ; Montour vs. Purdy, 11 Minn., 384). § 576. — general denial when an admission. — Under statutes providing that it shall not be sufficient in case of particular allegations — such as a general allegation of due performance of conditions precedent, or of official capacity, etc. — to controvert in terms contradictory of the allega- tion, but the facts relied on shall be specifically stated, — a general denial, without more, admits such allegation. Halferty vs. Wilmering, 112 U. 8., 713. (Under Iowa statute.) In the following list of states having such statutes, the jurisdictions where mere denial is not sufficient, but specific allegation of particulars of non-performance is required, in order to put performance in issue, are in italics. In others, the pleader met by a denial must prove the particulars he was excused from alleging. Arizona, Colorado Arkansas, Florida, California, Idaho, 476 Abbott's Bkief ou" Plbadistgs. Issues of Fact. [§ 577. Indiana, New York, Iowa, North Carolina, Kansas, North Dakota, Massacliusetts, Ohio, Michigan, South Carolina, Minnesota, South Dakota, Mississippi, Utah, Missouri, Washington, Nebraska, Wisconsin, Nevada, Wyoming. New Jersey, See the statutes collected under § 183, Demubbee fob iNSUrriCENCY. § 577. — U7ider statutes not allowing general denial. — Under a statute which requires specific denials/ a denial general in form is not made specific by adding a state- ment that each allegation covered by it is to be taken as specifically denied.^ But the Court has power to allow an amendment, by adding a specific denial, and may do this even after the close of plaintiff's testimony, if it does not cause surprise or prejudice.^ ' Arkansas— Mansf. Dig. Stat., 1884, § 5072. (Material alle- gations in a complaint not specifically controverted ; and, in an answer constituting a counterclaim or set-off, and not specifically controverted ; are admitted.) Minnesota — Stat. Kelly, 1891, § 4781. (Material allegations in the complaint not specificaUy controverted in the an- swer ; and material allegations of new matter in the an- swer not controverted by the reply as prescribed ; are admitted.) Californian — Civ. Pro., Beering's Anno. Codes, 1886, § 437. Montana — Gomp. Stat., 1887, § 89, and Nevada — Civ. Pro., § 86, Gen. Stat., 1885, § 3068, call for specific de- nial, if the complaint be verified. " Hensley vs. Tartar, 14 Cal., 508 (reversing judgment of nonsuit, which was granted because plaintiff offered no evidence to support such allegations). ' Eobinson vs. Hartridge, 13 Fla., 501. (Common-law ease. Hdd, that such amendment might be so allowed if it appear necessary in order to present the controversy existing before the trial.) § 579.] Form of Denial j and Admissions by Bad Denial. 477 § 578. Specific denial, wTiat is. — A denial is specific, within the meaning of the Codes, and raises an issue, if it specifies what is denied with sufficient clearness and cer- tainty to dispense with debatable analysis of phraseology, and preclude all discussion and doubt as to what is in- tended to be denied. The requirement of the Codes for "a general or spe- cific denial " has led some to suppose that every at- tempted denial must of necessity be either general or specific ; and in the earlier cases definitions attempting to draw a line between the two are found. But the intent of the statute is that the denial, to be sufficient, must be general, that is, covering the whole or sub- stantially the whole of a cause of action, or must be specific, pointing out, without leaving room for argu- ment, what part is denied and what is not denied ; and there may be denials that are bad because they are neither the one nor the other, but purport to deny a part without specifying distinctly what part. A denial specifying a paragraph of the cause of action by the number prefixed to that paragraph in the original complaint, is good. A denial specifying by folios, if specifically indicating the precise extent of the extract, may be good in the trial court ; but the practice of changing the folioing on printing an appeal book makes it bad in an appellate court. See §§ 583, 584. See Note in 15 Alh. N. G. {N. Y.), 282, where the cases are collected ; and see § 582, helow. In Tracy vs. Baker, 38 Eun {N. Y.), 263, 265, Bockes, J., says : " The test to be applied to a case like the pres- ent [denial of all not hereinbefore admitted], deducible from all the decisions as declared in the note to Clark vs. Dillon (15 Abb. N. C, 282), and which seems reason- able, is this : ' That a defendant may use this form when the excepted denials are so specific as to clearly point out the allegations of the complaint to .which they were intended to apply.' " § 5V9. [Inspecific denial. — A denial of parts of the adversary's allegations, which does not point to the alle- gations intended to be denied, so specifically as to iden- tify them at once without argument or explanation, may be treated as an admission. 478 Abbott's Brief ok Pleadings. Issues of Fact. [§ 580. Note in 15 Abb. N. G. [N. Y.), 282, and see Baylis vs. Stimson, 110 N. Y., 621; s.g.,]V. Y. State Bep., 175; aff'g 53 N. Y. Super. Ct. {J. & S.), 225. For other authorities see § 582. As this rule rests on its necessity for the convenience of the Court, and to prevent misleading the adversary, it is not error for the Court in its discretion to take time to compare with the complaint an answer that does not satisfy the rule, and determine what was intended to be put in issue, provided there is no sur- prise or prejudice to the adversary. See, for instance. Crane vs. Crane, 43 Hun, 309 ; Gallatin Natl. Bk. vs. Nashville, Chattanooga, etc., E. E. Co., 4 N. Y. State Bep., 714 ; and cases in following notes. § 580. Disregarding lack of specificness. — It is not error for the Court in its discretion, and in furtherance of justice, to disregard a lack of specificness in a denial, if the adverse party has raised no objection before trial, and is not surprised or prejudiced. Burley vs. German American Bank, 111 U. S., 216, 220. Spies vs. Eoberts, 50 N. Y. Super. Ct. {J. & S.), 301 ; s. c, 19 Weeldy Dig., 505. The appellate court should not entertain the objection if it was not made at the trial. Her dm an vs. Marshall, 17 Nebr., 252 ; s. c, 22 North West. Bep., 690, 692. §581. Denial of all allegations on a pa/rticular sub- ject. — A denial expressed to be of " all allegations which charge the defendant with " a specified liability or wrong, is a sufficient denial for the purpose of requiring evidence at the trial. N. Y. Academy of Music vs. Hackett, 2 Hilt. {N. Y.), 217. (Allegation in a complaint for rent, that " the rent was, as it became due, duly demanded." Denial of "each and every allegation in the complaint, wherein and whereby defendant is charged with being liable for any rent to the plaintiffs, or of any sum being due or owing from him to them," — hdd, sufficient to put the making of demand in issue.) s. p., Herdman vs. Marshall, 17 N^. 252 ; s. c, 22 North West. Rep., 690, 692. Nunnemacker vs. Johnson, 38 Minn., 390. § 582.] Form of Denial; akd Admissions by Bao Denial. 479 In McOonTille vs. Gilmour {Cir. a. S. D. Ohio), 36 Fed. Rep., 156, hdd, in an action at law tried by stipula- tion without a jury, that an answer to a petition on a partnership promissory note, setting out that defend- ants, " not having access to the notes," " deny all allega- tions thereabout,'' does not put in issue the partner- ship, as the denial must be, whether general or specific, so certain that, if untrue, a prosecution for perjury would lie. § 582. Sweeping denial, with exception as to what is otherwise answered. — A denial expressed as a denial of whatever is not herein qualified/ or explained,^ or of what is not herein admitted,* or herein controverted/ or spe- cifically denied/ is a good denial, if there is no uncer- tainty as to what it is that the pleader thus has excepted.* When such a denial is recognized by the trial court as putting the adverse party to his proof, if contention arises as to what is to be deemed excepted from the denial, the sweeping denial is to be construed as narrow ; and the exception is to be construed broadly, as an admission ; and whatever can be said in any sense to be " explained " or " admitted " or " qualified " (or otherwise according to the phrase used), even though it has not been effectually met, stands admitted.''' A denial expressed to be of " all contrary hereto " or " inconsistent herewith " may be held bad, as uncertain.^ A denial of what is not herein " avoided " is held bad ; for whether an allegation is avoided or not is matter of law. ' Miller vs. McClosky, 9 Abb. N. C, "303 ; s. c, 1 Oiv. Pro. B., 252. McEnroe vs. Decker, 58 How. Pr., 251. (Application to vacate injunction.) Jellison vs. Halloran, 40 Minn., 485; s. c, 42 North West. Rep., 392. ' Clark vs. Dillon (bdow cited). * Burley vs. German-American Bk., Ill U. 8., 216. (Opin. by Blatohfoed, J.) Gallatin Natl. Bk. vs. Nashville, Chattanooga, etc., R. E. 480 Abbott's Brief ow Pleadings. Issues of Fact. [§ 582. Co., 4 JV._ Y. State Bep., 714. (Eeversing for error in not treating it as a good denial.) ' Griffin vs. Long Island E. R. Co. (bdow cited). « Haines vs. Herrick, 9 Ahb. IST. C, 379. ' Griffin vs. Long Island Eailroad Co., 101 N. Y., 348 ; s. c.,_2 Centr. Rep., 382; 9 Giv. Pro. R., 84. (Eakl, J., said : " What had been before admitted and contro- verted was clearly specified, and hence there was no doubt or confusion as to the application of this general denial ; and this answer is not, therefore, condemned by the decision in Clark vs. Dillon, 97 N. Y, 370.") s. p., Boston EeUef & S. Co. vs. Burnett, 1 AUen (Mass.), 410 ; Matteson vs. Ellsworth, 28. Wise.,. 264. [^Compare Long vs. Long, 79. Mo., 644. (Holding an in- definite denial of this kind, obnoxious to motion.)] Even when such an answer is sufficient to raise an issue at the trial, if no claim be there made that it is a denial, it may not serve to sustain objection in the appellate court. Pennsylvania Coal Company vs. Blake, 85 N. Y, 227. ' Clark vs. Dillon, 97 N. Y, 370 ; s. c, with note, 15 Abb. N. a, 261, affg 11 DcHy, 110. (Holding that if new matter in the answer goes to qualify even the legoU effect of allegations in the complaint, such allegations are not traversed by a subsequent general denial in the same answer of allegations not thereinbefore "admitted, qualified or denied." [Distinguishing AUis vs. Leonard, 46 N. Y., 688 ; s. c, 22 Alh. L. J., 28.]) McLeod vs. Maloney, ^ N.Y. 8upp., 617 ; s. c, 20 State Rep., 468. (Such a denial held to admit whatever any- thing in the answer could be said to explain.) PuUen vs. Wright, 34 Minn., 314; s. c, 26 North Western Rep., 394. (A denial of all allegations not previously specifically denied is not to be construed as a denial of an allegation which the previous part of the answer purports to deny, although unsuccessfully by reason of a defect in the mode of denial. Thus if a denial is bad because of a negative pregnant, it nevertheless has the effect to except the allegation to which it is ad- dressed from the reach of a subsequent general denial of all allegations not already specifically denied ; be- cause the pleader cannot be allowed to experiment. His intent to deny is indicated, though the denial be bad because evasive.) Commercial Bank of Keokuk, Iowa, vs. Pfeiffer, 108 N. Y., 242 ; s. c, 13 N. T. State Rep., 506. (Holding that a denial of allegations not admitted does not deny § 583.] Form os Denial; and Admissions by Bad Denial. 481 those impliedly admitted. Here the complaint al- leged that plaintiff was a corporation organized and existing under the laws of another State, and that defendant entered into a contract with it ; and the answer did not expressly deny the averments in respect to plaintiffs incorporation, but admitted that they con- tracted with it as alleged in the complaint. Held, that they thereby impliedly admitted plaintiff's corporate existence ; and that it was not put in issue by a general denial of averments in the complaint, not admitted. Hence the objection that the complaint should have been dismissed on the ground that plaintiff failed to prove its incorporation, was unavailing. Judgment affirmed.) Potter vs. Smith, 70 N. Y., 299. (Complaint for trespass alleging title and possession in plaintiff. Answer alleged that defendant owned lands adjoining said lands of plaintiff, and had a right of way which he entered to remove obstructions from ; and denied all allegations "except as hereinbefore answered." Held, an admission of plaintiff's title and possession, because defendant had " answered as to it.") Ensign vs. Ensign, 47 Hun, 631 ; s. c, 14 N. T. State Be/p., 181. (In an action to have a deed declared a mortgage, where the complaint alleged plaintiff's ownership, and the answer, without denying this allegation, alleged that prior to a certain date the plaintiff was owner only as he derived his right from a certain will, — hdd, that the allegation of ownership was admitted, notwithstand- ing a denial, at the end of the answer, of " any other allegation in the complaint not heretofore denied or answered unto." The allegation of ownership must by such an answer be deemed " answered unto " by reason of the reference in the answer to the ownership. Judg- ment affirmed. [^Compare Curtiss vs. Livingston, 36 Minn., 312; s. c, 30 North West. Rep., 814. (Denial of everything not herein expressly admitted, denies what had been impliedly ad- mitted, although its admission was necessary to make out defendant's case.)] ^ Hammond vs. Earle, 5 Ahh. N. C, 105. Eichardson vs. Smith, 29 CoH., 529. (A denial expressed to be of all allegations not consistent with the answer, is not a good denial if the other parts of the answer do not amount either to a good denial or a good defence.) I 583. with exception of specified folios. — A denial which specifies the parts of the adversary's plead- 482 Abbott's Brief on Pleadings. Issues of Pact. [§ 584. ing intended to be denied, or intended to be excepted from a sweeping denial of all the rest, merely by refer- ring to the folios where or between whicb they are to be found, does not comply with the statute, and will not serve to present any question in an appellate court. Caulkins vs. Boulton, 98 N. Y., 511 ; s. c, 21 Weekly Big., 333. (The Court say : " The answer ... is so drawn that we cannot discover from the record how much of the complaint is admitted and how much denied.") Crosley vs. Cobb, 3 How. Fr. JST. S. (iT. Y.), 37; s. c, 22 WeeUy Dig., 570. Varnum vs. Hart, 47 Hun, 18. Both these cases hold that where references are only thus made, and the folios in the appeal book do not correspond with those in the original complaint, the appellate court will not consider anything turning on the question what was or what was not admitted. Baylis vs. Stimson, 110 iV^. Y., 621 ; s. c, 16 K T. State Rep., 175 ; a£f'g 53 Super. Gt. {J. & S.), 225. (The Court say : " The answer should disclose the defence, whether it be by denial or new matter, without reference to any other pleading; it should be complete in itself and require neither amplification nor patching from frag- ments of the complaint.") [The first clause of this statement is contrary to the Equity practice, and to the weight of authority under the codes.] Avery vs. N. T. Central, etc., E. E. Co., 6 N. T. Supp., 54!l. (The Court say, on appeal from an order on de- murrer to reply : " If the question presented by this demurrer involved the allegations in question, we should decline to examine them, as presenting nothing intelligible.") § 584. Denial hy reference to niumbered pa/ragraphs. —Where the paragraphs of the adversary's pleading are numbered, a denial expressed as a denial of each and every allegation contained in certain paragraphs, specify- ing thereby their numbers, is good. Thompson vs. Erie E. Co., 45 N. T., 468. AllLs vs. Leonard, 46 N. Y., 688; Note in 15 Ahb. N. a, 276. § 585. Denial of specific sum. — To an allegation of § 586.] Form of Denial; and Admissions by Bad Denial. 483 amount or value, a specific denial of that sum merely, and without alleging a different sum, is not available as a denial. [The reason is that the most trifling difference would justify it.] Burt vs. McKinstry, 4 Minn., 204, 213. (Allegation that the property was worth $75,000 and more. Denial that it was worth $75,000, adding merely that there was at the time in question little sale for property, held, no issue, but an admission that the value was 75,000.) But to an allegation of a specified sum, an answer stating that the sum was a specified less sum " and no more," is a sufficient denial, and is not impaired by a further allegation that the excess, if any, was contrary to in- structions. Simmons vs. Sisson, 26 N. Y., 264. Iowa Rev. Code {Miller), 1888, § 2701, provides that, " In all cases in which a denial is made by answer or reply concerning a time, sum, quantity, or place alleged, the party denying shall declare whether such denial is applicable to every time, sum, quantity, or place, and if not, what time, sum, quantity, or place he admits." Mass. Pvb. Stat. 1882, c. 167, § 19, is the same, except it applies to denial made by " answer, affidavit, or other- wise," instead of only to " answer or reply." § 586. Denialinvolving non-essential circumstances. — Negative pregnant. — A denial of matters contained in the adversary's pleading " as therein alleged," or rehearsing them as stated herein in such way as to include details not essential to the material part of the allegation, does not put in issue the essential part of the allegation, but avails as an admission of it. Byrd vs. Nunn, L. B. 7 CI. D., 284; s. c, 23 Moak's Eng., 511 ; aff'g L. B. 5 Ch. I)., 781 ; s. c, 22 Moah's Eng., 457 ; 37 L. T. Rep., N. 8., 90). (Action for specific performance of agreement to grant a lease. Plaintiff alleged that the defendant's predecessor in title made the agreement in question, by his lawfully authorized agent, with one H., the plaintiff's predecessor in title. Defendant denied this, by repeating the words of the statement of claim, and then alleged that H. was of un- sound mind when the agreement was alleged to have 484 Abbott's Bbiee ok Pleadings. Issues of Fact. [§ 586. been signed, and was incapable of authorizing, and did not, in fact, authorize any one as stated. Held, that defendant could only give evidence as to the state of the mind of H., and not on the question whether the agent was authorized or not, that being impliedly admitted.) Thorp vs. Holdsworth. L. B. 3 Oh. Div., 637. (Action for dissolution of partnership. Plaintiff set out the terms of an agreement for partcership ; and defendant's pleading admitted that he had agreed to enter into partnership, and added : " The defendant denies that the terms of the agreement between himself and the plaintiffs were definitely agreed upon as alleged." Held, an evasive denial, and that the plaintiff was en- titled by this admission on the pleadings to a decree for dissolution.) Tildesley vs. Harper, L. B. 7 Ch. D., 403 ; s. c, 38, L. T. B. W. 8. 60. (Action to set aside a lease. Allegation that defendant bribed one of the plaintiffs, a trustee, to grant him a lease. Denial following the actual words of the allegation. Held, evasive.) [Eev'd in L. B. 10 Oh. D., 393 ; s. c, 26 Moah's Eng., 782, on the ground that it was error to refuse leave to amend.] S. P., Schuey vs. Schaeffer, 130 Pa. St., 16; s. c. as Appeal of Schuey {Pa., October, 1889), 18 Atl. Bep., 544, 546. \_Gontra, of an answer denying "each and every statement and averment, and every part of the same, in said amended complaint as therein stated or otherwise." Kingsley vs. Gilman, 12 Minn., 515. Dole vs. Burleigh, 1 Dah., 227. (Denial of, etc., in manner and form as therein set forth, bad.) Breckinridge vs. Am. C. Ins. Co., 87 Mo., 62. (Action on policy: denial of " the destruction of said property as al- leged," bad.) Stewart vs. Budd, 7 Mont., 573 ; s. c, 19 Pacif. Bep., 221. Dimon vs. Dunn, 15 W.Y., 498 ; rev'g Dimon vs. Bridges, 8 How. Pr. {N. Y.), 16. (Foreclosure. The complaint set forth the condition of the bond, and alleged that the mortgage was executed " with the same conditions as the said bond." The answer denied that the mortgage contained the condition, repeating it as stated in the complaint. HM, insufficient on demurrer. It was not a denial that the mortgage contained, by reference to the bond or otherwise, substantially the same condi- tion. To raise that issue, the defendant should have denied the deeds, or set forth the condition of the mort- gage in JicEC verba,tha,t the Court might see what it was.) Doll vs. Good, 38 Cal., 287. (Allegation that A and B con- veyed to for $7,750, Denial that A and B or either § 586.] FoEM OF Denial; and Admissions by Bad Denial. 485 of them conveyed to C for $7,750 or any other sum, Tidd, an admission of conveying, and only a denial of all consideration.) Baker vs. Bailey, 16 Barb. {N. Y.), 54. (Allegation of as- sault on a specified day and at a specified place, and consequent death on another specified day. Denial that on the day first named, at the place named or any other place, defendant made the assault, or that on or about the day last named death occurred, — held, an admission that defendant committed the assault, and defendant could not give evidence that death was from another cause.) s. P., Schaetzel vs. Germantown, etc., Ins. Co., 22 Wise, 412. PhcBnix Ins. Co. vs. Trustees of Beechland Grange, 7 Ky. L. J., 670. (Action on fire policy. Allegation that " all the facts," connected with the title to the property were made known to the defendant. Denial that " cdl the facts " were made known to it, held, not a denial that any particular fact was made known.) [For other cases see Blankman vs. Vallejo, 15 Cal., 638 ; King vs. Bay, 11 Paige (JV. Y.), 235 ; Harris vs. Shontz, 1 Mon. T., 212 ; Toombs vs. Hornbuckle, id., 286 ; Caul- field vs. Sanders, 17 Gal., 569 ; Higgins vs. Wortell, 18 id., 330 ; Sheldon vs. Middleton, 10 Iowa, 17.] [Contra. In Wall vs. Buffalo Water Works Co., 18 N. Y., 119, rev'g 1 Duer, 585, it was hdd that a denial " that plaintiff, without any fault or want of care on his part, did fall therein," not having been moved against as in- definite or uncertain, was a " good denial " of plaintiffs allegation of his having fallen into the ditch ; and judg- ment was reversed for holding the contrary. Opinion by BoosEVELT, J. Denio, J., in a well-considered opinion dissented, and Haeeis, J., concurred with him. The opinion of Denio, J., is more in accordance with later cases and with common practice, and agrees much better with decisions in other States. See Hineken vs. Mutual Benefit Life Ins. Co., 6 Lam. {N. ' Y.), 21, 24 (aff'd in 50 N. Y., 657, without noticing this point), and cases cited under § To the contrary, however, also is Parker vs. Tillinghast, 1 JS', Y. State Bep., 296, where, in an inferior court, a denial by a rehearsal of the allegations of the complaint in all its details, was held good, in an action for work, labor, and services. To the same effect was Elton vs. Markham, 20 Barh., 343, holding that au objection on this ground is a formal 486 Abbott's Brief on Pleadings. Issues of Pact. [§ 587. one, and unless raised by motion before the trial, will be waived, and each allegation regarded as controverted. In Pfaudler Process Fermentation Co. vs. McPherson, 20 State Rep., 473 ; s. c, 3 N. Y. Supp., 609, it was hdd that to a complaint alleging that on or about a day specified, defendants entered into an agreement with plaintiff that, etc., stating it by legal effect, an answer denying that on or about the day specified, or at any other time, they entered into an agreement with, etc., stating it in the same terms as in the complaint, is not a mere negative pregnant and therefore an admission of the allegation ; but sufficiently manifests an intent to deny some substantial part if not all of the contract, and to put plaintiff to a motion to make more definite and certain, if he is embarrassed ; and if he does not move before trial, the defect may be cured by allow- ing amendment at the trial to make a distinct issue ; and plaintiff cannot object that he is surprised, or that such an amendment is improper as allowing a new de- fence to be interposed. § 587. Negative pi'egnamt. — An answer which confines itself to denying, in the same words, an allegation of the complaint, and does not attempt to deny its substance and spirit, admits the substantial matter of the averment and only raises an immaterial issue. James vs. McPhee, 9 Colo., 486 ; s. c, 13 Pacif. Rep., 585. (An answer which confines itself to denying, in the same words, the allegations of the complaint, and does not attempt to deny their substance or spirit — e.g., a denial that dR a debtor's property was assigned to the plaintiff suing as an assignee ; or that defendant re- quested the plaintiff to deliver a specified number of bricks sued for — is bad as being evasive and tendering immaterial issues. Judgment for plaintiff on plead- ings reversed, because another defence set up was sufficient. Leffingwell vs. Griffing, 31 Oal., 231. (Action to recover $3000 as money had and received. Denial " that he received $3000 in gold coin, parcel of the $65,000, to and for the use of the plaintiff." HM (on appeal from judgment), bad (1) The complaint did not charge that the $3000 sued for was parcel of $65,000. The traverse, therefore, was pregnant with an admission that the $3000 had been received as charged. (2) The § 588.] FoKM OF Denial; asd Admissions by Bad Denial. 487 denial that the $3000 was received in gold coin involved the admission that the $3,000 was received in either one of the other two forms of lawful money.) Castro vs. Wetmore, 16 Gal, 379. (Denial of the mak- ing and delivery of the note on the day mentioned raised an immaterial issue as to time, and was not a denial of the substantial matter of the averment.) Landers i;s. Bolton, 26 (7a?., 393, 416. (Action to quiet title : denial that the premises were conveyed " to the defendant for the sum of $7750, or for any other sum." Held, only a denial of a conveyance for a sum of money, and not of the material part of the allegation of the answer that the premises had been so conveyed.) Harden vs. Atchison & N. E. B. Co., 4 JVeb., 521. (Alle- gation that " defendant carelessly, negligently, and wantonly ran its engine and cars over and upon plain- tiff's mare," etc. Denial that the " defendant carelessly, negligently, and wantonly ran over said mare." Seta, error to instruct the jury that this denial put the plain- tiff upon proof of his case, of injury to his mare by the defendant's engines or cars ; and failing to prove it, to give a verdict for the defendant. The denial of de- fendants was but a denial of negligence, and not a denial that the defendant occasioned the injury complained of. " A defendant must answer the charges directly without evasion, and not by way of negative pregnant." Citing 1 Van Santvoord's Uq., 204 ; Moak's Van Sant. PI, 814 ; Baker vs. Bailey, 16 Barb., 56 ; Fish vs. Eedington, 31 Cal., 194 ; Bobbins vs. Lincoln, 12 Wise, 8.) [Contra, Wall vs. Buffalo Water Works Co., 18 N. Y., 119, cited under last section.] § 588. M)asive denial — not covering the allegation. — A denial which is not as broad as the allegation cannot be extended by implication to cover the whole, but the part not covered stands admitted. Denying part of an allegation, without more, is an admission of the residue.^ But a denial Avhich is express and sufficient as to the main part of the allegation, and necessarily implies the falsity of the residue, may be sufficient as to the whole.^ Anderson vs. Black, 70 Cal., 226 ; s. c, 11 Pac. Bep., 700. (Holding that to an allegation that defendants had done a specified wrongful act and threatened to continue to do it, a denial that they had done it does not raise any 488 Abbott's Beief on- Plbadikgs. Issues of Pact. [§ 588. issue as to the threatened continuance ; and therefore that defendants could not complain that the judge made no finding on that question when the jury found a ver- dict against defendant on the legal issues.) Norris vs. Glenn, 1 Idaho, 590. (Action for damages for building a dam across a stream passing through plaintiff's lands and flowing them. Held, not error to refuse to give instructions upon an assumption that an issue had been raised as to the existence of a water- course through plaintiff's land. There was no such issue. The answer only denies building a dam across any watercourse running through plaintiff's land. It concedes there is such a watercourse. This evasive form of denial has long been held bad where the com- plaint is sworn to, both at common law and under the Code. Citing Smith vs. Eichmond, 15 Cat., 501 ; Wal- lace vs. Bear E. W. & M. Co., 18 Gal., 461.) Beyre vs. Adams, 73 loiva, 382. Breckinridge vs. Am. C. Ins. Co., 87 Mo., 62. (Action on policy : denial that plaintiff consented to alleged as- signment, and that its agents had authority to consent, held, an admission of the agency and the existence of agents' written consent, and a denial only of their authority in the particular case.) Under an allegation as to the place where the accident occurred, and the defective condition of which caused the injury, describing the place as " at the crossing belonging to such railroad," — held, that an answer denying the defect but not denying the ownership admitted the ownership. Spooner vs. Delaware, Lacka- wanna & Western Eailroad Co., 115 JV. Y., 22, 31 ; s. c, 23 N. Y. State Hep., 554. So held especially where evi- dence of subsequent reconstruction by defendant, which would have been competent as tending, to show owner- ship, was excluded on defendant's objection. Bussell vs. Eussell, 4 Dana {Ky.), 40, 42. (Allegation that certain letters were received from defendant. Denial of writing, without denial of sending them, hM, obviously evasive.) Eichardson vs. Smith, 29 Col., 529. (Allegation that " plaintiff was the owner and in possession of the prop- erty," is not put in issue by a denial that "plaintiff was the owner and entitled to the possession of the property.") Churchill vs. Bennett, 8 How. Pr. {N. Y.), 309. (Creditor's suit. Allegation that the assignees never had actual possession. Answer alleging that they took possession and had at all times had exclusive direction, control, § 590.] Form of Denial; ai^d Admissions by Bad Denial. 489 etc.; tliat the assets were honafide surrendered into the possession of the assignees, — hdd, on motion as to in- junction, an admission that the assignees never had actual possession, for the answer might be true, having reference to legal possession.) ' Eobinson vs. Commercial Exchange Ins. Co., 1 Abb. Pr. N. S. {K T.), 186. (Allegation that defendants sold plaintiffs' property for a certain sum, and that they " have had the use of, and interest on, said money since it was received as aforesaid by defendants for the plain- tiffs' use." Denial that they sold plaintiffs' property, or received therefor any money whatever to plaintiffs' use, held sufficient. Monell, J., said: "The denial of the substantive cause of action is enough to controvert all the mere incidents to it.") § 589. Addition. of hypotheiical or contingent avoid- ance. — Under the New Procedure, a g6od denial is not vitiated by adding a contingent or hypothetical avoidance of the matter already denied. A denial that defendant ever made or joined in making the note in question, adding that if his name appeared on it, either as maker or indorser, it is a forgery, is a specific denial of the allegation of the signature. It is not averring a legal conclusion. Ludlow vs. Berry, 62 Wise, 78 ; 22 North West. Rep., 140. For other authorities see §§ 533-549, Allegations tendering issue, and §§ 642-649, Inconsistency. § 590. OonjuncPive denial of conjmiction. — Negative pregnant. — To an allegation stating several facts con- junctively, a conjunctive denial only denies the conjunc- tion and is not a denial of the separate existence of either fact. Thus to an allegation that defendant took and de- tained, a denial that he took and detained avails as an admission that he took, or that he detained, according as may be most favorable to the case of the plaintiff, and only denies that defendant did both.^ But if an allegation states conjunctively several facts 490 Abboit's Brief ok Pleadings. Issues of Fact. [§ 590. all of whicli are together essential to constitute a mate- rial allegation, a conjunctive denial is good.* ' Moser vs. Jenkins. 5 Oreg., 447. Eichardson vs. Smith, 29 Cal, 529. (Allegation that " de- fendant wrongfully took the property from the plain- tiff's posession, and from thence to the time the action was commenced, wrongfully detained the same prop- erty from him." Denial " that defendant at any time wrongfully took and detained the property from the plaintiff." Hdd, that the allegation was admitted.) Kay vs. "Whittaker, 44 N. Y., 565. (Foreclosure. Allega- tion that the bond contained condition for payment of principal on default in interest, and that the mortgage contained the same condition. Denial that " the bond and mortgage " contained such a condition. Held, only a denial that both instruments contained it, and there- fore an admission that the bond contained it, and as a mortgage is controlled by the bond it refers to, the denial was frivolous.) Davis vs. Mapes, 2 Paige {N. Y.), 105, 108. (Walwoeth, Ch., says : " As a general rule, when the charge in the bill embraces several particulars, the answer should be in the disjunctive, denying each particular, or admitting some and denying the others, according to the fact." [Citing 1 Grant's Ch. R., 148 ; Hoffman Chy. {N. Y.), 263.]) PuUen vs. Wright, MMinn., 314 ; s. c, 26 North West. Rep.^ 394. (Defendants deny that they warranted and repre- sented that said chest of tea was full and wholly occu- pied by tea, and that said baking power and molasses was good and merchantable. This admits the war- ranty. So of a denial that they warranted " all of said property." [Citing Pottgieser vs. Dorn, 16 Minn., 209.]) For other cases see Blood vs. Light, 31 Cal., 115. (Action to abate nuisance.) " Miller. w. Tobin {Circ. Ct. D. Oreg., 1883), 18 Fed. Rep., 609, 614. (Where the sufficiency of an allegation that land was swamp-land and overflowed depended on the concurrence of both facts, a denial that it was swamp- land and overflowed was held good.) 1 cutty PI, 16 Am. Ed., * 664. (Allegation in plea that ditches, ways, and passages were so filled with water that the defendant could not carry off his tithes : denial in replication that the ditches, ways, and passages were so, — hdd, though in the conjunctive, sufficient on § 593.] Form of Denial; and ADiiissiONS by Bad Denial. 491 demurrer ; because the plea was one entire matter of excuse, and the defendant relied on the whole and not on each particular part being impassable.) § 591. Disjunctive denial. — A conjunctive allegation is put in issue by a disjunctive denial. For instance see Hughes vs. Chicago, etc., Ey. Co., 45 JV. Y. Super. Ct. {J._ & S.), 114, 126. (Here, to an alle- gation in a complaint that the net earnings of a rail- road company were over a specified sum, and more than sufficient to pay a specified debt, an answer deny- ing that the net income with or without regard to in- terest was over such sum, or that it was more than sufficient to pay such debt, was hdd proper in form.) § 592. Surplusage 'in denial. — A denial sufficient in itself is not vitiated by the addition to it of any matter not abridging or qualifying it, although not needed to support the denial. Simmons vs. Sisson, 26 N. Y., 264. § 593. Refusal to admit. — An express refusal to ad- mit cannot avail as a denial/ even though coupled with an expressed reservation of the right to give counter-evi- dence.^ ' Townshend vs. Townshend, 1 Abh. N. O. {N. Y.), 81. (Hold- ing that an answer which "neither admits nor denies" does not let in the objection that a deed relied on by plaintiff is void.) [For other cases, see Irish vs. Pheby {Nebr., 889), 44 Worth West. Bep., 438 ; Bomberger vs. Turner, 13 Ohio St., 263 ; Tabb vs. Tabb, 82 Va., 48. Contra, Knapp vs. Slocomb, 75 Mass. (9 Gray), 73.] ' Cheever vs. Wilson, 9 Wall. {U. S.), 108, 122 ; s. c, 19 Law Ed., 604. (In an action based upon a decree, an allega- tion by defendant that he " does not admit the validity or regularity of said decree," or that "it is operative to iffect his rights," but, on the contrary, "reserves to himself the right to impeach it, if occasion should offer and require him to do so," is too vague and indefinite to have any effect, and does not allow him to assail the 493 Abbott's Beibf on Pleadings. Issues of Fact. [§ 594. decree. Swayne, J., said : " If he desired to assail the decree, he should have stated clearly the grounds of objection upon which he proposed to rely. The aver- ments should have been such that issue could be taken upon them " [citing White vs. Hall, 12 Ves. 324.] ) § 594. Mere call for proof. — ^A call for proof of an allegation, though coupled with an insufficient denial^ does not serve as a denial, but is an admission of tlie al- legation. Eyan vs. Anglesea E. Co. {N. J., 1888), 10 Cent, 887 ; s. c, 12 Atl., 539. Bentley vs. Dorcas, 11 Ohio St., 398, 408. Building Association vs. Clark, 43 Ohio 8t., 427; s. c, 1 Western Rep., 337, 341; s. c, 2 North East. Rep., 846, 850. (Here the plaintiff's reply, referring to an allega- tion in the answer, said : " That plaintiffs have no means of knowing, except from the allegations of said answer, anything in regard to the following allegation therein contained" [quoting it], and, "therefore, cannot admit or deny the same, but demand proof thereof." Held, no denial, but an admission, which dispensed with proof.) § 595. Submission to court. — An answer (other than in behalf of an infant or other person non suijv/ris) sub- mitting to the court the question whether a document alleged and admitted to have been executed is valid, raises no issue, unless the facts bearing on the question of validity are stated. Armstrong vs. Lear, 8 Pet. (U. S.), 52. (Question of foreign law, as affecting validity of will.) Watson vs. Hawkins, 60 Mo., 550. (Question of jurisdic- tion of coiirt by which a former judgment was rendered.) § 596. Admission of some such a contract admits cor- rectness. — An express admission of an instrument like that alleged, even though coupled with a denial of all else/ or a denial that its terms are correctly and fully stated, is an admission of it as alleged,^ and dispenses with proof. § 598.] FoEM OF Denial; and Admissions by Bad Denial. 493 • Millville Manufacturing Co. vs. Salter, 15 Abb. N. C, 305 ; s. c, 1 How. Pr., N.S., 495. (Admission of the accept- ance of " a draft similar to the one set forth in the com- plaint," with a denial of all else and an allegation that the acceptance thereof was for the accommodation of the drawer and without consideration. Held, that the acceptance of the draft in suit was admitted, and it was error to dismiss the complaint at the trial for failure to prove the fact.) Moody vs. Andrews, 39 N. Y. Super. Ct. {J. & S.), 302 ( [af- firmed, it seems, in 64 N. Y., 641, but without opinion]. An admission of making a note "like that" mentioned in the complaint, and a denial of everything else, admits the note alleged and dispenses with proof.) 'Wallach vs. Commercial F. Ins. Co. of N. T., 12 Daly {N. Y.), 387. (Fire policy. The Court say that it is impos- sible from this form of denial to ascertain what is denied to be correct and what is alleged to be incom- plete. The plaintiff was not bound to prove the policy, it not being denied.) § 597. Denial of correctness of copy. — A denial that the copy, set forth m or annexed to the complaint, of the instrument on which the action is brought, is a correct copy, without showing that it is incorrect in any particu- lar material to the action, is an admission of the correct- ness of the copy so far as material. Denver & New Or. Constr. Co. vs. Stout, 8 Oolo., 61 ; s. c, 5 Facif. Hep., 627. (Holding that it is not enough to add that " important parts of the instrument are omitted.") Eoberts vs. Societa Anonima, 53 N. Y. Super. Ct. {J. & S.), 424, 428. Wallach vs. Commercial Fire Ins. Co., 12 Daly {N. Y.), 387. Bentley vs. Dorcas, 11 Ohio St., 398, 408. s. p., Knerr vs. Bradley, 105 Pa. St., 190. (Such denial in an affidavit of defence, coupled with statement of a material clause omitted, sufficient.) Cordra, Haberkorn vs. Hill, 2 N. T. Supp., 243., (where, at special term, such a denial was said to be a denial of the agreement.) § 598. Cka/ving lea/ve to refer. — A statement in plead- ing that the party asks to refer to the original of a docu- 494 Abbott's Bbief oif Pleadings. Issues of Fact. [§ 599. ment set forth by his adversary's pleading, is not a denial ci the contents, but an admission. Murray vs. N. Y. Life Ins. Co., 9 Abb. K C, 309 ; s. c, 85 N. Y., 236, 240 ; rev'g 19 Hun, 350 ; Hughes vs. CMcago, etc., Ey. Co., 45 iV. Y. Super. Ct. {J. & 8.), 114, 122; Eoberts vs. Societa Anonima, 53 id., 424; Millville Manuf. Co. vs. Salter, 15 Abb. N. C, 305 ; s. c, 1 Hoiv. Pr. N. S., 495 ; Wallach vs. Commercial Fire Ins. Co., 12 Daly, 387. In Barnard vs. Wieland {Chan. Div., June, 1882), 80 Weekly Rep., 947, defendant's statement of defence craved leave to refer to the deeds alleged in the statement of claim, and, save as by such deeds, when produced, should ap- pear, not admitting that the same were to the purport or effect as mentioned in the statement of claim. Held, that the execution of the deeds was sufficiently ad- mitted, and that on their production plaintiff was en- . titled to judgment. Chitty, J., said : " The admission amounts to this : ' There were such deeds of the dates and made between the parties mentioned, but we are not sure what the deeds are.' " § 599. Direct allegation to contrary. — A. denial which is in the form of a direct allegation to the contrary of that of the adversary is a good denial, although the word "denial" or its formal equivalent be not used.^ Other- wise of the mere statement that the contrary of an allega- tion referred to is true.® ' Perkins vs. Brock, 80 GaL., 320. (The Court say : "It is not essential that a traverse should be expressed in negative words. An averment in the answer of the contrary of what is alleged in the complaint has been held to be equivalent to a denial." Citing Miller w. Brigham, 50 Vol., 615 ; McDonald vs. Davidson, 30 Cat, 174 ; Thompson vs. Lynch, 29 Col., 189. Affirmed.) Burlington, etc., R. E. Co. vs. Young Bear, 17 Nebr., 668 ; s. c, 24 North West. Bep., 377. (To an allegation that the property is unlawfully detained by defendant, and that plaintiff is entitled to the immediate detention of the same, an allegation in the answer that the property was not unlawfully detained by the defendant, nor was plaintiff entitled to the immediate possession of the same, is sufficient.) 'Slmy'sEq.Pl.,'^^. § 600.J Form of Denial; and Admissions by Bad Denial. 495 Homire vs. Rodgers, 74 Iowa, 395. (Action for an excess of money paid on a contract made with the intestate of plaintiff by the defendant for herding cattle. Answer that the defendant was entitled under the contract to the amount he had collected. Held, error to instruct jury that the defendant must establish that he was entitled to all the money that he had collected. The plaintiff had alleged that he was entitled to a smaller amount. Defendant was not obliged to answer affirmatiyely as he did. A general denial would have been sufficient and made the issue. The burden was on the plaintiff to prove his allegation. That the answer was made as it was did not change the rule. Therefore reversed.) Walker vs. Johnson, 2 McLean ( U. S. Cir. Ct), 92. (Al- legation in plea that diligence was used : reply alleging negligence. But the Court say plaintiff should have negatived the allegation of diligence.) [See next sec- tion.] § 600. Different version not a denial. — Allegations giving a different version of the transaction from that alleged by plaintiff do not avail as a denial. There must be an express traverse of plaintiff's version ; otherwise plaintift''s version stands admitted, notwithstanding the defendant's allegations inconsistent therewith. McDonald vs. Salem Capital Flour Mills Co., 31 Fed. Sep., 577, 579. (Hearing on plea.) First Natl. Bk. vs. The Same, id., 580. (These cases hold that a plea which attempts to controvert a fact by simply alleging a fact contradictory thereof is not sufficient ; the plea must go further, and directly negative or traverse the facts inconsistent with the fact alleged.) West vs. Am. Exch. Bk., 44 Barb. {]V. Y.), 175, 179. (Action against bank »s collecting agent. Allegation of employ- ment and undertaking not denied, except by alleging that defendant was the agent of an intermediate bank, and paid the proceeds to that bank. Sdd, no denial. James C. Smith, J., said that what merely implies that the allegation is controverted, or justifies an inference that such is or will be claimed to be its effect, will not be construed as a denial.) Followed in Fleischmann vs. Stem, 90 N. Y., 110, 114 ; s. c, 15 N. Y. WeeMy Dig., 274; aff'g 24 Sun, 265; s. c, 61 How. Pr., 124. (Usury.) 496 Abbott's Brief on Pleadings. Issues of Fact. [§ 601. "Wood vs. Whiting, 21 Barb. {N. Y.), 190. (Action for money received as collecting agent.) The rule was the same at Common Law. 1 Chitt. on PI, 16 Jm. ed,_* 561. United States vs. Buford, 3 Pet, 1% 31. (Allegation in plea that the money paid was that of M., and paid as his private transaction. Replication that it was the money of the United States, and advanced by him as an officer to an officer.) The ruling in Gilbert vs. Cram, 12 How. Pr., 455, that an allegation that the credit on which goods were bought had not expired, was a specific denial of an allegation of indebtedness for the goods alleged to have been sold, is disapproved in GovM on PI, 316, n. ix. But a denial of the transaction alleged lets in evidence of a different version (see § — ). And in Landis vs. Morris- sey, 69 Ccd., 83 ; 10 Pacif. Rep., 258, where the com- plaint alleged sale and defendant's promise to pay the price whenever requested, a denial was held to let in evidence of unexpired credit ; and judgment was reversed for error in excluding it. § 601. Giving different version of does not change hwrden of proof . — Defendant, by alleging as if it were an affirmative defence matter whicli is only a traverse of the necessary allegations of tlie plaintiff, and therefore might be proved under a general denial, does not relieve plaintiff' of the burden of proving those allegations if they are sufficiently denied. Homire vs. Eodgers, 74 Iowa, 395 ; s. c, 37 North West., 972. (The complaint alleged in effect that the plaintiff's intestate took cattle to pasture and turned them into a pasture leased of the defendant, and that the owners of the cattle, relying on the statement of the defendant, had paid to him an amount in excess of what was due him for the use of pasture, and asked judgment for such excess; The defendant in his answer affirmatively pleaded that the money collected was no more than was due him under the contract with the plaintiff's in- testate. BeM, the whole question as to what compen- sation the defendant was to receive would have arisen under a general denial of the plaintiff's averment. The affirmative allegation in the answer did no more than raise that question ; and the fact that the matter was pleaded in that form did not change the burden § 603. J Poem of Dbkial; and Admissions by Bad Dbkial. 497 of proof. Judgment reversed for error in charging the jury otherwise.) S. P., Page vs. Merwin, 54 Conn., 426 ; s. o., 8 Atlantic Hep., 675. (In an action for slander the Court committed no error, at the trial, in expunging from the record cer- tain parts of the answer that contained nothing but de- tailed statements of the circumstances attending the transactions, in course of which the complaint alleged the slanderous words were uttered, where all the cir- cumstances could be proved under the general denial. Judgment affirmed.) Simmons vs. Sisson, 26 N. T., 264. § 602. Different version cov^led with denial. — A differ- ent version coupled with an allegation that the facts were as thus stated and not otherwise, is a denial, not an ad- mission, of plaintiff's version.^ But if defendant alleges a different version, adding " and he therefore denies," etc., the denial is to be inter- preted as only a conclusion of the pleader ; and is insuffi- cient, if the facts of which it is predicated are insufficient.^ • Siter vs. Jewett, 33 Oal., 92, 96. " Baltimore & O. E. E. Co. vs. "Walker, 45 OUo St., 577 ; s. c, 19 Ginn. WeeEy L. BuL., 413. (Dictum) § 603. Denial upon infm^mation and belief. — A denial expressed to be upon information and belief is good,^ even in the pleading of partners denying an alleged partnership transaction,^ or a pleading of a corporation denying an alleged corporate transaction,'^ ' After a period of much conflict in the cases in New York, this rule is now settled. Bennett vs. Leeds Mfg. Co., 110 JSf. T., 150; s. c, 14 N. Y. Civ. Fro. B., 443 ; 13 Centr. Rep., 143 ; 16 N. Y. State Bep., 841, 17 Worth East. Rep., 669. This accords with the doctrine of the note in 14 Abh. N. C, 819 And the ruling is so completely in accordance with justice and sound reason that it must prevail wherever the form of this statute does not clearly forbid. 498 Abbott's Bbibf on Plbadikgs. Issues of Pact. [§ 603. Leyner vs. Fuller, 67 Iowa, 188 ; s. c, 25 North West. Bep., 123. (Complaint to quiet title by impeaching a' decree as a pretended decree because plaintiff had no notice of the proceedings ; answer denying knowledge or informa- tion suiScient to form a belief as to whether he had notice, etc., other than is shown by the recitals in the decree [which recited due service, etc.], and on such knowledge defendants upon information and belief averred that he had notice. Held, a good denial of the want of notice ; distinguishing Manny vs. French, 23 Iowa, 250, and Claflin vs. Keese, 54 Iowa, 54:4, s. c, 6 JV. W. Bep., 729, as cases where denial related to knowl- edge only, saying nothing of information.) Mair vs. Forbes {Vol.), 21 Pac., 552. (Not officially re- . ported.) Stacy vs. Bennett, 59 Wise, 234 ; s. c, 18 Worth West. Bep., 26. Miller vs. District of Columbia, 5 Mackey (D. C), 291 ; s. c, 14 Tf^ash. L. Bep., 746. (Conceding this to be the rule, but holding that such a denial, being hearsay, is not proof under the equity practice.) So a statement "upon information and belief that no allega- tion of the complaint is true," is a good denial. Metraz vs. Pearsall, 5 Abb. N. C, 90. ' Wood vs. Eadure, 39 Hun {N. T.), 144. (The Court say : The defendant answering may have positive knowledge that he did not sign the note himself. He may have no knowledge as to whether or not it was signed by the other member of the firm. He may, however, have been informed by the other member of the firm that he had never signed or delivered such a note ; having con- fidence in the statements of his copartner, he has information which he believes, to the effect that the note was never signed by either of the firm. He could not truthfully say that he had no knowledge or informa- tion sufficient to form a belief, because he has been informed and believes that his copartner never signed the note. Can it be that it was intended to deprive him of the right to put in issue and raise the question as to whether or not the note was a forgery ? We think not ; to our mind section 524 makes clear his right to deny upon information and belief, when he has such informa- tion and belief and has not positive knowledge.") Brayley vs. Hedges, 52 loioa, 628 ; s. c, 3 Iforth West. Bep., 652. (So held of an answer by partners ; and even under statute requiring denial under oath in order to let in evidence controverting execution of contract.) But one defendant cannot swear to the want of sufficient § 605. J FoEM OF Denial; and Admissions by Bad Denial. 499 information to form a belief on the part of a co-defend- ant. Kinkaid vs. Kipp, 1 D-mr {N. Y.), 692 ; Eichards vs. Frechsel, 14.Ahl. N. C, 316 n.; s. a, 5 Civ. Pro. R., 430. (So holding against motion for judgment on answer as sham and frivolous.) The fact that a denial in a pleading verified by the party, is expressed to be on information and belief, is suffi- cient reason (in case of doubt) for construing it as admitting allegations relating to personal acts of the party. ' Ruling in practice not reported. As to exception in case of matters presumably without the party's knowledge, see § § 604. State cov/rt practive in Federal court. — To plead to the jurisdiction in a court of the United States, a denial of knowledge or information sufficient to form a belief as to the jurisdictional allegation, — for instance citizenship, — in the complaint, is not enough, even though such a denial is good in a State court. The plea must be " certain to a certain intent " in every particular. Cuthbert vs. Galloway, 35 Fed. Bep., 466. [^Compare § 509. § 605. Denial of Tenowledge or ivformaPion sufficient, etc. — An allegation that the defendant has " no knowl- edge or information sufficient to form a belief as to the truth of " a specified allegation, is a good specific deniaL' And an allegation that he has "no knowledge or informa- tion sufficient to form a belief as to any of the allegations in said complaint contained," is a good general denial.* For this purpose knowledge and information sufficient etc., must be distinctly negatived. Neither a denial of knowl- edge sufficient, etc.,^ nor a denial of information sufficient, etc.,^ win alone raise an issue. '•? ' Jackson Sharp Oo. vs. Holland, 14 Fla., 384. Oarr vs. Bosworth, 68 Iowa, 669; s. c, 27 North West. Rep., 913. (Action to quiet title.) 500 Abbott's Beibf on Pleadings. Issues of Fact. [§ 605. Maxim vs. Wedge, 69 Wise, 547 ; s. c, 35 North West. Bep., 11. (Trespass to real property.) Dickinson vs. Gray {Ky., 1888), 9 South West. Bep., 281. (Holding that under Ky. Code Oiv. Free, § 113 — ^which allows, as to facts not presumptively within the party's knowledge, a denial that he " has sufficient information or knowledge to form a belief" concerning them — a plea that he has " no knowledge or information " is sufficient.) ' Grocers' Bank vs. O'Eorke, 6 Hun {N. Y.), 18. s. p., Meehan vs. Harlem Savings Bank, 5 id., 439. [In some States incorporation cannot be thus denied.] ' Mead vs. Day, 54 Miss., 58. Heye vs. Bolles, 33 How. Pr. {N. Y.), 266. Sayre vs. Gushing, 7 Abb. Pr., 371. (Even saying defendant does not know of his information or otherwise, is not a denial.) First Nat'l Bank vs. Clark, 22 iV. Y. Weeldy Dig., 569. Bradford vs. Geis, 4 Wash. C. Gt., 513. Terrill vs. Jennings, 1 Mete. {Ky.), 450. ("That he knows nothing on the subject of his own knowledge " does not raise an issue.) First Nat'l Bank of Eichfield Springs vs. Clarke, 22 H. Y. Weeldy Dig., 569. Contra, in Ohio, McKenzie vs. "Washington, etc., Ins. Co., 2 Disney (Ohio), 223. ' Claflin vs. Eeese, 54 Iowa, 544. (Foreclosure. Hdd, not error to refuse defendant's request for a jury. There was no allegation of the answer sufficient to raise an issue. He states that he had no information sufficient to form a belief, etc. He should have denied that he possessed any knowledge or information sufficient to form a belief. Citing Bev. Code, § 2655 ; Manny vs. French, 23 Iowa, 250. Affirmed/) Elton vs. Markham, 20 Barb. {N. Y.), 343. Lloyd vs. Burns, 38 N. Y. Super. Ct. {J. & 8.), 423 ; [aff'd, it seems, in 62 N. Y, 651, without opinion.] Greer vs. City of Covington, 83 Ky., 410. (Suit to collect taxes. Held, not error to strike defendant's answer that he " has no information sufficient to, found a belief upon, that any of the ordiniances mentioned in plaintiff s amended petition were ever published as required by law." This was but a statement of the party's want of information of the law.) Hastings vs. Gwynn, 12 Wise., 750. Contra, in Ohio, Treadwell vs. Commissioners, 11 Ohio St., 183. § 609. J Form of Denial; and Admissions by Bad Denial. 501 § 606. — except from specified sources. — A denial of knowledge or information sufficient to form a belief as to an alleged fact, except from specified documents, without stating what that information is or what part of the alle- gation is intended to be excepted, is an admission of the whole allegation. Eienzle vs. Barker {N. J. Eg., 1886), 4 Atl Bep., 309 ; s. c, 3 Gent. Bep., 375. Cuyler vs. Bogert, 3 Paige {If. Y.), 186, 188. § 607. — and therefore denies the same. — When a de- nial of knowledge or inforrnation sufficient to form a belief is properly made, it is not necessary to add " and therefore denies the same.^ " When it is not proper, or is defec- tively stated, it is not aided by such addition.^ ' Meehan vs. Harlem Savgs. Bk., 5 Hun {N. T.), 439. Sackett vs. Havens, 7 Abb. Fr., 371, note. Flood vs. Eeynolds, 13 How. Pr. {K F.), 112. (So held denying motion for judgment for frivolousness.) ' The HoUaday Case {O. Ct. Oreg.), 27 Fed. Bep., 830, 841. s. p., Claflin vs. Eeese, 54 Iowa, 544 ; s. c, 6 North West. Bep., 729. San Francisco Gas Co. vs. San Francisco, 9 Oal., 453. (Here the decision seems to rest in part on the objec- tion that the denial was general and not specific.) § 608. Denial in olterTiatvoe in respect to hnoy)ledge, etc. — A denial expressed in the alternative as " either upon his own knowledge, or as having no knowledge or in- formation sufficient," etc., is an admission, especially when plaintiff was entitled to a verified answer. Sheldon vs. Sabin, 12 Daly {N. T.), 84 ; s. c, 4 Civ. Pro. B., 4. (Holding it error to deny motion for judgment, for want of an issue. The law requires a denial that will probe the conscience.) 502 Abbott's Beief on Pleadings. Issues of Fact.. [§ 609. § 609. Matters presumptwely within the pleader's Tenowhdge. — Unless the statute of the State requires a different rule/ it is the better opinion that even where the allegation relates to matters presumptively vs^ithin the party's knowledge, a denial upon information and belief, and a denial of knowledge or information sufficient to form a belief are each sufficient to raise an issue if not objected to before trial.^ ' In Colorado the statute is qualified. Civ. Code, § 56; Sees. L. 1887. So in South Carolina. Hall vs. Woodward, 9 South East. Rep., 684. ' s. p., Leach vs. Boynton, 3 Ahh. Pr. N. Y., 1. The reason is that the statute in its usual form allows such a denial without exception, and the fact that the matters are presumptively within the party's knowledge does not make the denial any less explicit, but throws doubt on its truth or good faith ; and that the remedy to probe the party's conscience is by motion, when af- fidavits can be used. To the same effect as the rule in the text are Smalley vs. Isaacson, 40 Minn., 450; s. c, 42 JVorth West. Hep., 352, reversing judgment for error in this respect. Eichards vs. Frechsel, 14 Aib. N. C. (N. T.\ 316, n.; s. c, 5 Civ. Pro B., 430. Slater vs. Maxwell, 6 WaR. {U. S.), 268; s. c, 18 Law. Ed., 796. (Objection to evasive denial waived by replying ; but in Equity the evasiveness nevertheless enables plaintiff to prevail without the degree of evidence required to overcome a positive denial.) [Contra, Mead vs. Day, 54 Miss., 58 (reversing because the denial of knowledge was an admission) ; Douglass vs. Cline, 12 Bush {Ky.), 608. It was held an admission in Wing vs. Dugau, 8 Bush, 583, before the change in the Ky. statute.] In Morris vs. Parker, 3 Johns. Gh. {N. Y.), 297, exceptions to answer in chancery were overruled; but in Sloan vs. Little, 3 Paige {N. Y.), 103, that case was distinguished as one where the matters were not presumptively within defendant's knowledge ; and where they were, excep- tions were sustained. For the rule in Equity compare Brooks vs. Byam, 1 Story (U. S. a Ct.), 296, with Brown vs. Pierce, 7 Wall. {U. 8.), 205, 211. In Curtis vs. Eichards, 9 Col., 38 ; and in Fallon vs. Du- § 610.] FoEM 0-F Denial; astb Admissions by Bab Denial. 503 rant, 60 How. Ft. {N. T.), 178, such a denial of such matters was held demurrable. Warner vs. U. S. Land, etc., Co., 53 Hun {N. T.), 312; s. c, 6 N. Y. Supp., 411. (Concedes that a corporation is presumed to know acts done by itself ; but allegations that it is a foreign corporation, and the act was done at a remote agency, repels the presumption.) § 610. Jurisdiction. — General denial of citizenship. — At Common Law,^ and in Equity,^ an objection to the jurisdiction of a Federal court, founded on citizenship, if the citizenship giving jurisdiction appears by plaintifiE's pleadings, must be pleaded by defendant in abatement ; it cannot be first raised under the general issue at Com- mon Law,^ nor under an answer in Equity.* But under the statute requiring the Court to dismiss an action colorably brought, the Court may raise the ob- jection. ' Sheppard vs. Graves, 14 How. ( U. S.), 505. ° See note 4, below. 'D'Wolf vs. Eabaud, 1 Pet. (U. S.), 476, 498; De Sobry vs. Nicholson, 3 WaM. ( U. S.), 420 ; Sims vs. Hundley, 6 How. {JJ. 8.), 1 ; Jones vs. League, 18 id., 76; Boyreau vs. Campbell, McAU., 119 ; aff'd on other grounds, 21 How. ( U. 8), 223 ; Sheppard vs. Graves, 14 id., 505. ' Livingston vs. Story, 11 Pet. ( U. 8), 351. Dodge vs. Perkins, 4 Mas., 435. (The Court say : " A gen- eral answer admits that the plaintiff is rightfully in Court, and assumes that the Court have jurisdiction over the parties to hear and dispose of it according to the principles of a court of equity. . . . Before the Court can proceed to entertain any question upon the merits, it must know that it possesses the proper jurisdiction over the parties.") Wickliffe vs. O wings, 17 How. {U. 8.), 47. (Issue cannot be taken upon averments as to the citizenship in a bill in chancery by denial in the answer. By the 39th rule in equity practice in the United States courts " matters of abatement, objections to the character of parties, and to matters of form" are excluded from the answer, and its operation confined to matters in bar or to the merits of the bill.) 504 Abbott's Brief on Pleadings. Issues of Pact. [§ 6 11. § 611 — Denial of Citizenship; under New Proced/wre.— In an action of a common-law nature in a Federal court, — althougli in a State where the New Procedure has dis- pensed with pleading in abatement anything which is merely a denial of an allegation in the complaint,— a general denial of all the allegations of the complaint is held not enough to put in issue a jurisdictional allegation of citizenship. Draper vs. Springport, 15 Fed. Bep., 328, (but holding a specific denial sufficient.) Imperial Refining Co. v. Wyman, 38 Id. 574. (An objection to jurisdiction turning on the lack of diverse citizenship is not available in the Uiaited States courts under a general denial, even though such evidence would be competent under a general denial in a State court ; for the limited jurisdiction of the United States courts is such that it is necessary there should be a dis- tinct issue upon such a question, and therefore the State practice ought not to apply.) But the Court has power on its own motion, under the act of 1875, to direct an issue to be made to test the question of jurisdiction, and for that pur- pose the defendant should be allowed to plead in abatement. Ih. To avoid the abortion that must result from withdraw- ing the pleas to the merits and discarding all proofs that pertain to them, the Court may direct the jury to find a special verdict as to the citizenship of the parties. lb. Where the incorporation of the plaintiff iii a particular State is relied on for the purpose of showing citizenship in order to give jurisdiction, and it is shown to be a hmited partnership only, on a plea in abatement the Court may permit the plaintiff to amend its declaration by suing in the names of the persons who constitute the organization. lb. § 612. — form of denial of oiUzensJivp. — If plaintiflE's pleading alleges citizenship, an answer merely alleging that one of the parties is a citizen of a specified State dif- § 614.J Form of Denial; and Admissions by Bad Denial. 505 ferent from that mentioned by plaintiff's allegation, with- out denying plaintiff's allegation, is bad.' A denial that all the defendants are citizens of a speci- fied State, without alleging which are citizens of another, is bad.^ ' Brooks vs. Bailey, 20 Blatchf. {U. S.), 85. ' Hinckley vs. Byrne, Beady, 224. (An allegation in a plea in abatement that all the defendants in an action are not citizens of a certain State is bad on demurrer for uncertainty. The plea should state which of the defendants are not citizens.) § 613 — time of citizenship. — A plea to the jurisdiction of the United States Circuit Court on the ground of citizen- ship must show that the parties were citizens of the same State at the time the action was brought, and not merely at the time of the plea. MoUan vs. Torrance, 9 Wheat. {U. S.), 537; 6 Law ed., 154. (Error to overrule demurrer to the plea.) [Such precision is not required from plaintiff in alleging citizenship. See § 386, Demuebee to Complaint.] § 614. — Burden of proof as to jurisdiction. — At Com- mon Law the burden of proof is on a defendant who pleads in abatement that the Court has no jurisdiction, al- though the jurisdictional fact appear on plaintiff's pleading. Under the New Procedure, the better opinion is that if the fact is necessarily alleged by plaintiff", plaintiff has the burden of proof if it be put in issue. Gilmer vs. Grand Eapids {JJ. S. Cir. Ot. Mich.), 16 Fed. Rep., 708. 506 Abbott's Bbxef on Pleadings. Issues of Fact. [§ 510. 8. Admissions, and Shifting the Burden of Peoof by Unverified Denial. [What is here said under this head will be more useful to the reader if he observes that, on account of the great diversity in the phraseology of the statutes and the practice under them, this collection of provisions and cases forms an exhibit of comparative legislation and jurisprudence, which readily suggests the considerations of policy and justice to govern in doubtful questions under any statute. And in applying the general principles here stated, the practitioner should not fail to consider the terms of the particular statute under which he is proceeding.* The rules as to demurrer for failure to comply are un- der Demuekeb, §§ 234^254. Those which relate rather to the production of evidence under the issue, than to defining what the issue is, are under Eeception op Evidence. Some statutes requiring a sworn answer or an express deeial to put in issue an allegation of incorporation, or to exclude notary's certificate of service of notice, etc., since they are only appli- cable in particular classes of actions and not as general rules of pleading, are not specially treated here.] 615. Nature of the statutes requir- 626. — authority of agent. ing sworn denials. 637. — authority of corporate officers. 616. Necessary allegation to call for 628. Defect of parties. Question of sworn denial. ownership. 617. Execution, delivery. 629. Instrument executed by several. 618. Evasive or loose denial. 630. Not a partner. 619. Affidavit or pleading. 631. Instruments executed by third 620. Who may verify. person. 621 . Information and belief. 682. Revocation of authority. 622. Translation. 633. Lost instrument. 633. Signature by mark. 634. Plaintiff not the real party in 624. — abbreviation in name, mis- interest. nomer, and change of name. 635. Other issues. 625. — execution in firm name. 636. Amending. * In Equity, in the Federal courts, a plea must be sworn and filed. Rule 31. PDer vs. Levy, 17 Fed._ Rep., 609. In New York, an answer not involving the merits, must be verified (N. T. Code Cm. Pro., § 513), and this applies in actions in the Federal court (other than in equity, etc.); but according to the State court practice, lack of verifica- tion is waived unless the pleading is at once returned; or if it contain other defence, notice given of the defect and that the defence not involving the merits will be disregarded. § 615.] Shifting Bukdbn of Proof by Unverified Denial. 507 § 615. Nature of the statutes requiring sworn denials of written instruments and particular facts, etc. — In some of the States the object of these regulations is simply to put, upon the party denying without verification, the burden of proof to disprove the instrument. In others the object is to preclude all contention on the question at the trial, by making non-compliance with the statute equivalent to a conclusive admission of the instrument. The statute or rule of each State is construed and applied in view of the object thus intended. In the following list of States the names of those where the failure to deny under oath is generally an absolute admission of the instrument, are in italics. The statutes of several other States merely require pleadings generally, or denials generally, to be verified ; but these are not noted here. Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, Neio Mexico, Pennsylvania, Tennessee, Texas, Utah, Alabama, Arizona, Arkansas, California, Connecticut (notice only required), Delaware, Florida, Georgia, Iddhx), Illinois, Indiana, Iowa, Virginia Kansas, Kentucky, Louisiana (special yeri- WestVa. fication not required, but express admis- Wisconsin, sion or denial), Maryland, Massachusetts (special verification not required, but special denial and demand for proof), Alahama^-Gode of 1886, § 2676. "All pleas in abatement, unless it be of matter of record, pleas which deny the execution by the defendant, his agent, attorney, or part- ner, of any instrument in writing, the foundation of the (unverified plea of non est factum not receivable. As to signatures, unveri- fied, denial shifts burden of proof), 508 Abbott's Bbief on Pleadings. Issues of Fact. [§ 615. suit, or the assignment of the same, or which set forth an^ instrument in writing whether under seal or not, which is alleged to be lost or destroyed, and pleas since last continuance, must be verified by affidavit." Arizona — Revised Statute of 1887, § 735. " Any answer set- ting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit : ... 6. A denial of partnership as alleged in the complaint, whether the same be on the part of the plaintiff or defendant. ... 8. A denial of the execu- tion by himself or by his authority of any instrument in writing upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then de- ceased, the affidavit will be sufficient if it state that the affiant has reason to believe, and does believe, that such instrument was not executed by the decedent or by his authority. 9. A plea denying the genuineness of the indorsement or assignment of any written instru- ment. 10. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part." Arhansas — Mansfield's Digest, § 5055 ( Civil Code, § 135). " Every pleading must be subscribed by the party or his attorney, and the complaint, answer, and reply must each be verified by the affida\it of the party to the effect that he believes the statements thereof to be true ; such verification shall not make other or greater proof necessary on the side of the adverse party." Mansfield's Digest, § 2872 {Civil Code, § 578-580). " Where a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun." CaUfornia — Code Civ. Pro., §447. "When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is an- nexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the an- swer denying the same be verified." § 448. " When the defence to an action is founded on a written instrument, and a copy thereof is contained in the answer or is annexed thereto, the genuineness and due execution of such instrument are deemed ad- § 615.] Shiftijs'g Bukdbit of Peoof by Unvebifibd Denial. 509 mitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant." § 449. " But the execution of the instrument men- tioned in the two preceding sections is not deemed ad- mitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy upon the adverse party or his attorney, and filed with the papers in the case." , Colorado — Code Civ. Pro., § 62. "... When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is an- nexed thereto, the genuineness and due execution of such instrument is deemed admitted, unless the an- swer denying the same be verified." Connecticut— Practice Act (1879), § 25. § 3. " . _. . If the defendant intends to controvert the execution or delivery of any written instrument or recognizance sued upon, he shall deny the same in answer specifically." Delaware— Bev. Stat. 1874, p. 647, chap. 106, § 5. " In any action brought upon any deed, bond, bill, note, or other instrument of writing, a copy of which shall have been filed with the declaration, the defendant, not being an executor or administrator, shall not, on the trial, be allowed to deny his signature or that of any other party to the instrument, and the execution of such instru- ment shall be taken to be admitted, unless the defend- ant shall have filed an affidavit denying the signature, at the time of filing his plea, or within such further time as the Court shall, on motion, allow." Florida— McGleUan's Dig. (1881), p. 832, chap. 162, § 85. " It shall not be necessary for any person who sues upon any bond, note, covenant, deed, bill of exchange or other writing, whereby money is promised or secured to be paid, to prove the execution of such bond, note, covenant, deed, bill of exchange, or other writing, unless the same shall be denied by the defendant under oath." § 86. "... Nor shall it be necessary for the assig- nee or indorsee of any instrument assignable by law to set forth in the declaration the consideration upon which such assignment or indorsement was made, nor to prove such consideration, unless the same shall be impeached by the defendant under oath." § 88. "All promissory notes and other instruments of writing not under seal shall have the same force 510 Abbott's Brief on Pleadikgs, Issues of Fact, [§ 615. and effect as bonds and instruments under seal ; and it shall not be necessary for the plaintiff to prove the execution of any bond, note, or any other instrument of writing, purporting to have been signed by the defend- ant, nor the consideration for which the same was given, unless the same shall be denied by plea put in and filed as aforesaid : Provided, that nothing in this section shall prevent an executor or administrator from denying the execution aforesaid, or from pleading a want or failure of consideration, if he shall give in writing reasonable notice of such intention to the plain- tiff, his agent or attorney." § 89. " In all actions upon promissory notes and other instruments of writing wherein a total failure of con- sideration may be now pleaded, partial failure of con- sideration may be pleaded in such manner as is now provided for filing such pleas of total failure of con- sideration : provided, that the grounds of defence shall be fully pleaded." Oeorgia^Const. of 1877, Art. 6, § 4, par. 7. " The Court shall render judgment without the verdict of a jury, in all civil cases founded on unconditional contracts in writing, where an issuable defence is not filed under oath or affirmation." [What is an issuable plea. See Lanning vs. Lockett, 4 Woods, 455 ; s. c, 11 Fed. Rep., 814, aff'g 10 id., 451.] Code (1882), § 2851. " Non est factum. A party may deny the original execution of the contract sought to be enforced, or its existence in the shape then subsist- ing. In either event, if the contract be in writing, and so declared upon, the denial must be on oath and filed at the first term after the service is perfected." § 2855. " Indorsement, etc., not to be proved. An in- dorsement or assignment of any bill, bond or note, when the same is sued on by the indorsee, need not be proved unless denied on oath." Idaho— Rev. Stat. (1887), §4200. "When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such in- strument are deemed admitted, unless the answer de- nying the same be verified-" § 4201. " When the defence to an action is founded on written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution pf such instrument are deemed ad- mitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an § 615.] Shiftik^g Burden of Proof by Unvbkified Denial. 51 1 affidavit denying the same, and serve a copy thereof on the defendant." § 4202. " But the execution of the instruments men- tioned in the two preceding sections is not deemed ad- mitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in v^riting, served by copy, upon the adverse party or his attorney, and filed with the papers in the case." Jllinois — Hev. Stat., chap. 110, par. 34. {Cothran's Ann. ed., p. 1098) ; 2 Starr & C. Ann. Slat, p. 1798. § 34. " No person shall be permitted to deny, on trial, the exe- cution or assignment of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up by way of defence or set-off, or is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit, and if plaintiff, shall file his affidavit deny- ing the execution or assignment of such instrument : provided, if the party making such denial be not the party alleged to have executed or assigned such instru- ment, the denial may be made on the information and belief of such party." [§ 35. Dispenses with proof of partnership and giving names of joint payees, etc., in certain cases.] § 36. " In actions upon contracts, express or implied, against two or more defendants, as partners or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants, or their christian or surnames, shall not, in the first in- stance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar denying the partnership or joint lia- bility or the execution of the instrument sued upon, verified by affidavit." Under the above, § 36, which requires that if joint lia- bility is denied under oath, proof of such joint liability must be made by plaintiff, an instrument which on its face apparently imports a joint liability is admis- sible, and it is for defendant to adduce extrinsic evi- dence under his denial. Davis vs. Smith, 29 M. App., 313. [See also Forsyth vs. Doolittle, 120 JJ. S., 73, as to effect of omitting to deny.] [Application to partnership. Huntington vs. Chambers, 15 m. App., 426.] 512 Abbott's Brief on Pleadings. Issues of Fact. [§ 615. Jndianar—Sev. Stat, chap. 2, § 364. " Where a pleading IS founded on a written instrument, or such instrument is therein referred to, or when an assignment in writ- ing of such instrument is specially alleged in a pleading, such instrument or assignment may be read in evi- dence on the trial of the cause without proving its execution, unless its execution be denied by pleading under oath, or by an affidavit filed with the pleading denying the execution. And when a written instru- ment or assignment is so pleaded or referred to, proof of the names of the makers, assignors, obligors, assig- nees, payees, or obligees, shall not be necessary unless the same shall be denied by a pleading under oath, or by an affidavit filed as aforesaid. The oath, in case that the time of assignment is questioned, shall be that the party has reason to believe, and does believe, that the assignment was not made before the suit was com- menced ; but executors, administrators, or guardians need not deny the execution of an instrument, or the assignment thereof, under oath, but the samfe must be proved as if it were so desired. The party shall, in all cases, be entitled to an inspection of the instrument in writing, before pleading thereto." Iowa — Cbcfe, §2669; McClain's Ann. Code, 3875. "Every pleading must be subscribed by the party or his attorney, and when any pleading in a case shall be verified by affidavit, all subsequent pleadings except demurrers shall be verified also ; and in all cases of verification of a pleading the affidavit shall be to the effect that the affiant believes the statements thereof to be true." §2730. McClain's Ann. Code, 3937. "When a written instrument is referred to in a pleading, and the same or a copy thereof is incorporated in or attached to such pleading, the signature thereto, and to any in- dorsement thereon, shall be deemed genuine and ad- mitted, unless the person whose signature the same purports to be shall, in a pleading or writing filed within the time allowed for pleading, deny the genuine- ness of such signature under oath. If such instrument be not negotiable, and jJurport to be executed by a per- son not a party to the proceeding, the signature thereto shall not be deemed genuine or admitted if a party to the proceeding, in the manner and within the time be- fore mentioned, state under oath that he has no knowl- edge or information sufficient to enable him to form a belief as to the genuineness of such signature. The per- son whose signature purports to be signed to such § 615.] SHTPTriifG BUEDEH" OP PROOEBYUlifVBEIFIED DENIAL. 513 instrument shall, on demand, be entitled to an inspec- tion thereof." Kansas— Gen. Stats. (1889), 1 4191, Civil Procedure, § 108, " In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attor- ney, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney." § 109. " The verification mentioned in the last sec- tion shall not be required to the answer of a guardian defending for an infant or person of unsound mind, or a person imprisoned." § 111. " The affidavit shall be sufficient if it state that the affiant believes the facts stated in the plead- ing to be true." Kentucky Civ. Code, % 116, requires every written pleading to be verified, by an affidavit to the effect that affiant believes the statements to be true, with certain excep- tions, among which are : Subd. 3. " A pleading which states a cause of action that is founded on a written contract, or upon a written indorsement or assignment thereof, if it be filed with the pleading." Subd. 4. "A pleading which states a defence that is founded on a writing executed by the adverse party, and filed with the pleading." Louisiana — Code of Pract, Art. 324. ""When the demandis founded on an allegation, or an act under private sig- nature, which is alleged to have been signed by the defendant, such defendant shall be bound in his an- swer to acknowledge expressly or to deny his signature." Art. 325. " If the defendant deny his signature in his answer, or contend that the same has been counter- feited, the plaintiff must prove the genuiaeness of such signature, either by witnesses who have seen the de- fendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name." Art. 326. " The defendant, whose signature shall have been proved after his having denied the same, shall be barred from every other defence, and judgment shall be given agaiust him without further proceedings." Maryland— J'ub. Gen. Laws (1888), Vol. II., p. 1094, Art. 75, § 11. " No plea of non est factum shall be received in any action, unless the party for whom such plea be 514 Abbott's Brief ok Pleadings. Issues of Pact. [§ 615. tendered verify the same by affidavit, or unless the de- fendant being heir, executor, or administrator of the person alleged to have made the deed, obtain leave from the Court upon showing just cause to put in such plea." p. 1114, Art. 75, § 23, subd. 108. " Whenever the partnership of any parties, or the incorporation of any alleged corporation, or the execution of any written instrument filed in the case, is alleged in the pleadings in any action or matter at law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleadiiig of the opposite party or parties." [For previous statutes see Thorne vs. Pox, 8 Atl. Ben., 667.] Massachusetts— Pub. Stat. (1882), p. 967, chap. 167, § 21. " Signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set-off, shall be taken as admitted, unless the party sought to be charged thereby files in court, within the time allowed for an answer, a special denial of the genuineness thereof, and a demand that they shall be proved at the trial. Mwhigan — Circ. Ot. Bule 79 requires a sworn denial of execution by defendant, of an instrument on which he is sued, or it will be admitted. For the statute applicable to justices' courts, see How. St., § 6928. Mississippi — Rev. Code, p. 455, chap. 58, § 1633. " In suits founded on any written instrument set forth in the f. pleading, it shall not be necessary to prove the signa- ture or execution thereof, unless the same be denied by a special plea, verified by the oath of the party plead- ing the same ; and in no case shall it be necessary to ' prove any written signature, the execution of any instrument, or any identity or names of persons, or description of character, or the persons composing any firm or partnership, which may be set forth in the pleadings, unless the same be denied by special plea, verified by oath, as aforesaid. And the like rule shall prevail as far as may be applicable, in all cases where any writing is pleaded, or set up by the defendant, or any signature, identity, or names of persons, description of character, or partnership, set forth in his pleading." Mssouri—1 Eev. Stat. (1889), p. 566, § 2186. "When any petition or other pleading shall be founded upon any instrument in writing charged to have been executed by the other party, and not alleged therein to be lost or destroyed, the execution of such instrument shall be § 615.] Shifting Bueden of Proof by Unverified Denial. 515 adjudged confessed, unless tlie party cliarged to have executed the same deny the execution thereof, by answer or replication, verified by affidavit. . . ." § 2187. " The preceding section shall not be con- strued to authorize any instrument of writing to be received in evidence without proof of its execution, in any suit against an executor or administrator, or any other person representing the person charged to have executed such instrument, nor any county, city, or town, sued upon any instrument alleged to have been executed by such county, city or town,^ or any corporate author- ities." [This provision, introduced in 1868, changed the former statute, which only shifted the, burden of proof. McGill vs. Wallace (Mo., 188_6), ,4 Western Rep., 912; Smith Middlings P. Co. vs. Eembaugh, 21 Mo. App., 390 ; s. c, 4 West. Rep., 861.] Montana — Comp. Stat. (1887), § 97. "When an action is brought upon a written instrument and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed ■. admitted, unless the answer denying the same shall be verified." § 98. " When the defence to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted unless the plaintiff file with the clerk, within ten days after the filing of the answer, an affidavit denying the same, and serve a copy thereof on the defendant." § 99. " But the execution of the instrument men- tioned in the two preceding sections is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon de- mand, refused an inspection of the original." Nevada^ Gen. Stat. (1885), § 3075. "When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such in- strument shall be deemed admitted, unless the answer denying the same be verified." § 3076. " When the defence to an action is founded upon a written instrument, and a copy thereof is con- tained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the plaintiff file with the clerk, five days after the service of the answer, an affidavit denying the same." 516 Abbott's Brief oir Pleadistgs. Issues of Fact. [§ 615, New Hampshire— Court Bides of 1860, No. 44, provides that the signatures and indorsements of all instruments declared 'on will be considered as admitted at the first term, unless the defendant give notice upon the doct^et ■within the first four days of the term that they are disputed, and file his afiidavit within that time, that the denial is not for the mere purpose of delay. 41 N. New Mexico— Comp. Laws (1884), § 1914. " When any party to a suit, either as principal or security, or endorser, founded on any written contract, covenant or agree- ment whatsoever, shall deny his signature, he shall do the same under oath." § 1915. " In all cases where a suit has been insti- tuted upon any writing obligatory, or may be so instituted, the execution of the instrument shall be regarded as proven, and the plea of non est factum shall be regarded as unavailing, until the person filing such plea shall have made oath that he never executed the said instrument, nor authorized any person to execute it for him." (In Luna vs. Mohr, 1 Pacif. Sep., 864, Bristol, J., writ- ing the Court's opinion, says, arguendo : " A writing obligatory is a bond or some written obligation under seal. It is a term that is never applied to simple con- tracts, though they may be in writing. These twO' sections of our statutes are quite distinct and inde- pendent, and refer to two separate classes of written instruments. Section [1914] can only apply to simple written contracts, such as bills of exchange and promis- sory notes, and other written instruments not under seal. It specifically relates to the signature to any such simple contract of the party sought to be charged thereby, and the denial thereof by him, and to nothing else. The proper special plea under this provision of the statute would be that such signature is not the signature of the defendant. The plea that it is not his deed does not apply.") § 1922. " When a written instrument is referred to in a pleading, and the same or a copy thereof is incor- porated in or attached to such pleading, the genuineness and due execution of such written instrument and of every indorsement thereon shall be deemed admitted, unless in a pleading or writing filed in the cause within the time allowed for pleading the same be denied under oath : provided, that if the party desiring to controvert the same is, upon reasonable demand, refused an inspection of such instrument, the execution % 615.J Shifting Buedbn op Proof by Unverified Denial. 517 thereof shall not be deemed adtoitted by failure to deny the same under oath. Such demand must be in writing filed in the cause, ard served upon the opposite party or his attorney : provided, that the provisions of this section shall not apply to deeds of conveyance of real estate." J^ew York. A similar rule as to verification of plea denying a writing but applicable only where it appeared by the declaration or bill of particulars that the document was the only cause of action was in force for a short time in New York. Gen. Rule, May Term, 1840. 22 Wend., 644. Qode Civ. Pro., § 1776, dispenses with proof of incor- poration in an action by or against a corporation un- less the answer is verified and contains an affirmative allegation that the party is not a corporation. Id., § 923. Notary's certificate on protest presump- tive evidence unless an afiidavit (verified answer not sufficient) is served of non-receipt of notice. {The foregoing rules do not impair a pleading which does not comply, but only affect the question of evidence.] Id., § 513. A defence which does not involve the merits of the action shall not be pleaded unless it is verified. [The remedy is to return the pleading as a nullity, or if it contains other defences, to give notice that the unverified dilatory defence will be treated as a nullity.] Tennsylvania — The Act of March 28, 1835, § 2- {Brightly' s Purdon's Digest (1883), p. 1356), required as a condition of entering judgment in case of want of an affidavit of defence in an action on an instrument of writing for payment of money, on book debts, in sc. fa. on judg- ments, and on mechanics' liens, that " the said plaintiff shall, within two weeks after the return of the original process (have) filed in the office of the prothonotary of the court hereby erected, a copy of the instrument of writing, book entries, record, or claim on which action has been brought." By the Act of May 25, 1887, P. L. 271, § 3, in actions of assumpsit [which term by § 1 of this act includes what were formerly known as debt and covenant] plaintiff's declaration " should be accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any upon which the plaintiff's claim is founded, and a particular reference to such record, or to the record of any deed or mortgage or other instrument of writing recorded in such county, shall be sufficient in lieu of the copy thereof. " The statement shall be signed by the plaintiff or his 518 Abbott's Brief on Pleadings. Issues of Fact. [§ 615. attorney and in the action of assumpsit (as above de- fined) shall be replied to by aflSdavit." For the effect of these acts see Marlin vs. Waters, 24 WeeMy N. G., 129'; also see Detmold vs. Fisher, 3 Id., 667. [There are also special rules in Local Courts.] rewmessee— Code (1884), § 4525. "Every written contract, instrument, or signature purporting to be executed by the party sought to be charged, his partner, agent, or attorney in fact, and constituting the foundation of an action, is conclusive evidence against such party, unless the execution thereof isdenied under oath." § 4526. " If the party be dead, the personal repre- sentative may make the denial under oath, according to the best of his knowledge, information, and belief." § 4527. " The execution or assignment of instru- ments offered in evidence by the defendant, when allowed by law, is equally conclusive as when introduced by plantiff, unless denied under oath." § 4528. "Whenever two or more persons bring a suit at law as partners upon an account, bill of ex- change, bond or note, either before a magistrate or a court of record, it shall not be necessary for them to prove their partnership, unless the defendant files a plea in abatement, in writing, denying the partnership on oath." Texas — Bev. Stat. (1879), Art. 1265. " An answer setting up any of the following matters, unless the truth of the proceedings appear of record, shall be verified by affi- davit. . . " 6. A denial of partnership as alleged in the peti- tion, whether the same be on the part of the plaintiff or defendant." . . . " 8. A denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, aiid charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such in- strument in writing is charged to have been executed by a person then deceased, the affidavit will be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. " 9. A plea denying the genuineness of the indorse- ment or assignment of a written instrument, as required by Article 271. " 10. That a written instrument upon which a pleading is founded, is without consideration, or that the consid- eration of the same has failed in whole or in part." . . § 615.] Shifting Burden of Proof by Unverified Denial. 519 Article 271. " When a suit shall be instituted by any assignee or indorsee of any written instrument, the as- signment or indorsement thereof shall be regarded as fully proved unless the defendant shall deny in his plea that the same is genuine, and moreover shall file, with the papers in the cause, an afiidavit stating that he has good cause to believe, and verily does believe, that such assignment or indorsement is forged." Utah—Gomp. Laws (1888), § 3235. "When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is an- nexed thereto, the genuineness and due execution of such instrument are deemed admitted unless the an- swer denying the same be verified." § 3236. " When the defence to an action is founded upon a written instrument, and a copy thereof is con- tained in the answer, or is annexed thereto, the gen- uineness and due execution of such instrument are deemed admitted unless the plaintiff file with the clerk, within ten days after receiving a copy of the an- swer, an affidavit denying the same, and serve a copy thereof on the defendant or his attorney." § 3237. " But the execution of the instruments men- tioned in the two preceding sections is not deemed ad- mitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy, upon the adverse party or his attorney, and filed with the papers in the case." § 2306. " Checks, due bills, promissory notes, bills of exchange, and all orders or agreements for the pay- ment of money or other thing of value, may be made or drawn by telegraph. . . . Whenever the genuineness or execution of any such instrument received by tele- graph shall be denied on oath by or on behalf of the person sought to be charged thereby, it shall be incum- bent upon the party claiming under, or alleging the same, to prove the existence and execution of the origi- nal writing from which the telegraphic copy or dupli- cate was transmitted." Virginia— Code 1887, § 3279. " Where a bill, declaration, or other pleading alleges that any person made, en- dorsed, assigned, or accepted any writing, no proof of the fact alleged shall be required unless an affidavit be filed with the pleading putting it in issue, denying that such endorsement, assignment, acceptance, or other 530 Abbott's BiiiEP ow Pleadings. Issues of Fact. [§ 615. writing was made by the person charged therewith, or by any one thereto authorized by him." § 3278. "No plea in abatement or plea of non estfouc- tum shall be received unless it be verified by oath." West Virginia^Code 1887, c. 125, § 39. No plea in abate- meht or plea of non est factum shall be received unless it be verified by affidavit. § 40. Where a declaration or other pleading alleges that any person made, endorsed, assigned or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied by an affi- davit with the plea which puts it in issue. Wisconsin — Annotated Stat. (1889), § 4192. "Every writ- ten instrument purporting to have been signed or exe- cuted by any person shall be proof that it was so signed or executed until the person by whom it pur- ports to have been so signed or executed shall specifi- cally deny the signature or execution of the same by his oath or affidavit, or by his pleading duly verified ; but this section shall not extend to instruments pur- porting to have been signed or executed by any person who shall have died previous to the requirement of such proof." § 4193. " In all actions brought on promissory notes, or bills of exchange, by the indorsee, the possession of the note shall be presumptive evidence that the same was indorsed by the persons by whom it purports to be indorsed." There are other statutes requiring the pleadings generally to be verified (Colo. Code Civ. Pro, § 62), or " every pleading of fact " ( Wyoming Eev. Stat. 1887, § 2489), without special re- , ference to documents ; and such requirements — being kindred to the general principle of the Codes that if any pleading in a cause is verified, a responsive pleading must be — are not no- ticed here. For the application of such statutes to various instruments, in respects not of sufficient general importance to state at length, see Accounts — Eoss vs. Yeatman, 2 Swan {Tenn.), 144; Dial vs. Taylor, 8 Tex., 267. Accountable receipt — Douglass vs. Cross, 6 Coldw. ( Tenn.), 410. Acknowledgment or new promise — Atkinson vs. Atkinson, 2 Colo., 381. Assignment — Hall vs. Freeman, 59 Til., 55 ; Baird vs. Best, 13 m. App., 385 ; School Dist. vs. Carter, 11 Kans., 4A5 ; Klyce vs. Black, 7 Baxt. {Tenn.), 211. Assumption clause — Belton vs. Smith, 45 Ind., 291. § 615.] Shifting Bukden of Proof by Unvebified Denial. 531 Bill of lading — St. Louis, Iron Mountain, etc., Ey. Co. vs. Knight, 122 U. S., 79 ; 30 Laio ed., 1077 ; 7 Sup. Ct. Rep., 1132. Bond — Herrick vs. Swartwout, 72 III., 340. Collateral instruments — Stacey vs. Eandall, 17 lU., 467 ; Jessup vs. Gray, 7 Blackf. {Ind.), 332. Contract of carrier— Mo. Eiver, F. S. & G. E. Co. vs. Wil- son, 10 Kan., 105 ; Sawyer vs. Dulany, 30 Tex., 479. Contract of freightage — Jones vs. Walker, 5 Yerg. (Tenn.), Contract of partnership — Lewis vs. Lowery, 31 Tex., 663 ; Mobile & M. E. Co. vs. Gilmer, 85 Ala., 422 ; s. c, 5 So., 138. Declaration raising estoppel — Shirk vs. Williamson, 50 Ark., 562 ; s. c, 9 S. West., 307. Guaranty — Andrews vs. Congar, Sup. Ct. U. S., Oct., 1880 ; 1 Morrison's Transcrip., 29, (Jan., 1881) ; Martin vs. Culver, 87 III., 49 ; Partridge vs. Patterson, 6 Iowa, 514 ; Martin vs. Hazard Powder Co., 2 Colo., 596; Dietrich vs. Mitchell, 43 III., 40, (this latter case holding that a verified denial of the execution of a guaranty indorsed on a note requires plaintiff to give evidence not only of the signature, but of the overwriting, because an in- dorser in blank is presumed to be an indorser, not a guarantor). Indorsement — Smith vs. Harrison, 33 Ala., 706 ; Frazer vs. Brownrigg, 10 Ala., 817; Stebbins vs. Goldthwait, 31 Ind., 159; Berger vs. Henderson, 5 Black/. (Ind.), 545 ; Faught vs. Crosby, 5 Blackf. (Ind.), 554 ; Broy vs. Carpenter, 20 Ind., 255 ; Steinhelber vs. Edwards, 2 G. Greene (Iowa), 366 ; Grogan vs. Euckle, 1 Col., 158, and rehearing. Id., 193 ; Youngs vs. Bell, 4 Cal, 201. Indorsement irregular — Price vs. Lavender, 38 Ala., 389. Instrument under common counts — Hoard vs. Little, 7 Mick, 468; McMillen vs. Beach, 38 Mick, 397; Mc- Carthy vs. Neu, 91 III, 127. Insurance policy — Illinois Mut. F. Ins. Co. vs. Marseilles Mfg. Co., 6 lU., 236 ; Miller vs. Cohea, I La. 0. S., 486 ; Johnston vs. Ewing, etc.. University, 35 III., 518 ; Wil- lard vs. Trustees M. E. Church, 66 III, 55. Letters — Close vs. Judson, 34 Tex., 288 ; Eobinson vs. Dix, 18 W. Va., 528. Lost instrument — Erskine vs. Wilson, 20 Tex., 77. Memorandum — In Fulshear vs. Eandon, 18 Tex., 275, it was held that a memorandum containing the party's name as the contracting party, if delivered by him, was within the statute although not subscribed. Eeceipt indorsed on another instrument — Pears vs. Wil- 523 Abbott's Beief on Pleadings. Issues of Fact. [§ 616. son, 23 Kan., 343 ; May vs. Pollard, 28 Tex., 677 ; Fisk vs. Miller, 13 Tex., 224 ; Hendricks vs. Cameron, 2 Tex. App. Civ. Cos., § 351 ; Pierce vs. Northey, 14 Wis., 9. Sealed instruments— Clopton vs. Pridgen, 8 Tex., 308; Muckleroy vs. Bethany, 23 Tex., 163 ; Conner vs. Aut- rey, 18 Tex., 427 ; Harris vs. Cato, 26 Tex., 338 ; Lem- mon vs. Hanley, 28 Tex., 219. Subscription paper— "Unthank vs. Henry Co. T. Co., 6 Ind., 125. ^ Title deed— Bur kholder vs. Casad, 47 Ind., 418. As to what is a denial within the statute, see General denial. Mobile & M. K. Co. vs. Gilmer, 85 Ala., 43,2 ; s. c, 5 South. Bep., 138 ; Shirk vs. Williamson, 50 Ark., 562 ; s. c, 9 8. West. Rep., 307 ; Evans vs. South- ern Turnpike Co., 18 Ind., 101 ; Jones vs. Baker, 76 Iowa, 303 ; s. c. as Dickey vs. Baker, 41 N. W. Rep., 24 ; Hyde vs. Brown, 5 La. 0. 8., 33 ; Miller vs. Whitfield, 16 La. Ann., 10 ; Bennett vs. Allison, 2 La. 0. 8., 419. Won assumpsit — Templeton vs. Hay ward, 65 III, 178 ; Thornton vs. Alliston, 20 Miss., 124: ; Hinton vs. Hus- bands, 4 lU., 187 ; Knott vs. Planters' Bank, 2 Humph. (Tenn.), 493. Non estfactunv—Stsbte vs. Thompson, 2 Heisk. {Tenn), 147 ; Cleghorn vs. Eobison, 8 Ga., 559 ; Chambers vs. Games, 2 G. Greene {Iowa), 320 ; Longley vs. Norvall, 2 lU. (1 Scam.), 389 ; Baker vs. Spangler, Tappan { Ohio), 210 (plea with notice). Specific denial — Carle vs. Cornell, 11 Iowa, 374 ; Spooner vs. Gilmore, 136 Mass., 248 ; Douglass vs. Matheny, 35 Iowa, 112 ; True vs. Dillon, 138 Mass., 347. Denial not positive — Berry vs. Ferguson, 58 Ala., 314; Adamson vs. Wood, 5 Blackf. {Ind.), 448 ; Fannon vs. Bobinson, 10 Iowa, 272 ; Johnston Harvester Co. vs. Clark, 31 Minn., 165 ; s.c, 15 N. West. Rep., 252 ; Parr vs. Johnston, 15 Tex., 294 ; Smith vs. Ehnert, 47 Wis., 479. General issue with notice — Hunt vs. Weir, 29 lU., 83. Special plea of facts amounting to general issue — Bryan vs. Wilson, 27 Ala., 208. § 616. Necessa/ry allegation to call for sworn denial. — Statutes requiring a plea or answer denying the execu- tion of written instruments to be verified, may be held not applicable if the declaration or complaint ' to which the plea or answer is interposed does not aver " signa- § 616.] Shifting BuKCEii oe Proof by Unverified Denial. 533 ture " or " execution," or other fact distinctly bringing tlie case within the statute. ' Notice of special matter with declaration not a part of the declaration within such a rule. Garrett vs. Teller, 22 Wend. (iV. Y.), 643. Kelly vs. Paul, 3 Gratt. (Fa.), 182. (Action on draft, alleging that defendant made it, but not alleging that he or any person for him signed it. Seld, reversible error to admit it without proof of handwriting. Plain- tiff must show genuineness of signature if he does not allege that defendant signed or had it signed.) Washington vs. Hobart, 17 Kans., 275. (Allegation of transfer of the note sued on, with nothing to indicate that the transfer was in writing, not enough to call for sworn denial.) Pattie vs. Wilson, 25 Kans., 326. Shepherd vs. Frys, 3 Gratt. ( Va.), 422. (Holding that the Va. Act of Feb. 5, 1828 {Supp. Bev. Code, eh. 206, p. 265), dispenses with proof of handwriting only where the declaration alleges that defendant, or the person stated to have made the writing sued on, subscribed his name thereto ; and hence where there was no such allega- tion in an action on a partnership note, dissolution, with notice before the giving of the note, was available although there was no sworn denial of execution.) Peoria M. & F. Ins. Co. vs. Walser, 22 Ind., 73. (Policy not signed by the company's ofHcers, but only counter- signed by their agent, — JiM not " executed " within the meaning of the statute.) The provision of the Alabama Code, that in an action on a written instrument purporting to be signed by de- fendant, the instrument shall be admissible as evidence without preliminary proof of its execution, unless its execution is denied by plea verified by affidavit (§ 2770), should be construed to apply to a written instrument which, though not signed by defendant, is shown by "•"he averments of the complaint to be binding on him as the assignee or successor in law of the person who signed it. Mobile, etc., E. Co. vs. Gilmer, 85 Ala., 422 ; 5 South, 138. Edmonds vs. Montgomery, 1 Iowa, 143. (Execution of assignment of judgment not being denied, need not be proved, even though what purported to be an assign- ment was indorsed on the record of judgment.) In Nesbitt vs. Pearson, 33 Ala., 668, under a rule of court, it was hdd that a note unindorsed was admissible ia 534 Abbott's Brief oh Pleadings. Issues of Fact. [§ 617. the assignee's action without proof of ownership, be- cause assignment was not denied. § 617. Execution: delivery: seal. — Whetlier, under statutes requiring sworn denial of the "execution " of writ- ten instruments, failure to deny execution aifects the ques- tion of evidence or burden as to delivery or seal, compare Affirmative — Parkinson vs. Boddiher, 10 Colo., 503 ; s. c, 15 Fad/., 806. (Delirery.) S. p., Lloyd vs. Howard, L. J., 20 Com. L., 1. Ketcham vs. New Albany, etc., E. E. Co., 7 Ind., 391. [citing authorities] ; Miller vs. Voss, 40 Ind., 307. (In- dorsee against maker. Unsworn denial of execution ad- mits indorsement by payee as alleged, and if he indorsed it, he must have had it in his possession, and this raised prima facie presumption of delivery to him by maker.) Home Ins. Co. vs. Gilman, 112 Ind., 7. (Unsworn denial of execution of insurance policy precludes evidence of irregularity in delivery.) Phoenix Ins. Co. vs. Eowe, 117 Ind., 202 ; 20 N. East, 122. (So of authority to deliver.) City of Evansville vs. Morris, 87 Ind., 269, 277 ; s. c, 11 Wa^Ti. L. Rep., 600. The Court say : "If the answer had alleged that the bond was not signed by the appellees, or was not delivered by them personally, or by any person authorized to make the delivery, no one would pretend that such answer, in the absence of a verification, would be worth anything. Yet this answer alleges nothing more. It is true that it does not, in terms, allege that the person who made the delivery had no authority to make it, but the fact from which such conclusion is drawn, viz,, that the authority was given on Sunday, is averred, and this amounts to no more than an averment that the bond was delivered without authority." Sully vs. Goldsmith, 49 Iowa, 690. (Holding that a denial not of the " signature," as contemplated by the statute, but of the " execution," did not shift the burden of proof as to signature, but nevertheless allowed de- fendant to disprove the signature.) Hammerslough vs. Cheatham, 84 Mo., 13. (Holding that the statute only applies to the manual signing.) Nielson vs. Schuckman, 53 Wise., 638. (Holding that the sole object of Wis. R. S., § 4192, is to dispense with proof of the signature to a written instrument, where, § 618.] Shifting Bueden of Proof by Unverified Denial. 525 such signature has not been denied under oath ; and the words "executed" and "execution" in that section are used as strictly synonymous with " signed " and "signature.") In the case of a sealed instrument, the proper sealing is admitted. Chambers County vs. Clews, 21 Wall. ( U. S.), 317. Compare Holden vs. Jenkins, 125 Mass., 446. Negative — Cleghorn vs. Eobison, 8 Ga., 559. (Holding that if signing be not denied an allegation that delivery was without the signature of a co-surety agreed for, need not be verified.) Bryan vs. Kelly, 85 Ala., 569 ; s. c, 5 South. Rep., 346. Plaintiff suing on a constable's official bond, alleged that he was " required " to give it, but did not indicate the authority under which it was given. Hdd, that as its execution was not denied by sworn plea, nor its con- sideration impeached, it was admissible. § 618. Evasive or loose denial. — An evasive or loose denial vp^hich does not meet the requirement of the statute with reasonable certainty is not sufficient. Davis vs. Cleghorn, 25 III., 212. (Denial of handwriting, not a denial of signature.) Smallhouse vs. Thompson, 17 Ind., 204. (Allegation of notice from third person not to pay, not a denial.) Hasselback vs. Sinton, 17 Ind., 545. (" Did not undertake and promise as averred," not sufficient.) Framingham Bank vs. Gay, 75 Mass., 241. ("Does not owe in manner and form as alleged," not sufficient.) Sheldon vs. Middleton, 10 Iowa, 17. (Admitting similar one, but leaving plaintiff to prove identity, not suffi- cient.) Kinman vs. Cannefax, 84 Mo., 147. (Denying the making of any such note as alleged, but admitting a different one, not sufficient.) Luna vs. Mohr, 1 Paoif. Bep., 860; s. c, 1 West. Coast Hep., 673. (Action on bill of exchange. Plea that it was not his deed, bad.) Woods vs. Watkins, 40 Fa. St., 458. (Denying all recol- lection of having given or made, and denying consid- eration, not sufficient.) Wade vs. Pratt, 12 Heisk {Tenn.), 281. (Denial must suffice to support indictment for perjury.) School District No. 1 vs. Lyford, 27 Wise., 506. (Denial of executing such instrument to plaintiff, bad, because only denying identity of plaintiff.) 526 Abbott's Briep on Pleadings, Issues of Fact. [§ 619. Van Hook vs. Letchford, 35 Tex., 599. (Executor's denial of knowledge, etc., altliougli ha-ving some means of knowledge, not enough to " cast suspicion.") Snyder vs. Van Doren, 46 Wise, 602. (Denial of " execu- tion," not a denial of signature.) Spooner vs. Gilmore, 136 Mass., 248. (" Denies the sig- nature of the alleged note," etc., not a denial " of the genuineness of the signature.") Anderson vs. Sloan, 1 Volo., 484. (Denial of signature of instrument under slightly different name, bad.) Bancroft vs. Paine, 15 Ala., 834. (Denial of indorsement and title, etc., bad on demurrer, where statute requires affidavit to belief of forgery.) Montgomery vs. Culton, 18 Tex., 736. (Allegation that it was " fraudulently made " or that it was "pretended" not enough.) s. p.. White vs. Camp, 1 Fla., 94. (Holding that the affi- davit should not be in the alternative, nor double, but must apprise plaintiff what facts he would be required to prove.) Bentley -ys. Dorcas, 11 Ohio St., 398, 408. (Denial that the copy is a true copy, not enough, for it admits its legal effect.) The rule in Michigan is that the denial is not to be strictly construed, but is sufficient if it shows that the pleader intended in good faith to contest the question. Ander- son vs. Walter, 34 Mich., 113 ; McGormick vs. Bay City, 23 Mich., 457. What departure from the statutory or usual formula will vitiate a verification, see 1 Abb. New Pr. dt F., 500. § ^1^. A ffidaA)it or pleading. — Whether affidavit and verified plea (or answer) are mutually equivalent, so that either satisfies a requirement of the other, compare : Weaver vs. Carnall, 35 Arh., 198. (Holding that a statute requiring an affidavit is satisfied by a proper plea properly verified.) Bailey vs. Valley Nat. Bank, 127 lU., 332. (Holding that a plea which does not at common law raise the issue, accompanied by notice of denial and affidavit to the truth of the denial, is not enough.) Arnold vs. Eock Eiver Valley Union R. R. Co., 5 Duer (N. Y.), 207 ; Burrall vs. DeGroot, id., 379 ; s. p., 1857, Young vs. Oatlett, 6 id., 437 ; and see Pierson vs. Boyd, 2 id., 38. (Statute requiring affidavit denying receipt of § 631.] SHiFTitTG Burden of Pkoop by Unvbkieied Denial. 537 notice of protest by indorser, not satisfied by allegation in answer.) An affidavit of merit is not a sufficient affidavit. City of Central vs. Wilcoxen, 3 Colo., 566. Although a verified plea may be a sufficient affidavit of merits. Kimbark vs. Blundin, 6 III. App., 539. In Bailey m Valley Nat. Bank, 121 M., 332, it was held that a verified notice of special matter denying was not equivalent to a verified plea denying, though accom- panying a plea of non assumpsit.) § 620. WJio may verify. — Unless the statute other- wise indicates, the principles applicable to verification of pleadings generally may be applied.' Thus if the denial is by a person permitted to make it by the statute, it is no objection that he would not be competent to testify as a witness.^ If the party is a corporation, the oath may be by the appropriate officer or agent.^ ' In Kingsland vs. Cowman, 5 HiU {IST. T.), 608, an affidavit on information and belief verifying a plea of usury, re- lied on to enable the defendant to examine plaintiff under oath, was held insufficient, there being two de- fendants, and the facts of the defence peculiarly within the knowledge of one, while the affidavit was made by the other alone. " Hunter vs. Probst,47 Ind., 359; S.P., Abh. NewPr. & F., 25. ° See, for instance, Barrett Mining Co. vs. Tappan, 2 Colo., 124 ; Hitchcock vs. Galveston, 3 Woods. ( U. 8. G. Ct), 287; Eborn vs. Zimpleman, 47 Tex., 503. (Agent for administrator.) For excuse by reason of privilege against criminating one's self, see 2 Abi. New Pr. db F., 438. § 621. Information and helief. — Whether an oath on information and belief is enough, compare : Linch vs. Litchfield, 16 Brad. III. App., 612. (Action on a city officer's bond. Affidavit on information and belief merely, that the ordinances relied on had not been duly published, — held, not a sufficient denial, within the pro- vision of the city charter that an ordinance should be 528 Abbott's Brief on Pleadings. Issues oe Fact. [§ 623. admitted without proof of publication, "unless it is denied under oath."), Kingsland vs. Cowman, 5 Hill {N. Y.), 608. (A statute requiring the party " to verify the truth " of his plea, etc. (iV. Y. L., 1837, as to plea of usury), or " by affidavit prove the truth thereof or show some probable matter to the Court to induce them to believe that the fact of such dilatory plea is true " (4 & 5 Anne, c. 16, § 11), is not satisfied by oath to belief ; but " the affidavit must be positive as to the truth of every fact contained in the plea, leaving nothing to be collected by inference.") Brayley vs. Hedges, 52 Iowa, 623. (Holding that under Iowa Code, § '2730, — which provides that unless the genuineness of the signature of an instrument referred to in the pleadings be denied under oath, it shall be deemed genuine and admitted,— a denial of knowledge or information sufficient to form a belief is a denial ; and the effect of not verifying it is only to leave the burden of proof on defendant. [In Henry vs. Evans, 58 Id., 560, judgment given on the pleadings for plaintiff was sustained, when there was an unsworn denial on information and belief. But no evidence was adduced ; and the decision was therefore right under the rule laid down in Brayley vs. Hedges. But the Court seem inclined to place their decision on the idea that the omission to verify the denial was an omission to take issue. The point does not seem to have received much consideration, and Brayley vs. Hedges does not appear to have been referred to.] Gawtry vs. Doane, 51 N. Y., 84, aff'g 48 Barh., 148. (In- dorser's denial under N. Y. Code Civ. Pro., § 923, of receipt of notice of protest, made for the purpose of excluding proof of service by mere certificate of notary, must be positive, not on information and belief.) In Barker vs. Cassiday, 16 Barb. (N. Y.), 177, a denial in the form that the party has no " knowledge, recollection, or belief " of receiving a notice of protest was held sufficient to exclude the certificate ; the Court saying : " This is going about as far as most prudent and con- scientious men would be prepared to go in relation to the receipt of notice several years before." § 622. Translation. — Statutes requiring sworn denial of written instruments, in order to put them in issue or to require proof in the first instance from the party- pleading them, apply to an instrument in a foreign § 625.] Shifting Burden of Peoof'by Unvehified Denial. 529 language, even though a translation was pleaded as such, instead of pleading a copy in the foreign language ; and if the denial be not verified, the original stands admitted, or may be received, without proof of execution. Christenson vs. Gorscli, 5 loiva, 374. (Error to exclude.) § 623. Signature by ma/rk. — Signature by mark is a "signature" within the meaning of statutes requiring sworn denials of the signature of written instruments. Wimberly vs. Dallas, 52 Ala., 196. [Overruling, on this point, Flowers vs. Bitting, 45 Ala., 448.] Beickell, C. J., says : " It was not material how the note was signed, whether with a mark, or with the real name of the appellant, or with a fictitious name, or with any designation he had thought proper to adopt. Citing Brown vs. McClanahan, 9 Baxt. {Tenn.), 347. ' § 6^4. — abhreviation in- na'me; misnomer; and change of name. — Under such statutes, a defendant who has failed to verify his denial of a contract alleged to have been executed by him as in his full name, cannot exclude the original for variance because an initial was used in the signature, for execution is admitted.^ And the admission of execution includes an admis- sion of allegations, in the pleading which set forth the instrument, of a change of name made by the party executing it.^ ' Lee vs. Mendel, 40 lU., 359. Hunt vs. Eaymond, 11 Imd., 215. Frye vs. Menkins, 15 III., 339. (The misnomer here was idem sonans — Elnathan for L. Nathan.) 'Lawson vs. Sherra, 21 Ind., 363. (Marriage of female payee, and indorsement in married name.) § 625. — exeouUon injvrm nams. — If the instrument sued, on is pleaded as having been signed in an apparent partnership name, an allegation of execution by the de- 530 Abbott's Brief on Pleadikgs. Issues of Pact. [§ 625. fendants sufficiently implies partnership, and that the contract was within the scope of the business, or that it was specially authorized by each member ; and an ad- mission or denial of execution includes in effect an admission or denial of the necessary authority.^ And a defendant's denial that it was " executed by him or by any one authorized to bind him in the premises," is good.^ If the instrument is pleaded as having been signed by defendants severally, or as joint and several makers, with nothing to indicate partnership, the pleading does not. let in an instrument signed in an apparent firm name.^ ' Palmer vs. Scott, 68 Ala., 380. (Action on acceptance in firm name. Only defendant M. defended. The evi- dence showed the draft in suit was given by defendant S., M.'s former partner, for S.'s individual liability to an insurance agent for premiums collected by S. which were commingled with the firm's moneys without his knowledge or consent. Court charged that M. was not liable unless he knew of or consented to commingling of funds, or the acceptance. Held, error. This defence could not be made without sworn plea by M. denying his execution of the acceptance, and he interposed no such plea.) Thomas vs. Clark, 2 McLean (Z7. S. C. Ct.), 194. McGill ^5. Wallace, 22 Mo. App., 675. Williams vs. Gilchrist, 11 JV. H., 535. Memphis G. Sav. Inst. vs. Hargan, 9 Heisk. (Tenn.), 496. Drew vs. Harrison, 12 Tex., 279. Cleveland vs. Duggan, 2 Tex. App. Civ. Cos., § 82. 8. p., Buck vs. Smith, 2 Colo., 500. Holding that in an action upon a promissory note, executed in the firm name, a Verified plea denying its execution puts the partnership in issue.) An allegation of the indebtedness of the defendants, co- partners trading under a specified firm name, is a suffi- cient allegation of partnership, under the Maryland Statute of 1886, which provides that if the copartnership or incorporation of any of the parties is alleged, etc., it shall be deemed admitted unless there is an affidavit to the contrary. Thorne vs. Fox, 67 Md., 67 ; 8.O., 8 Centr. Bep., 302. § 636.] Shifting Burden of Proof by Unverified Denial. 531 ' Zuel vs. Bowen, 78 IJl., 234. Jolil vs. Fernberger, 10 Heisk. (Tenn.), 37. (On demurrer.) 8. p., of a denial as to a joint and several note. Ludlow vs. Berry, 62 Wise, 78. One defendant's sworn allegation that he was not a partner, is not a denial of execution. Ferguson vs. Wood, 23 Tex., 177. ' Neteler vs. Culies, 18 lU., 188. (Plaintiffs declared, in usual form, against defendants as joint and several makers. The note was signed by "Hurds & Neteler." There was no allegation that defendants were partners, or used the above signature. Defendants pleaded only general issue. The only evidence was a note signed as above. Held, error to overrule objection for variance. To dispense with proof, the note offered in evidence should have corresponded with the allegations. Re- versed, with leave to amend declaration.) § 626. — authority of agent. — If the instrument ap- pears to be executed for defendant "by an agent, an admission or denial of execution includes in effect an admission or denial of the authority of the agent. Sorelle vs. Elmes, 6 Ala., 706. (Plea that agent who signed had only conditional authority, and condition was not performed, amounts only to a denial of execution, and if not verified may be struck out.) Lee vs. Grimes, 4 Colo., 185. (In absence of sworn plea, not necessary to prove agent's authority.) Habersham vs. Lehman, 63 Ga., 380. Delahay vs. Clement, 3 HI. (2 Scam.), 575. Nimmon vs. Worthington, 1 Ind., 376 ; Denny vs. N. W. Christian University, 16 Ind., 220 ; Allen vs. Thaxter, 1 Blackf. (Ind.), 399. (JDeed alleged to have been executed by attorney in fact.) Austin vs. Townes, 10 Tex., 24 ; Eeid vs. Eeid, 11 Tex., 585 ; Herndon vs. Ennis, 18 Tex., 410 ; Brashear vs. Martin, 25 Tex., 202. Contra, Eiser vs. Snoddy, 7 Ind., 442 ; Bayly vs. Givens, 29 La. Ann., 546 ; Pope vs. Eisley, 23 Mo., 185. Compton vs. Western Stage Co., 25 Tex. Swpp., 67. (It was held that in a suit on a writing in which defendant's name nowhere appears, a general denial though un- sworn puts on plaintiff the burden to show the agent's authority to bind defendant.) Contra, Alabama, etc., Co. vs. Brainard, 35 Ala., 476. (Ac- 533 Abbott's Brief on Pleadings. issut?s of Fact. [§ 637. tion on a bill of exchange. HeM, that the peculiar terms of the former Alabama Code, which mention " all written instruments purporting to be signed by the defendant, his partner, agent," etc., construed in connection with other clauses, included one which did not purport but was alleged to be signed by the party or his agent, etc. § 627. — authority of corporate officers. Where, as in the case of a contract \>j a corporation, valid execution necessarily involves the authority of the agent or officer who performed the act, an admission or denial of ex- ecution includes in effect an admission or denial of the authority of the agent or officer signing. Montgomery & E. E. Co. vs. Trebles, 44 Ala., 255 ; Ox- ford Iron Co. vs. Spradley, 46 Ala., 98. Private corporations. 1 Mclntire vs. Preston, 10 III., 48. (Indorsement by secretary of note payable to corpora- tion. Held, that by failure to verify denial,the secretary's authority, and hence, the assignment from the company, was admitted, and the filling up by plaintiff of the in- dorsement so as to show it was made by the company, on the trial, was sufficient.) Walker vs. Krebaum, 67 III., 252 ; Goodrich vs. Reynolds, 31 III., 490. (s. p., indorsement by president.) Barnum vs. Kennedy, 21 Kan., 181. (Express allegation that president was authorized to assign a judgment, — Tidd, admitted by not verifying denial.) Patrick vs. Boonville Gas Light Co., 17 Mo. App., 462. Nicholas vs. Oliver, 36 N. H., 218. [The dictum here as to the effect of omitting to deny is criticised in 41 N. H., 32.] Pvblic corporations.] City of Central vs. Brown, 2 Col., 703. (City warrants issued by mayor and city clerk. Hdd, error to treat sworn denial of execution as an ad- mission of the officer's authority.) Clark vs. Des Moines, 19 loioa, 199. (Not error to treat unverified answer as admitting authority.) Clark vs. Polk County, 19 Iowa, 248. (Action on county warrants: same ruling, the Court holding that the re- quirement of verified denial applies to counties, as municipal corporations, as well as to natural persons.) Great Falls Bank vs. Farmington, 41 N. H., 32. (Action on note signed by town selectmen. Hdd, error to receive § 639.] Shifting Bueden of Pkoof by Unvbkified Denial. 533 eTidence tliat there was no vote recorded authorizing signing of notes by selectmen in the year the note in suit was made. Failure to give notice of denial, as pre- scribed by rule, admitted genuineness and due execu- tion.) [The Court discusses the question at length, ap- proving and following "Williams vs. Gilchrist, 11 N. H., 535, and examining Nicholas vs. Oliver, 36 N. H., 218, and criticising that case because of the attempt, by dic- tum of the judge, to qualify and limit the doctrine of 11 N. H., 535.] § 628. Question of ownership. — A plea that the note was not made to plaintiff, but to him and a third person, as partners, is in effect a denial of execution, within the meaning of statutes requiring a denial of a written instrument to be verifled. Fowler vs. Bender, 18 Ark., 262. [Compare Manning vs. Maroney, 87 Ala., 563 ; s. c, 6 South Bep., 343. (Indorsee against drawer of a bill of exchange. Hdd, proper to receive evidence of the bill of exchange (against objection that the indorse- ment on it showed that it was not defendant's property), because as the instrument was averred to be the property of the plaintiff transferred to him by indorsement of the payee, and there was no sworn plea denying owner- ship, the validity of the transfer could not be raised under the general issue. Code Ala. (1886), 2676, 2770; citing Agee vs. Medlock, 25 Ala., 281.] * § 629. Instrument executed by several. — Whether, in the case of an instrument executed by several persons, a sworn denial by one avails on behalf of the others, com- pare: Affirmative. — State ex ret Griswold vs. Blair, 32 Ind., 313. Wren vs. McLaren, 48 Mich., 197. Hogg vs. Orgill, 34 Pa. St., 844. Negative. — Pursley vs. Morrison, 7 Ind., 356. Taylor vs. Gay, 6 Black/. (Ind.), 150. Eobinson vs. Lair, 31 Iowa, 9. "Whether, where there are several defendants, and only one of them executed the instrument, his admission by fail- 534 Abbott's Bkibf on Pleadings. Issues of Fact. [§ 630. Tire to verify his denial dispenses with proof as against the others, query ? Chaytor . vs. Brunswick-Balke-Col- lender Co., 71 Tex., 588 ; s. c.', 10 South West. Rep., 250. In Walker vs. Sleight, 30 Iowa, 310^ it seems to have been held that a debtor sued by an assignee cannot, put in issue the assignor's signature even by a sworn denial under the statute, upon the ground that the signature can only be put in issue by the party whose signature it is alleged to be. In a suit upon an attachment bond, where the only issue is raised by the sureties' sworn plea of non estfojctum, proof of the execution by the parties interposing the plea is sufficient to entitle the plaintiff .to recover, with- out proving the signature of the principal if his liabil- ity is not in issue. Fitzsimmons vs. Hall, 84 111., 538. § 630. Not a partner. — If the instrument appears ta be executed by a firm, an admission or denial of execu- tion includes in effect an admission or denial of the part- nership, or of the membership of the pleader.^ The same principle applies where piartners sue on an instrument payable to the firm.* ' New York, etc. Co. vs. Meyer, 61 Ala., 325 ; Goetter vs. Head, 70 Ala., 532 ; Guice vs. Thornton, 76 Ala., 466^ Fairchild vs. Grand Gulf Bank, 6 Miss. (5 How.), 597. Phaup vs. Stratton, 9 Gratt. ( Va.), 615. Dissolution before execution not provable because execution not denied under oath. Allen and Daniel, JJ., dissented, being of opinion that " execution" means here only manual sig- nature.) [s. P., Thomas vs. Eeister, 3 Ind., 369. Revocation of agency.)] As to the rule where the denial or admission is by one partner only, see Vance vs. Funk, 3 M. (2 Scam.), 263 ; Stevenson vs. Farnsworth, 7 JU., 715 ; Davis vs. Scarritt, 17 lU., 202 ; Haskins vs. D'Este, 133 Mass., 356 ; and compare § 629. In Ferguson vs. Wood, 23 Tex., Ill, it was held that a. denial of ever having been a partner was bad, because it did not deny execution. " Rees vs. Simons, 10 Ind., 82 ; Fletcher vs. Dana, 4 Blackf. {Ind.), 2,11. § 631. Inst/rwments executed hy ihwd person — Sub- § 633.] Shifting Bukdbn of Proof by Unverified Denial. 53ff smhing witness. — Statutes requiring sworn denials of the execution of written instruments may, unless other- wise expressed, be constnied as not extending to the case of an instrument alleged as executed by a person not a party to the action ;* and as not applying to the signature of a subscribing witness.^ ' Heath vs. Lent, 1 Gal., 410. Grimsley vs. Klein, 2 111. (1 Scam.), 343. Mahon vs. Sawyer, 18 /wd., 73; Barnettw. Cabinet Makers' ■Union, 28 Ind., 254. Ashworth vs. Grubbs, 47 Iowa, 353. Bradford vs. Cooper, 1 La. Ann., 325. Swales vs. Grubbs {Ind., 1890), 25 North East. Bep., 877. (Heirs, etc.) [In Spicer vs. Smith, 23 Mich., 96, it was held that the statute did not apply to the indorsement of a third per- son under whom plaintiff claims title.] For a different, view see Belton vs. Smith, 45 Ind., 291. Ellis vs. Planters' Bank, 8 Miss. (7 How.), 235. Bennett vs. Logue, 29 Tex., 282. Teary vs. Cummins, 28 Tex., 91. (Title bond alleged to have been made by ancestor, — held, admitted for want of sworn denial.) Habersham vs. Lehman, 63 Ga., 380. (Holding that the Georgia Code, § 2855, applied though the name of the indorser purport to have been signed not by himself but by his agent or attorney in fact, and though the action be not against the indorser, but against the maker.) " The words in the Massachusetts Statute of 1877, ch. 163, — "any signature to a written instrument," — -do not apply to the signature of a witness, though essential to take the instrument relied on out of the statute of lim- itations. Holden vs. Jenkins, 125 Mass., 446. § 632. Revocation of authority. — In the case of an instrument alleged as executed by a third person in a representative capacity, an allegation of revocation of authority before the instrument was executed is in effect a denial of execution within the meaning of the statute. Thomas vs. Eeister, 3 Ind., 369. 536 Abbott's Brief on Pleadings. Issues of Fact. [§ 633. s. p., Phaup vs. Stratton, 9 Oratt. ( Va.), 615. (Dissolution of partnership.) § 633. Lost insl/rument. — Unless otherwise provided/ the statute applies to a lost instrument pleaded as such, and not denied under oath.^ ' Boylston vs. Siierran, 31 Ala., 538. ' Mays vs. Foster, 26 Kans., 518. § 634. Plaintiff not the real party in interest. — rif the instrument is pleaded in a manner to show apparent ownership in plaintiff, an admission or denial of execu- tion^ (or of assignment to plaintiff if he pleaded title by assignment), includes in effect an admission or denial of his ownership. If there be an admission of his ownership by failure to deny execution under oath, an unsworn allegation that he is not the real party in interest does not avail,^ even though coupled with an allegation that a third person is the real owner, if no facts substantiating such ownership are stated.^ ' Mobile Life Ins. Co. vs. Egger, 67 Ma., 134 ; Preston vs. Dunham, 52 id., 217. ° Tarver vs. Nance, 5 Ala., 712 ; s. p., Jennings vs. Cum- mings, 9 Port. (Ala.), 309. ' Monroe vs. Fohl, 72 Cal, 568._ But where plaintiffs own evidence showed that he was not owner, — heM, proper to instruct for defendant, though there was no sworn denial. Eakin vs. Burger, 1 Sneed {Tenn.), 417. § 635. Other issioes. — A verified denial of a written instrument is not impaired by other defences in the same answer containing admissions. Palmer vs. Poor, 121 Ind., 135 ; s. c, 6 Law. R. Anno., 469. § 636.] Shifting Btjkdek of Pboof bt Unverified Denial. 537 § 636. Amending. — If, after issued joined, plaintiff is allowed to amend by pleading for the first time the written instrument, defendant is entitled to amend by interposing a sworn denial.^ The power of the Court to allow amendment of plead- ings, extends to the case of an amendment by interposing a sworn denial of an instrument, the execution of which was admitted by omitting to verify a denial in the origi- nal pleading.^ Otherwise where the statute is so framed that the failure to interpose such a denial gives the adverse party the benefit of the admission as matter of right.^ ' McCarthy vs. Neu, 91 III, 127. (Holding it error to re- fuse defendant leave to amend.) ' Taylor vs. Oolvin, Wright {Ohio), 449. s. p., in Mass., where, however, the sworn denial is not per- haps part of the pleading. Ham vs. Kerwin, 146 Mass., 378. Anderson vs. Hance, 49 Mo., 159. (Error to refuse leave to amend where the defendant applying was not the party to the instrument, and excused his admission.) Stanton vs. Burge, 34 Ga., 435. (Executor allowed to file sworn plea by way of amendment, upon appeal.) Akin vs. Ordinary of Bartow County, 54 Ga., 59 ; Hayden vs. Atlanta Cotton Factory, 61 Ga., 233. (Filing sworn plea allowed at later term, although for the first time.) s. p., Benedict vs. Swain, 43 N. H., 33. (Holding that the rule of court should not be applied where the instru- ment had not been pleaded so as to afford opportunity.) In McPhaul vs. Lapsley, 20 Wall., 264, a tardy plea was held properly rejected. The ruling in Kingsland vs. Cowman, 5 Hill {N. Y.), 608, that the judge at the trial could not receive a new affidavit by way of amendment turned doubtless on the restricted power of circuit judges at that time. The " leave of court" which was there said to be necessary can now doubtless be granted at the trial. ' Thome vs. Fox, 67 Md., 67 ; s. c, 8 Atl. Eep., 667. 638 Abbott's Beief on Pleadings. Issues of Fact. [§ 637. 9. Statutory Teavekse op Answers anb Replies. § 637. New matter. § 640. Avoidance in form of counter- 638. Denial not equivalent to an af- claim. flrmative contrary allegation. 641. Counterclaim not properly 639. Denial in form of new matter. characterized in pleading it. § 637. New matter. — The Code performs, for plain- tiffs, the office of a pleader who can commit no mistake, in replying to an answer which sets up, by way of de- fence, new matter not constituting a counterclaim. Garner vs. Manhattan Building Asso., 6 Buer {N. Y.), 539. In some States all new matter in the answer is equally con- troverted. Arkansas — Mansf. Dig., Stat. 1884, § 5024 California — Civ. Pro., JDeering's Anno. Code 1885, § 462 Cheang Kee vs. United States, 3 Wall. {U. S.), 320 Idaho — Bev. Stat. 1887, § 4217; Louisiana — Voorhies Code ofPr. 1882, Art. 329. § 638. Denial not equivalent to an affirmative contrary allegation. — A specific denial in an answer, of an unneces- sary allegation of non-payment in the complaint is not equivalent to an allegation of payment. Hummel vs. Moore {U. 8. C. a., Colo.), 25 Fed. Bep., 380; s. c, 20 Reporter, 777. § 639. Denial inform of new m,atter.' — Under statutes to the effect that new matter in an answer is admitted by failure to reply, facts which are only a traverse of the complaint, and might be proved under a denial, are not deemed new matter, though alleged as if such, and are not admitted by failure to reply. Sylvis vs. Sylvis, 11 Colo., 319. Butler vs. Edgerton, 15 Ind., 15. Netcott vs. Porter, 19 Kans., 131. Engel vs. Bugbee, 40 Minn., 492 ; s. p., Pinger vs. Finger, id., 417. § 641.] Statutory Teatebbe of Akswbes and Ebplies. 539 Mauldin vs. Ball, 5 Mont., 96. (Citing many cases.) State vs. Williams, 48 Mo., 210. Watkinds vs. Southern Pacif. E. Co. {JJ. S. D. Ct. Oreg.), 38 Fed. Hep., 711; s. c, 4 Law i?. Armo., 239. s. P., Union Ins. Co. vs. Murphy (Pa., 1886), 4 Atl. Hep., 352. So also where an answer contained an admission of a supposed allegation of the complaint not actually con- tained therein, — held, that the admission was not an allegation needing a reply. Hoisington vs. Armstrong, 22 Eans., 110. § 640. Avoidance in form of counterclaim. — Under statutes to the effect that a counterclaim is admitted by- failure to reply, matter which is merely defensive, and does not in law amount to a cause of action against the plaintiff, is not admitted by failure to reply, even though the pleader has set it up as a counterclaim. Walker vs. Sioux City, etc.. Land Co., 66 Iowa, 751 ; s. c, 24 North West., 563. (Unnecessary prayer for cancel- lation of deed.) True vs. Triplett, 4 Mete. (Ky.), 57. First Nat. Bk. of Memphis vs. Kidd, 20 Minn., 235. (Mere equity reducing or avoiding plaintiff's demand not a counterclaim needing reply.) Barthet vs. Elias, 2 Abb. N. C. (N. T.), 364. (Answer setting up usury in bond and mortgage sued on, and praying they be • cancelled, not a counterclaim, because purely defensive.) s. P., Equitable Life Ass. Soc. vs. Cuyler, 75 N. Y., 511 ; aff'g 12 Hun, 247. Nichols vs. Boerum, 6 Abb. Fr. {N. Y.), 290. (Recoup- ment not a counterclaim, because merely defensive.) s. p., Cockerill vs. Loonam, 36 Hun, 353, n.; s. c, 20 WeeUy Big., 545. American Dock & Improvement Co. vs. Staley, 40 N. T., Super. Ct. (J. (ft 8.), 539. (Set-off needs no reply, be- cause purely defensive.) § 641. Gounterclaim not properly cha/racterized in pleading it — If it is doubtful whether the substance of an answer is a counterclaim or merely defensive, it can- not, upon the trial, be held a counterclaim and admitted by- failure to reply, unless the pleader has plainly character- 540 Abbott's Bkief on Pleadings. Issues of Fact. [§ 641, ized it on its face as such, so as to advise the adverse party of the necessity of a reply. BroTighton vs. Sherman, 21 Minn., 431. (To constitute new naatter set up in an answer a counterclaim, so as to require a reply, it must be pleaded as such.) Equitable Life Ass. Soc. vs. Cuyler, 75 JV. Y., 511 ; aff'g 12 Hun, 247. Avery us. New York Central & H. E. E. Co., 6 N. Y. Supp., 547 ; s. c, 24 State Eep., 918. (Plaintiff may give evi- dence in avoidance of the new matter, so pleaded, with- out a reply. Citing Acer vs. Hotchkiss, 97 N. Y., 395, 408 ; s. c, 20 Weeldy Dig., 452 ; Assurance Soc. vs. Cuy- ler, 75 id., 511 ; aff'g 12 Hun, 247 ; Arthur vs. Ins. Co., 78 id., 462 ; Keeler vs. Keeler, 102 id., 30 ; s. c, 23 Weekly Dig., 437.) McConihe vs. HoUister, 19 Wise, 269. Gunn vs. Madigan, 28 Wise, 158. (Answer in an action upon a written guaranty alleging that the writing did not express the intention of the party, and was signed by mistake, and also showing what the true intention was, but not stating that such allegations are made as a counterclaim, nor demanding any further relief.) Eesch vs. Senn, 31 Wise, 138. (In action on a promis- sory note, answer alleging " for a further defence " facts showing that the note was fraudulently obtained, and demanding that the complaint be dismissed and the note be delivered up and cancelled.) Stowell vs. Eldred, 39 Wise, 614. As to ambiguous pleading, see also the following cases : Acer vs. Hotchkiss, 97 N. Y., 407 ; s. c, 20 Weekly Dig., 452; Van Brunt vs. Day, 81 N. Y., 251; s. c, 8 Abb. N. C., 336 (Matter available alike as either, but not characterized in the pleading, Md, good as a counter- claim if the objection to the evidence at the trial was not put on the defect in the pleading.) Lancaster O. Mfg. Co. vs. Colgate, 12 Ohio St., 344. (Where the same matter pleaded as a counterclaim also con- stitutes a defence, the defence will not be disregarded upon the trial for want of reply.) Eoyce vs. Gibbons, 50 Hun, 341 ; s. c, 3 N. Y. Supp., 106 ; 20 State Rep., 9 ; Green vs. Waite, 33 Eun, 191 ; s. c, 19 Weekly Dig., 436. (Where matter which may constitute either a counterclaim or a defence is pleaded as a defence without designating it either as a defense or a counterclaim, it will be treated as a defence merely.) 642.] iNcoiirsisTBiircy in- a Pleading. 541 Alger vs. Vanderpoel, 34 N. T. Super, a. {J. & S.), 161. (Where no motion is made to compel an election, if it cannot avail as both, defendant is entitled to elect at the trial, even after he finds the fact unavailable in one aspect.) McCown vs. McSween, 29 S. C, 130. (An oral demurrer at the trial will not lie because the answer fails to sepa- rately state a counterclaim and a defence. The remedy for such defect should have been taken by motion to make more definite.) Commercial Bank of Keokuk vs. Pfeiffer, 22 Hun (N. Y.), 327, 337. (Where it was chai'acterized in both ways, the remedy for doubt is by special motion.) 10. Inconsistency in a Pleading. § 643. Inconsistent allegations in same § 646. Estoppel. count or defence. 647. Denial and separate admission, 643. Inconsistent allegations in sepa- — plaintiffs must give proof. rate causes of action. 648. Inconsistent in fact. 644. What is inconsistency. 649. Amending to cure inconsist- 645. Confession by avoidance. ency. § 642. Inconsistent allegations in same count or de- Qnce. — If one cause of action or one defence contains within itself allegations inconsistent with each other wMch cannot be harmonized as possibly both true in fact, by reasonable construction such as the advei'se party would be bound to act on in preparing for trial, that one is to be given effect which is least favorable for the pleader; and the pleading and proof of the adverse party are sufficient if they meet that one, disregarding the other.^ But nevertheless allegations either by a plaintiff^ or defendant * of two aspects or versions of the controversy, coupled with facts showing that upon either view he iS; entitled to prevail, may make a good issue as to both. 'Marshall vs. Drawhom, 27 G^a., 275. (Where a bill ia equity contains inconsistent statements, it is enough 542 Abbott's Brief on Pleadings. Issues of Fact. [§ 643. for the defendant to answer the weakest case stated against him.) Mech. Sav. & Bldg. Loan Ass'n vs. O'Conner, 29 Ohio St., 651, 655. (Action for purchase-money. One of the defences in the answer contained contradictory state- ments as to the existence and sale of one of the lots. Sdd, the existence and sale of the lot was admitted.) Board of Education vs. Shaw, 15 Kans., 33, 41. s. P., Fiske vs. Bailey, 51 N. Y., 150. (Allegation by plaintiff that defendant was the keeper of a public boarding-house. Defendant denied this, but added an allegation that plaintiff was unlawfully on defendant's premises. Hdd that defendant's title was admitted, and only the keeping of a public boarding-house was denied.) In Herman vs. Bencke, 8 J^. Y. State Bep., 345, N. T. City Ct., an answer which alleged that the note was deliv- ered "without value," and on "promises and consid- erations which have failed," — held, a contradiction in terms, and no obstacle to directing judgment. [If the question arose at the trial, the defendant ought to have been allowed to give evidence, or at least to amend.] Otherwise perhaps of an inconsistency between a descrip- tion of a party in the introductory clause, as a citizen of one State, and a direct allegation in the body of the declaration that at the times material to jurisdiction he was a citizen of a different State. Bailey vs. Dozier. 6 How. {U. S.), 23; s. c, 12 Law. ed., 328. ' See §§ 99, 336, 416, Demueeee, and note in 24 Abb. N. C, 321. ' See § 460. § 643. Inconsistent allegations in separate cattses of action. — Where a complaint contains several causes of action, an allegation in one of which is inconsistent with an allegation in the other, a defendant who without ob- jection answers and goes to trial, cannot object that the issue taken as to either cause of action is waived by the inconsistent allegation in the other. [Whether this applies to a verified complaint, qtiery .?] Hall vs. Clement, 41 W. H., 166 (1860). (Bell, C. J., says : " An admission made in one count or plea has never § 644 J In-coksistency in a Pleading. 543 been held here to conclude the party upon any other plea.") s. p., Northern Pacific E. Co. vs. Paine, 119 U. S., 561. s. p., Starkweather vs. Kittle, 17 Wend., 20. {Dictwii by Bronson, J. : An admission in pleading is evi- dence against the party making it on the trial of the particular issue to which the admission relates ; but an admission in one count of a declaration is not evidence against the plaintiff under any other count ; and where the defendant pleads several pleas the plaintiff cannot use an admission in one plea for the purpose of estab- lishing a fact which is denied in another (Harington vs. Macmorris, 5 Taunt., 228). The Supreme Court of Massachusetts laid down a different rule in the action of slander (Jackson vs. Stetson, 15 Mass. R., 48 ; Alder- man vs. French, l.PicJc, 1). These decisions have not been followed elsewhere (Cilley vs. Janness, 2 JV. Hamp. R. 87, 89), and they are much shaken at home by the recent case of Melvin vs. Whiting, 13 Pick., 184. [So far as Starkweather vs. Kittle treats the allegation as not evidence, it is overruled by cases under the Code in application to pleadings brought home to the knowl- edge of the party.] Berringer ■ys. Beecher, 58 Mich., 557; s. c, 25 North W. Rep., 491. (One count alleging wrongful discharge from employment in Nov. 1881 ; another alleging con- tinuance to May, 1883. On the trial plaintiff gave no evidence of discharge, but testified he was not dis- charged, and early in the trial formally withdrew the first count, and was allowed to recover for wages, etc., under the second. Held, not error. Moese, Ch. J., said that as he abandoned the special count at once, and it did not appear there had been any bill of particulars nor any surprise, the mere pleading of it did not estop him; though if he had given evidence under the special count and proceeded all through the trial until the case went to the jury, he could not then, at the last moment, have abandoned it and recovered under the common counts [citing Wetmore vs. McDougall, 32 Mich., 276]. But the joining of two counts in a declara- tion, one of which is repugnant to the other, does not preclude a recovery upon one of them. They do not destroy and nullify each other [citing Barton vs. Gray, 48 Mick, 164, 167 ; 8. a, 12 iV. W. Rep., 30].) § 644. What is inconsistency.— In those jurisdictions 544 Abbott's Bkief on Pleadings. Issues of Fact. [§ 644. or cases where inconsistent defences cannot be pleaded, under the New Procedure a denial or allegation in one division of a pleading should not, for the purpose of de- termining what is in issue, be deemed inconsistent with a denial or allegation in another, unless such that it is impossible that both should be true as matter of fact. Inconsistency in legal theory or implication is not enough. But a defence resting on a rescission of the contract sued on, or its invalidity, may be inconsistent with a defence or counterclaim in affirmance of it.^ Andrews vs. Hensler, 6 Wall. (U. S.)., 254. (Action on warranty of soundness. Denial of unsoundness, and al- legation of notice to plaintiff to examine before delivery, and his neglect to do so, not inconsistent.) Hopper vs. Hopper, 11 Paige {N. Y.), 46. (The Chan- cellor says : Where the defendant is required to swear to the truth of his answer, or at least to his belief of its truth, he cannot set up two distinct defences therein which are so inconsistent with each other that if the matters constituting one defence are truly stated, the matters upon which the other defence is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the allegations upon which the complainant's title to relief is founded, and may at the same time set up in his answer any other matters, not wholly inconsistent with such denial, as a distinct or separate defence to the claim for relief made by the bill, or to some part thereof.") Followed in Ledbetter vs. Ledbetter, 88 Mo., 60 ; s. c, 3 West. Rep., 917. Louisville & N. E. Co. vs. Hall, 87 Ala., 708 ; s.c., 6 South. Bep., 277 ; s. c, 4 Law Rep. Anno., 710. (Negligence : denial, and allegation of contributory negligence on plaintiff's part. Held, that the latter was not an admis- sion of defendant's negligence.) Cole vs. Woodson, 32 Kans., 272. (Slander: jdenial, and justification by truth, not inconsistent, for both may be true.) First Nat. Bank vs. Lincoln, 36 Minn., 132 ; s. c, 30 North West. Bep., 449. (Action to recover for money alleged to have been diverted : allegation that the money had been paid to plaintiff not inconsistent with a general denial of plaintiff's right to receive it.) Booth vs. Sherwood, 12 Minn., 426. (Trespass : denial of § 644.] Inconsistency in a Pleading. 545 title, plea of license, in same answer, not an admission of title.) Ehine vs. Montgomery, 50 Mo., 566. (Denial of assault, and justification, not inconsistent.) McGormick vs. Kaye, 41 Mo. App., 263. (Trespass : de- nial, justification, and statute of limitations not incon- sistent, because proof of one would not necessarily dis- prove the other. Beversed, for exclusion of evidence on the ground of inconsistency.) Cohn'ws. Lehman, 93 Mo., 574 ; s. c, 12 West. JRep., 315 ; s. c, 6 South West., 267. (Action on injunction bond : denial, and plea that in the suit in which it was alleged to have been given appeal was still pending.) McDonald vs. American Mortgage Co., 17 Or., 626 ; s. c, 21 Pac. Hep., 883. (Denial that services sued for were done on defendant's retainer, with allegation that they were done for an independent contractor. SeM, that a defence alleging that plaintiff's negligence in the ser- vice caused defendant great damage was not inconsist- ent. Motion to strike out denied.) s. P., Pavey vs. Pavey, 30 Ohio St., 600. (Denial of making the note sued on, and allegation that there never was any consideration for the note. Held, error to require defendant to elect.) Defences may be joined which can be verified by oath without swearing falsely. [Citing also Citizens' Bank vs. Closson, 29 Ohio St., 78 ; Springer vs. Dwyer, 50 N. Y., 19 ; rev'g 58 Barb., 189 ; Buhler vs. Wentworth, 17 Barb., 649 ; Mott vs. Bur- nett, 2 E. D. Smith, 50 ; "Weston vs. Lumley, 33 Ind., 486 ; Derby vs. Gallup, 5 Minn., 119.] " Adair vs. Adair, 78 Mo., 630. (Action to enforce vendor's contract security for the purchase of land not deeded. Answer admitted the agreement and contract of pur- chase, as stated, and denied all other matter ; also pleaded the statute of frauds and the statute of limita- tions, also payments and demand of deed ; concluding with a prayer for general relief equivalent to a prayer for compelling the vendor to complete the contract by delivery of the deed, if the fact of payment should war- rant and entitle him to such a decree. Hdd, judgment for plaintiff was proper. Defendant cannot plead the statute of limitations, which would rescind the contract and leave the title in the plaintiff, and at the same time insist on having performed it on his part, which entitles \\ \m to a deed, and ask to have the title taken out of the plaintiff and vested in him by delivery of a deed. The facts alleged in his answer, along with his prayer 546 Abbott's Brief on Pleadings. Issues of Pact, [§ 645. for relief, constitute a waiver of the plea of the statute. As separate defences, they do not consist.) [Breunich vs. Weselman, 100 N. Y., 609 ; s. c, 22 Weekly Dig., 356. (Holding that an answer of usury and a ten- der of the amount actually loaned were inconsistent, seems hardly in line with the best considered author- ities.) ] Compare Bruce vs. Burr, 67 JV. Y., 237, affg 5 Bcdy, 510. (Holding that in an action for breach of a contract of sale defendant may set up a rescission of the contract on the ground of fraud or mistake, and also a breach of warranty on the part of the plaintiff.) § 645. Confession by avoidance. — At Common Law a plea in avoidance must confess the charge, but an express confession is not necessary.^ Confession is necessarily im- plied by law. Under the New Procedure, it is the better opinioaa that an avoidance does not in itself confess the charge/ except where the allegations of the avoidance cannot be true as matter of fact unless the material fact of the charge is true. An avoidance without a denial is still a confession ; not, however, because of the avoidance, but because of the want of a denial.^ ' Day vs. Mill-Owners' M. F. Ins. Co., 75 Iowa, 694. (Action on a policy of insurance. Answer of a special defence. The Court say : " Our Code does not change the reqiiire- ments of the common law as to a plea in avoidance. [Citing Anson vs. Dwight, 18 Iowa, 241.] It must in effect and for the purposes of the plea confess that but for the matter pleaded in avoidance the cause of action or defence to which it applies would entitle the party pleading the same to succeed thereon. But this con- fession need not be in terms, but may be by implication. [Citing Anson vs. Dwight, 18 Iowa, 241 ; Morgan vs. Hawkeye Ins. Co., 37 Iowa, 359.] It is sufficient if it 'give color' to the alleged right of the adverse party. [Citing Steph. PI, 202, 217 ; 1 Chit. PI., 525.] There being no denial here, there was an admission of the allegations of the answer." [Citing also Eev. Code, §§ 2665, 2667.]) Gillen vs. Eiley, 27 Neb., 158 ; s. c, 42 North West. Rep., 1054. (Action for price of liquor : plea that plaintiff § 645.] Inconsistency in a Pleading. 547 was dealing in liquors without a license. Held, a con- fession of purchase ; and proof of the account sued on was unnecessary.) [Contra, Seymour vs. Bailey, 76 Oa., 338. (Holding that a justification admitting only part of the material allega- tions of the complaint was not enough.)] " Dictum in Taylor vs. Eichards, 9 Bosw. {N. Y.), 679. (Ac- tion for rent. Allegation in answer that if the contract was made, it was joint, etc., setting up defect of parties. MoNELL, J., well said : " A defendant in order to avoid need not confess. He has a right to put the plaintiff to his proof, and is not to be shut out of his defence because the proof is strong enough to charge him. He has the right to say, ' I deny your alleged cause of ac- tion against me, but if you shall succeed in proving it, still I am not liable, because, etc' ")* Glenn vs. Sumner, 132 U. 8., 152. (Recognizing this principle in a case arising under the North Caro- m * For some time after the adoption of the Code the tradition that avoidance implied confession was followed. Many authorities are vitiated by this error. And even so intelligent a writer as Mr. Bliss says: "It is difficult to see how one can allege new facts showing a non-liability that do not suppose the existence of a liability but for such facts." But every practitioner knows that one who justly denies the original indebtedness may also justly rely on infancy at the time it was alleged to have been contracted, or a general release, payment, or accord and satisfaction, in the way of buying his peace, or on almost any other of the ordinary defences in avoidance. To use a very homely illustration : The woman in the familiar anecdote might peradventure trulysay: "Ididnot borrow the kettle; your boys brought it on to my premises. I returned it, finding it left there and supposing it was yours. And it never was yours, for I discovered afterwards that it was my own ; and after a controversy about it we settled, and I paid you for surrender- ing it. " The Common Law would refuse to allow the denial to be coupled with the return, or with the compromise, on the theory that any avoidance must confess. But it is clear that all these allegations may be true together, and the New Procedure does not commit the injustice of shutting out one defence because another might prove sufficient. A friend has given me the following ruling in an unreported case as an illustration in support of the view of the law stated in the text: A. sued B. for goods sold and delivered. B. put in two defences, general denial and pay- ment. The facts were these: A. was an undisclosed principal of C. B. had bought the goods from C. and had paid him for them. Suppose " inconsist- ent" defences were not allowed, see what injustice would have been done in this case. If B. had been compelled to elect which defence he would stand on, and had stood on the general denial, A. could have boldly and safely proved the sale of his goods by his agent C. B. could not disprove this, and would be beaten. If, on the other hand, he had stood on the defence of pay- ment, admitting the sale, the burden of proof would be on him to show that C. was an agent of A. and that the goods he claimed he had paid C. for were the identical goods for which A. had sued him. To do this, he would have had to call as a witness A. or C. or some other person from the enemy's camp. But by interposing the "inconsistent" defences of denial and payment, he put the burden of proof where it belonged. A. could not prove his case with- out doing it through C. ; the moment that appeared, proof of payment to C. without notice of the principal's rights was in B.'s own power. This was the way the trial went, and B. won the verdict, which of right he should have had. 548 Abbott's Brief ok Pleadings. Issues of Fact. [§ 646. lina Code, the provisions of which are similar to the New York Code, except that there is no such sanc- tion of inconsistent defences, Gbay, J., said: "As held by Chief Justice Marshall, sitting in the Circuit Court for the District of North Carolina, where the law authorizes a defendant to plead several pleas, he may use such plea in his defence, and the admissions una- voidably contained in one cannot be used against him in another." [Citing Whitaker vs. Freeman, 1 Dev. L. (JV. C), 270, 280. See also Knight vs. McDouall, 12 Ad. & M., 438, 442 ; Gould vs. Oliver, 2 Man. & Gr., 208, 234 ; s. c, 2 Scott N. R., 241, 262.]) Del Valle vs. Navarro, 21 Abh. N. G. {N. Y.), 136. (Cit- ing N. Y. Code Civ. Pro., § 514, -and holding that an avoidance in a reply does not confess the counterclaim.) Tobin vs. Western Mut. Aid Soc, 72 Iowa, 261 ; s. c, 33 North West. Rep., 663. (Denial of default in payment, and separate defence of waiver of default by receiving • subsequent payments. Hdd, not inconsistent, and that the denial did not make it error to submit the ques- tion of waiver to the jury.) There are numerous authorities to the contrary, even as late as Goodman vs. Bobb, "41 Hun {N. Y.), 605. But the rule as above stated must now be deemed established. \^Contra, also. Meadows vs. Hawkeye Ins. Co., 62 Iowa, 387 ; s. c, 13 Ins. L. J., 2>11. {Dictum, that matter in avoidance necessarily admits the allegations sought to be avoided, and even therefore when contained in a reply waives the statutory denial.)] By recent statute in Minnesota, pleading a set-off or counterclaim can no longer be construed as an admis- sion of the cause of action. Trainor vs. Worman, 34 Minn., 237; s. c, 25 N. W. Rep., 401. ' Potter vs. Smith, 70 N. Y., 299. (Trespass : plea of license, but no sufficient denial of title. Meld, that title was admitted. Otherwise in Booth vs. Sherwood, 12 Minn., where title was denied.) 1 646. — estoppel — ^Pleading that the adversary is es- topped from setting up a fact he has alleged, is not in- consistent with a denial of the fact. Eikenberry vs. Edwards, 71 Iowa, 82 ; s. c, 32 NorthWest., 183. (Promissory note : defence forgery. HM, the matter pleaded by plaintiff in r.eply as an estoppel was not an admission that the signature was a forgery, and § 647.] Inconsistency in a Pleading. 549 did not change the issue as to the genuineness of de- fendant's signature.) Dana vs. Bryant, 6 III. (1 Oilm.), 104. (Holding there- fore that judgment on a trial of the issue of estoppel, adjudging that there was no estoppel, must not be final, but interlocutory, and leave the issue as to the fact to be tried. Judgment reversed for error in this respect.) [^Contra, see Pepper vs. Shepherd, 4 Mackey (Z>. C), 269 ; s. c, 1 Cent. Bep., 89. (Defence in equity that sale was void also that the sale made by the party, estopped "him. The Court say : " It is impossible that they can aver in one breath that the sale was utterly void and nugatory, and in the same breath deny that he has any redress and any right to appeal to a court of equity to enforce his rights, it being admitted on all hands that his debt has not been paid and that he has re- ceived no benefit whatsoever from the sale thus made and thus assailed." Citing Philadelphia, &c., R. E. Co. vs. Howard, 13 How. {U. S.), 307.)] § 647. Denial, and sepa/rate ad/mission — Plaintiff must gi/ve proof . — If a fact is sufficiently denied in one division of the answer to put tlie plaintiff to its proof, he cannot treat the denial as waived, or proof dispensed with, by reason of even an express admission of the fact, contained in a separate defence introducing an avoidance. Troy, etc., E. E. Co. vs. Kerr, 17 Barb. {N. Y.), 581, 599. (Subscription to stock. Answer, general denial ; also de- fence in avoidance that defendant had subscribed under specified circumstances relied on as an avoidance. Hdd, error to receive the subscription in evidence, against objection, as part of plaintiffs case, without proof of defendant's signature.) Brinsmaid vs. Mayo, 9 Vt, 31. (A, former recovery by plaintiff, alleged as a def6nce in one plea, not neces- sarily an estoppel against a denial in another plea, of the title established by that recovery.) Contra, Hartwell vs. Page, 14 Wise, 49. Even after judgment in favor of a defendant upon his substantiating an allegation in avoidance, the implied admission of the cause of action which at common law is necessarily involved in a plea of avoidance is not an estoppel. Eemington Paper Co. vs. O'Dougherty, 81 N. Y., 474 ; modifying 16 Hun, 594. 650 Abbott's Bbief on Pleadings. Issues of Fact. [§ 648. § 648. Defences inconsistent in fact. — It is the better opinion that under the New Procedure, unless the statute excludes inconsistent defences, a plaintiff who has gone to trial without objection, on an answer different divi- sions in which cannot both be true, has not a right, for the purpose of determining what is in issue, to object that either part of the answer impairs the other.^ But when the answer is verified, and on its face one defence is necessarily false, the Court has the power to compel election,* and to deal with the perjury.^ ' Goodwin vs. Wertheimer, 99 JV. T., 149. (Holding that under the N. Y. Code, from which the requirement that defence be consistent has been omitted, a denial of wrongful detention and refusal is not waived, and de- mand and refusal admitted, by a separate defence alleging title in defendant.) Parks vs. McClellan, 44 N. J. L., 552. (Under N. J. statute inconsistent and contradictory pleas allowed, in- troducing them with a fictitious allegation that they are pleaded by leave of Court ; and then the Court may strike out if not a ease for leave. The Court say : ' The statute was designed to relieve against the hardship of the common-law rules of pleading, which sought to narrow the controversy to a single issue for the con- venience of trial, frequently in disparagement of the rights of parties, and has always been liberally con- strued. In general, a defendant will be allowed to plead in different pleas as many substantially different grounds of defence as may be thought necessary, though they appear to be contradictory and inconsistent ; and the Court will deny leave only where the several pleas are clearly repugnant, or will create unjust delay or embarrassment in obtaining a trial.") Heinrichs vs. Terrell, 65 Iowa, 25. (Trespass on lands. Denial and plea of twenty years' ownership and posses- sion, and a special defence as to boundary. Hdd, the defendant had a right to plead inconsistent defences. Bev Code, § 2710. Admissions in one defence are not to be construed as affecting a different and inconsistent defence. Citing Barr vs. Hack, 46 Iowa, 308. Defend- ant was entitled to the full benefit of each defence. The plaintiff, failing to show title in himself, was not entitled to recover. Therefore reversed.) § 650.] AlDBE. 551 McLaren vs. Birdsong, 24 Oa., 265. (The Court say: " Defendant must make his answer, whicli may contain as many several matters as the defendant may think necessary for his defence ; and they may be inconsistent or contradictory.") " The constitution requiring all pleas to be sworn, the Court may require defendant to elect between incon- sistent pleas. Sanford i)s. Cloud, 17 Fla., 532. ' See form of the order in 1 Abb, New Pr. & F., 297. § 649. Amending to cv/re inconsistency. — Where two defences are inconsistent, the Court has power to allow the defendant to amend at or after the trial by striking ont either. Breunich vs. Wechsel, 100 N. T., 609 ; s. c, 22 WeeUy Dig., 355 ; aff'g 49 Super. Ct. (J. & S.), 31. (Holding it not error to allow this to be done to conform the answer to the proof ; and that the admission which the defence struck out presented would still be available as evi- dence. Finch J., says: " It was the right of the defend- ant to choose upon which of the defences she would rely, and having chosen, it was proper to conform the pleading to her proof.") 11. AlDEK. § 650. Complaint aided by answer ; § 654. Issues on separate causes of ac- answer by reply. tion. 651. Whole allegation or denial. 655. Denial of plaintiff's avoidance 653. Aider by immaterial or non-es- of defence without pleading sential allegation. the defence. 653. Denial may aid omission to al- 656. Complaint aided by reply. lege. S 650. Complaint aided hy answer: answer, hy re- ply^ — At Common Law,^ in Equity,^ and under the New Procedure ^ the omission of an essential fact from the declaration or complaint is cured by an allegation * or an express ^ or implied ® admission of the fact in the plea or answer. 552 Abbott's Brief on Pleadings. Issues of Fact. [§ 650. In the same way, the replication or reply wlU. aid the answer.'' ' See United States vs. Morris, 10 Wheat. (U. S.), 246. ' CaTender vs. CaTender, 114 U. S., 464 ; s. c, 29 Law. ed., 212; s. c, 5 Sup. a. Bep., 955. [^Compare contra, Jackson vs. Ashton, 11 Pet. {U. 5^.), 229. ' Wall vs. Toomey, 52 Gonn. 35. (The benefit of what is called " express aider " — ;illustrated in Vinal vs. Eich- ardson, 13 AUen {Mass.), 521, 525 ; Slack vs. Lyon, 9 Pick. {Mass.), 62 ; Whittemore vs. Ware, 101 Mass., 352 ; Erwin vs. Shaffer, 9 Ohio St., 43 ; and White vs. Joy, 13 N. Y., 83, — viz., that an omission to state a material fact in a pleading may be supplied by the pleading of the opposite party, — rests on principles of justice, and is applicable under the theory of the new practice.) Eiggs. vs. Maltby, 2 Mete. {Ky.), 88. (Action on bond : facts constituting breach expressly admitted in defend- ant's answer. — Held, sufficient in the appellate court. ICiting Fible vs. Caplinger, 13 B. Jl/onr., 466.]) [Contra, Doud vs. Wisconsin P. & S. Ey. Co., 65 Wise., 108; s. c, 25 North W. Bep., 533. (Holding that to withstand a motion to dismiss at the trial, the complaint may be liberally construed ; but it must be sufficient, independent of the answer.)] ' Limberg vs. Higenbotham, 11 Colo., 156. Hedderly vs. Downs, 31 Minn., 183 ; s. c, 17 North West. Bep.,274:; s. p., McMahon t;s. Herrick, 33 Minn., 262; s. c.,22 North West. Bep., 543. Dexter vs. Moodey, 36 Minn., 205. (Action for services. The complaint alleged what the usual commission for such services were worth ; the value of the property was $21,000, and that the services were of the value of $550. The answer denied that the services were of any greater value than the usual commission on $4000. Held, that while the averment in the complaint as to the usual commissions was pleading evidential facts not essen- ■^ tial to the cause of action, yet the defendant seemed to have intended to avail himself of it for the purpose of his defence, and this admission would stand in place of evidence of the value of the services. If, on the other hand, the denial was not to be considered an admission, the answer would not sufficiently deny that the serv- ices were of the value of $550, so that on either aspect of the case the plaintiff could sustain recovery without proof of value.) § 650.] Aider. 553 Cohu vs. Husson, 113 N. Y., 662 ; s. o., 23 State Rep., 505 ; aff'g 6 State Rep., 292 ; 21 North K Hep., 703, aff'g 13 Daly, 334. (So kdd, sustaining refusal to dismiss the complaint at the trial for insufficiency.) Stedeker vs. Bernard, 102 N. Y., 329. (Allegation of firm note : answer that it was made by one partner, — who joined in the answer, — for his own purposes, etc. Held, plaintiff was entitled to judgment against such one upon this admission.) Miller vs. White, 4 Hun {N. Y.), 62; s. c, 6 Supm. a. {T. <& C), 255. (Complaint to charge trustee of corporation with individual liability for its debt, omitting to allege nature of debt, supplied by description of it in the an- swer.) Bate vs. Graham, 11 N. Y., 237. (In an action by a judg- ment creditor against the administrator of the deceased debtor and an alleged fraudulent assignee of the debtor, the complaint failed to show the right of a judgment creditor to bring such an action directly, by omitting to allege that the administrator refused to regard the assignment as fraudulent. The answer of the admin- istrator, however, denied that it was executed with fraudulent intent. Hdd, that the Court below properly refused to dismiss the complaint upon motion at the opening of the trial, and the appellate Court would deem the defect supplied by amendment, and sustain the judgment.) Leon vs. Bernheimer, 10 N. Y. Weekly Dig., 288. (Holding it error to dismiss complaint as insufficient when the insufficiency was supplied by the answer. The action was to recover money paid on an usurious discount ; and the answer showed that the note was an accommo- dation note, made to be discounted.) White vs. Joy, 13 N. Y, 83, rey'g 11 How. Pr., 36. (Com- plaint on note, not indicating that it had any payee. Answer, stating that defendants made and delivered it, and to whom, — held to cure the defect, although a demur- rer would have been sustained ; and it cured the defect even against the objection when raised on demurrer to reply.) Haddow vs. Lundy, 59 N. Y, 320, aff'g 3 Supm. a. {T.d C), 777. (Holding that an omission of the complaint to aver a necessary fact which appears by the answer, may be supplied, or treated as if supplied, even after appeal to the Court of Appeals.) Grimes vs. Hagood, 19 Tex., 246. (Answer cured defect which had been previously erroneously disregarded on demurrer.) 554 Abbott's Brief on Pleadings, Issues of Fact. [§ 651. s. p., Lyon vs. Logan, 68 Tex., 521 ; s. c, 2 Am. St. B., 511. ' Barnes vs. Jackson's admr., 85 Ky., 407 ; s. c, 3 South West. Bep., 601. Powell vs. Hayes, 31 La. Ann., 789. EoUins vs. St. Paul Lumber Co., 21 Minn., 5. " Donaldson vs. County of Butler, 98 Mo., 163. Garth vs. Caldwell, 72 Mo., 622. (Eeplevin. Petition not alleging defendant's possession. Answer denying that defendant " wrongfully " detains, implies that he detains, and cures the omission.) ■> United States vs. Morris, 10 Whmt, 246, affg. 1 Paine, 209. (Holding that on demurrer to replication, the replication was aided by the plea.) The rule that a defect in the complaint is supplied by an allegation in the answer, does not apply when the defect is objected to by motion to dismiss at the trial, and the allegation relied on exists only in a counterclaim, for the motion to dismiss is in no way founded on the counterclaim, but waives it so far as this action is concerned. Bosentower vs. Stein. Mc- Adam, J. (not reported.) §651 Whole allegaUon or denial. One claiming aider from his adversary's pleading must take the whole alle- gation or denial, not merely the part which helps, reject- ing that which hurts him. Scofield vs. Whitelegge, 49 N. T., 259, 262 ; s. c, 12 Ahh. Pr. N. S., 320. § 652. Aider hy immatefrial or non-essential allega- Uon. — An allegation which aids the case made by the adversary's pleading is none the less effectual as an admission upon which the adversary may rely at the trial, by reason of its not being material to the case made by the pleader. Andrews vs. Chadbourne, 19 Barb. (N. Y.), 147. (Allegation in complaint by transferee of note that he acquired it on or about a date which was after maturity. Hdd, that defendant could rest on this in connection with evidence of his payment to the transferror ; and that it was error to disregard the allegation on the ground that an alle- §653,] AiDBE. 555 gation as to time is immaterial, and that tlie legal pre- sumption is that a note is transferred before maturity.) s. P., People ex rd. Watkins V8. Perley, 80 N. Y., 624. (Here the allegation in the complaint admitted in the answer was unnecessary in the complaint, being stated in order to avoid an anticipated defence.) §653. by specific denial. — The omission of an es- sential allegation from the complaint or answer is not cured by a denial of such fact in the answer or reply (as distinguished from a general denial), if objection be made at the opening of the trial.^ Otherwise if no objection has been made until evidence is offered, in which case the denial if specific,* is to be regarded as forming an issue as if the fact denied had been duly alleged.' ' Scofield vs. Whitelegge, 49 N.Y., 259 ; affg 12 Abb. Pr. {N. 8.), 320. Tooker vs. Arnoux, 76 N. Y., 397. (Judgment reversed for error in not dismissing.) ' In Davis vs. Travis, 98 Mass., 222, under the Mass. Prac. Act, it was held that although the declaration failed to allege consideration, a general denial put upon plaintiff the burden of proving the consideration as if it had been alleged and specifically denied. Eeversing judg- ment for error in not requiring proof from plaintiff, even though defendant declined an offer of leave to amend. [The better opinion is that a general denial denies nothing more than is alleged, and that a denial must be specific to imply the absent allegation.] ' Slack vs. Lyon, 9 Pick. (Mass.), 62, 65. (Leading case. Paekee, J., says: "When the defendant chooses to understand the plaintiff's count to contain all the facts essential to his liability, and in his plea sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the Court that all the material facts were in issue, the de- fendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus pur- posely to have omitted to notice in the outset of the controversy.") Worthley's Adm'r vs. Hammond, 13 Bnsh (Ky.), 510. 556 Abbott's BRiEr on- Pleadings. Issues of Fact. [§ 6o4. (Not error to overrule a motion to exclude the testi- mony of a witness.) Bentley vs. Bustard, 16 B. Mon., 643. (Action for damages against owner of river boat for goods cast overboard. The answer showed that the loss was occasioned by one of 'the excepted causes. (Held, that it thus made a part of the issue the very fact which was omitted in the petition.) Jewell vs. Mills, 3 B'ush {Ky.), 62. (Action on bond. Error to give judgment, instead of submitting the case to the ^ W7-) Louisville & Portland C. Co., vs. Murphy, Adm'r, 9 id., 522; Garth vs. Caldwell, 72 Mo., 622; Hughes m. Car- son, 90 Mo., 399 ; s. c, 7 West. Rep., 288. Wagner vs. Missouri Pac. E. E. Co. {Mo., 1889), 8 Law B. Anno., 156, 159. (Here the complaint alleged that the deceased was on defendant's train, without alleging that he was a passenger, and the the answer alleged that he was not a passenger. Held, that as the parties had treated it as raising an issue, and gone to trial, and the fact which should have been alleged was proved, the defect in the complaint must be deemed waived.) White vs. Spencer, 14 N. Y., 247. f (Action for flowing land. Plea of twenty years' possession, with no allega- tion to show it to be adverse. Held, that the plaintiff, having treated this allegation in the answer as a suf- ficient statement of a defence, by replying to it, and by going to' trial without objection, was precluded from objecting to evidence to sustain it. Denio, C. J., after reviewing several cases, said : " The doctrine estab- lished by these cases is, that a defective pleading, though the defect be one of substance, will not warrant the judge at the circuit in excluding evidence of the claim or defence thus imperfectly set up.") Seeley vs. Engell, 13 N. Y., 542. (Action on note, admit- ting part payment. Answer alleged that it was given for more than was due. Held, that if the allegation of mistake was too general, plaintiff should have moved before trial. " By omitting to do this, and especially by replying as though he understood what was in- tended to be set up, he was precluded from objecting to the evidence on the trial.") Eeck vs. Phoenix Ins. Co., 8 Civ. Pro. B. {N. Y.), 376. (Action on marine policy. No allegation that loss was during the continuance of the policy ; but denial thereof.) § 654. Issv£S on sepa/rate causes of action. — The § 656.] AiDBK. 557 allegation of a party contained in the pleadings forming tlie issue as to one cause of action cannot aid his adver- sary to let in evidence under the issue upon another cause of action. Eeed vs. Inhabitants of Scituate, 89 Mclss. (7 Allen), 141, 143. (Here the first count was on a special contract, and the second general. Hdd, that although an allega- tion in the first count showed that the action was prem- ature, defendant could not avail himself of this as a defence to the second count. Dictum that perhaps it might have been otherwise had plaintiff himself proved the fact.) § 655. Denial of plaintiff's a/voida/nce of defence without pleading tlie defence. — If, besides stating the cause of action, plaintiff alleges facts going to constitute a defence and adds an avoidance of that defence, — such, for instance, as a waiver, — he necessarily admits by impli- cation the existence of those facts, and defendant under a denial of the matter in avoidance can avail himself of those facts as his defence without having himself pleaded them. Vogel vs. People's Ins. Co., 75 Mms. (9 Gray), 23. (Action on fire policy, setting forth conditions, among which was a short limitation of time to sue ; coupled with an allegation that this condition had been waived. HM, that denial of waiver, without alleging the condition, was sufficient to enable defendant to rely on the condi- tion at the trial.) § 656. Gomplaint aided hy reply. — The omission of the complaint to state a fact necessary to make out the cause of action intended, is cured by an allegation of the fact in the reply, if defendant accepts the reply and goes to trial without objection. Eaplee vs. Wilkin, 5 N. T. WeeJdy Dig., 560. [Contra, Webb vs. Bidwell, 15 Minn., 479.] 658 Abbott's Bkibf obt PLEADiiirGS. Issues of Fact. [§ 657. 12. Depaetuee. § 657. Refusal to try departure. § 658. Reply to counterclaim. § 657. Refusal to try departwre. — Where a reply departs entirely from the complaint the Court may refuse to try the new cause of action set iip by the reply, and confine the party to the original issue. ^ Allegations showing that defendant is estopped from setting up what his answer contains, is not a departure, ^ ' Harder, Luse & Co. vs. "Wright, 70 Iowa, 42 ; Lafever vs. Stone, 55 id., 49 ; School District of Hastings vs. Caldwell, Hamilton & Co., 16 Nehr., 68 ; Sayage vs. Aiken, 21 Nebr., 610 ; Campbell vs. Mellen, 61 Wise, 612 ; s. c, 21 North West. Rep., 864. ' Paxton Cattle Co. vs. First Nat'l Bank, 21 Nelr., 621 ; Cobbey vs. Knapp, 23 id., 687. § 658. Reply to counterclaim. — A proper reply to a counterclaim avails for that purpose, notwithstanding it could not avail in support of the original cause of action, because as such it would be a departure. Trainor vs. Worman, 33 Minn., 484 ; s. c, 25 North West. Bep., 401. 13. Watvee by Pleading oe Not Pleadeno. § 659. Objections to be taken byde- §660. Waiver of objection to counter- murrer or answer. claim. 661. Abatement, and merits. § 659. Objection to he taken lydemu/rrer or answer. — The provision in the Codes ^ that a demuiTable objection (other than for insufficiency or want of jurisdiction of the subject [and except also absence of an indispensable § 659. J Waiver by Pleading ok ISTot Plbadikg. 559 party ^J), if not taken either by demurrer or answer, is waived, — means that when it appears on the face of the complaint it is waived * if not taken by demurrer,* and cannot be taken by answer ; ^ and that when it does not appear on the face of the complaint, it is waived if not taken by answer.® It is the better opinion that an objection duly raised by demurrer is not waived by answering and going to trial after the demurrer has been overruled.'^ ' Minnesota, Stats. (Kelly), 1891, § 4770. Missouri, Bev. Stats. (1889), § 2047. JVew York, Code Civ. Pro., § 499. ' Osterhoudt vs. Supervisors of Ulster, 98 N. Y., 239, 243 ; s. c, 2 Weekly Dig., 329. Alexander vs. Horner {U. S. C. Ct. Ark.), 9 Centr. L. J., 111. As to who are -within the rule, see § 445. The proper time for this objection is after the openine and before going into evidence {Lube Eq. PL, Suran. & W. ed., 109), or as soon as the fact appears by the evi- dence. The Court may dismiss, or let the cause stand over for amendment. " In Fourth Natl. Bk. vs. Scott, 31 Hun, 301, it is held that it appears on the face of the complaint if it appears by aid of an exhibit duly made part of the complaint.) [See §§ 11, 370, 396, 447. Also §§ 229, 241]. * McOormick vs. Blossom, 40 Iowa, 256. (Defect of parties.) Fulton vs. Loughlin, 118 Ind., 286. (Under statute requir- ing assignors to be joined in certain cases, if plaintiff alleges that he is the owner of the note sued on by in- dorsement from the firm of which he is a member, the sufficiency of the indorsement can only be tested by a demurrer for defect of parties.) Metcalfe vs. Brand, 86 Ky., 331. (Defect of parties plain- tiff.) Sumner vs. Tuck, 10 Mo. App., 269. (Misjoinder : so hold- ing even though a demurrer could not have been sus- tained.) Fosgale vs. Herkimer Co., 12 N. T., 580. (Misjoinder of parties.) Blossom vs. Barrett, 37 N. Y., 434. (Misjoinder of causes of action.) 560 Abbott's Brief on Pleadings. Issues of Fact. [§ 659. Spooner vs. Delaware, etc. E. Co., 115 N. Y., 22 ; s. c, 23 State Rep., 554. (Defect of parties.) * Zabriskie vs. Smith, l^N. T., 322. * Davis vs. Chouteau, 32 Minn., 548, 550. (Non-joinder of a co-contractor as plaintiff.) Tapley vs. Tapley, 10 Minn., 448. (Married woman su- ing alone ; the objection is to capacity, and waived if not taken by demurrer or answer.) Compare Sheldon vs. Van Slyke, 16 Barb., 26. (When persons jointly interested sue separately, defendant, notwithstanding he has omitted to plead the non-joinder of parties plaintiff, is entitled to an apportionment of the damages, so that each shall only recover his share.) ' Eeynolds vs. Lincoln, 71 Cal., 183 ; s.c, ^ Pad/. Rep., 176. (Here the demurrer was for misjoinder of causes of ac- tion. The Court disapprove as' unjust the contrary rul- ings inLonkeyi;s. Wells, \%Nev., 271 ; Hammersmith vs. Avery, 18 Bev., 225', s. c, 2 Pac. Rep., 55 ; De Boom vs. Priestly, 1 Gal., 206 ; Pierce vs. Minturn, id., 470 ; Brooks vs. Minturn, id. 481 ; and say : " If a complaint improperly joins two causes of action, advantage must be taken of the defect by demurrer, or it is waived. Sup- pose a demurrer in such a case is interposed, and im- properly overruled, a defendant thus situated may hesi- tate to rest upon his demurrer, lest an error of judgment on his part imperil his case and shut him out of a meri- torious defence. If, however, he answers, he is under this rule forever prechided from availing himself of an error which may have worked him great injustice. It is proper to say that merely formal defects in a pleading are waived by pleading over after demurrer overruled ; but as to those which affect the substantial rights of the parties, there is no inherent justice in holding a party to have waived error by pleading after a demurrer interposed by him has been overruled. Wheelock vs. Lee, 74 N. Y., 495 ; s. c, more fully, in 5 Abb. N. a, 84. [The rule varies in different States. See, contra, Fordyce vs. Merrill, 49 Ark., Ill ; s. c, 5 South West, ^ep.,,329 ; Green i;s. Taney, 7 CoZo., 278 ; Pence vs. Durbin, 1 Idaho N. S., 550. The true view seems to be that while the decision on the demurrer may be controlling on the trial court on the same question, — except perhaps when the , objection is to jurisdiction of the subject, — ^yet the party has in all cases a right to reassert his objection, and have an exception which will raise the same ques- tion on appeal, and show that he has not acquiesced.] § 661. J Waiver by Pleading ok Not Pleading. 561 [According to Menifee vs. Clark, 35 Jnd., 304, raising an objection to an earlier pleading, on demurrer to a later pleading, is equivalent to having demurred specially to the earlier. But see § 461.] § 660. Waiver of objection to cownterclaim. — Reply- ing to an answer waives tlie objection that it did not expressly purport to set up a counterclaim.^ But it does not waive the objection that the facts stated are not sufficient to constitute a cause of action.® And it is the better opinion that it does not waive the objection to reception of evidence on the ground that the demand is not of a nature to avail as a counterclaim in the present action.^ Omitting to reply does not waive the objection that the matter alleged does not give a right of set-off or counterclaim.'* ' Nutter vs. Johnson, 80 Ky., 427 ; s. o., 4 Ky. L. Rep., 305. " Talbott vs. Padgett, 30 8. C, 167. (A plaintiff may orally demur to a counterclaim, upon the ground that it is not sustained by facts stated after replying thereto.) ' Smith vs. Holt, 67 N. Y., 48. Tracey vs. Grant, 137 Mass., 181. (Set-off.) Couch vs. Parker, 1 Tex. App. Civ. Cos., § 436. [Contra, Eoback vs. Powelt, 36 Ind., 515 ; Great "Western Printing Co. vs. Tucker, 73 Iowa, 755 ; Lace vs. Fixen, 39 Minn., 46, and cas. cit. (In none of these cases was the objection attempted to be taken by objecting to evidence.) Scheland vs. Erpelding, 6 Greg., 258.] * Jordan vs. National Shoe and Leather Bank, 74 N. Y., 467 ; s. 0., 30 Am. R., 319,aff'g 12 Hun, 512. (Because that is a question of law.) § 661. Abatement, and merits. — Under the Common Law and Equity rule that a plea in abatement is waived by a plea to the merits/ it is not essential to move to strike out the waived plea before trial ; but the objection may be taken at the trial.® But notwithstanding such waiver, the Federal court, 562 Abbott's Brief oit Pleadings. Issues of Fact. [§ 662. under tlie statute requiring it to dismiss an action color- ably brought, may direct an issue to be made and tried.* [The usual provisions in the Codes allow both to be joined, and allow the Court to direct that one issue shall be tried before the other.] ' This rule applies in courts of. the United States, even in Code States. Cuthbert -ys. Galloway, 35 Fed. Bep., 469, and cas. cit. Itjapplies notwithstanding defendant's plea to the merits expressly declares that he does not waive the other. Sheppard vs. Graves, 14 How. ( U. 8.), 505. " Dictum in Oregonian Ey. Co. vs. Oregon By. & Nav. Co., 22 Fed. Rep., 245, 248. ' Imperial Eefining Co. vs. Wyman, 38 Fed. Bep., 574:. 14. Issues between Co-defendants. § 663. Right to prove case against co- § 665. Unnecessary controversy, defendant. 666. Necessity of notice. 663. Relevancy of claim to subject 667. No responsive pleading neces- of action. sary between co-defendants. 664. Same subject-matter. 668. Unsuccessful defendant. § 662. Right to prove case against a co-defendant. — Where the answer of a defendant states facts showing that justice requires that a question betweeen such de- fendant and a co-defendant be determined in order to determine the proper measure of relief to be granted to plaintiff, such defendant has a right, both in Equity and under the New Procedure, to require the determination of that question by demanding relief against the co- defendant and serving the answer upon him ; and it is error to exclude evidence offered for that purpose under such an answer. Albany City Sav'gs Inst. vs. Burdick, 87 N. Y., 40, rev'g 20 Hun, 104. (Foreclosure : defendant asked reforma- § 663.] Issues between Co-defendants. 563 tion of an assumption clause fraudulently inserted in her deed by a co-defendant. Hdd, error to refuse to receive the evidence. N. Y. Code Civ. Pro., § 521, con- fers no new power upon courts acting in equity, but is simply a regulation of practice.) To same effect, Derham vs. Lee, 87 N. T., 599, affg 60 How. Pr., 334. (Holding that when an adverse claimant for money sued for, has been made a party defendant, seek- ing to extinguish the hostile claim, the Court, having all the facts and all the parties before it, can adjust the rights not only between the plaintiff and the defend- ants, but between co-defendants, and can determine not only the amount due, but the party to whom it shall be paid.) Otherwise where the matter of the question between the co-defendants is not capable of affecting the rights of the plaintiff, as where in foreclosure a defendant sets up an allegation of usury only available between him- self and his co-defendant personally. Kay vs. Whita- ker, 44 N. Y., 565. S. p., in admiralty, allowing a third person to be brought in for the purpose. The Hudson, 15 Fed. Rep., 162. It is not material which answer is served first. Barnard vs. Onderdonk, 11 Abh. N. C, 349. (Affirmed on the merits in 98 N. Y., 158.) § 663. Relevancy of claim to suhject of action. — A defendant cannot claim to litigate, on. the trial, a contro- versy with a co-defendant, thougli alleged in his answer "with a demand of relief against the co-defendant, if the subject of controversy is not connected with the subject- matter of plaintiff's action. Thus in a creditor's suit between grantor and grantee, to set aside the conveyance as fraudulent as against cred- itors, the grantor cannot demand that it be set aside on the distinct ground that the grantee induced him to exe- cute it by deceit. Eafferty vs. Williams, 34 Hun, 544, (Eefusing on this ground to compel production of documents to sustain that claim.) s. P., Smith vs. Hilton, 50 Hun, 236 ; s. c, 19 N. Y. State Bep., 340; 2 iV^, Y. Supp., 820. (Holding, therefore, 564 Abbott's Brief on Pleadings. Issues of Fact. [§ 664. that in an action by a legatee, under a will, to set aside , certain conveyances by the testatrix in her lifetime as obtained by fraud, it was not permissible for a defend- ant to set up a claim that the will itself was obtained by fraud of such defendant, and was therefore invalid and void.) § 664, Same suhject-matter. — The Court have power to determine a controversy betw^een co-defendants although it does not affect the measure of relief to be granted to the plaintiff, if the claim is involved in the subject-matter of the action, and can be determined without unreasonable hindrance to the plaintiff's case. Cmigvs. Chandler, 5 Coh., 543 ; s.c., 16 Rep., 73. (Bill by one partner against the others for an accounting. Hdd, that a decree could be made between the co-defendants in favor of one who in her answer had alleged a balance to be due to her from her co-defendant, and prayed a decree therefor in her answer, although no cross-bill had been filed.) Butler vs. Butler {Chan. Div.), 49 L. J. Oh., 742. (De- mand for contribution between trustees sued for breach of trust.) Smart vs. Bement, 4 Abb. Ct. App. Dec., 253. (Holding that defendants, who do not set up any equities as against plaintiff in a foreclosure suit, should not be allowed to litigate between themselves, before judgment, the question of their priorities of right in the fund or their equities as to the order of sale of parcels of the property, but plaintiff should have the usual judgment of sale. Weight, J., said : " "When all the facts as be- tween defendants on the record are before the Court, it may have power to determine issues and adjust equities between them ; but it is not bound to do so, especially if there be any right of the plaintiff on the record which may be impaired or invaded.") In Decker vs. Judson, 16 N. Y., 439, 450, Denio, C. J., said that in a common-law action the Court is not bound to determine controversies between parties oh the same side without allegations in the nature of pleadings between them.) § 665. Unnecessa/ry controversy. — The Court is not bound to try a question- between co-defendants if the I 666.] Issues between Co-defendants. 565 plaintifE's rights can be clearly and fairly determined without so doing. ^ But it should do so whenever it is necessary in order to do justice to defendant in de- termining plaintiff's case.' ' Gaither vs. Clark, 67 Md., 18 ; s. c, 8 Atl. Sep., 740. [Cit- ing Cottingham vs. Shrewsbury, 3 Hare, 627.] "Albany Savings Bank vs. Burdick, 87 i\^. Z, 40, rev'g 20 Hun, 104, and holding it error in foreclosure to re- fuse to allow a defendant to prove a claim to have the mortgage reformed on account of fraud committed by a co-respondent in procuring its execution. Compare §§ 662, 663. For cases on necessity of cross-bill, see Howe vs. South Park Comrs., 119 111, 101 ; s.c, 7 JVorth East. Bep., 333 ; Brinkerhoff vs. Franklin, 21 N. J. Eq., 334; Tucker vs. St. Louis Life Ins. Co., 63 Mo., 588. § 666. Necessity of notice. — If an answer demanding relief against a co-defendant is not served on such co-de- fendant or his attorney, the Court should refuse to try the issues proposed by it, except on consent, or tacit waiver of the objection by going into the trial without objection.^ The Court should refuse to entertain a demand of relief by a defendant against a co-defendant who has not appeared in the action .'^ It is not enough that the answer was served on the attorney of the co-defendants who had appeared.^ But the New York statute allows personal service on defendants who have not appeared.* ' Edwards vs. Woodruff, 90 N. Y., 396, 401 ; s. c, 16 Weehly Dig., 4. (Vacating judgment for error in this respect, not even notice of trial having been served on the co- defendant.) " Woodworth vs. Bellows, 4 How. Pr. {N. Y.), 24. (Sustain- ing plaintiff's motion to strike out.) s. P., Kay vs. Whittaker, 44 N. Y., 565. ' Parker vs. Commercial Tel. Co., S N. Y. State Bep., 174. ' N. Y. Code Civ. Pro., § 521. The amendment of 1884 566 Abbott's Brief on Pleadings. Issues of Fact. [§ 66& seems to have been overlooked in Parker vs. Commer- cial Tel. Co., 3Ii. Y. State Sep., 174, to the contrary. In Thode vs. Spofford, 65 Iowa, 294 ; s. c, 17 JSf. West. Bep., 561, a decree between co-defendants in a previous cause,, where an infant was one of the co-defendants, was held to have no effect as an adjudication concluding against the subsequent litigation, on the ground that without such notice the Court had no jurisdiction. [Otherwise if the respective defendants each set up their adverse claims, and it does not appear that either did not have notice.] s. p., Joyce vs. Whitney, 57 Ind., 550. In Steel vs. Dixon {Chan. Div., 1880), 42 Law Times B., N. S., 765, where the co-defendant was not served with the statement of defence, but obtained a copy by apply- ing and paying for it,— held, that the question was not at issue between the co-defendants. § 667. JVo responsive pleading necessa/ry heixoeen co- defendants. — The failure of a co-defendant to deny alle- gations in the answer of another defendant served upon him for the purpose of trying a demand for relief as be- tween them, is not an admission of the facts alleged against him in such answer. Woodworth vs. Bellows, 4 How. Pr. {JST. Y.), 24. (But sustaining, nevertheless, plaintiff's motion to strike out.) InGarnsey vs. Enights, 1 Supm. Ct. {T. & C], 259 (aff'd, it seems, in 60 JV. T., 646, but no opinion), it was held that a defendant, by not answering, admits the equities set up by his co-defendant who answers, so far, at least, that he cannot, after judgment against him by default, appeal from a judgment on those equities in favor of the . co-defendant. § 668. Unsuccessful defendant. — A defendant who has failed in establishing any right to the fund in suit is not entitled further to contest the claims of co-defendants on that fund. Spring vs. South Carolina Ins. Co., 8 Wheat., 268. (Ac- counting in equity.) 670.] Objections to Jukisdiction. 567 II.— APPLICATIONS AT THE OPENING OF THE TEIAL 1. Objections to the Jubibdiction ficiency, ok foe Judgment on OF THE Court, §§ 669-684. the Pleadings, §§ 685-701. 3. Motions to Dismiss fob. Insuf- 3. Motions to Compel Election, §§ 703-730. 1. Objections to the Jubisdiotion oe the Cottet. § 669. Several causes of action. § 676. — residence, etc. 670. Transitory action between non- 677. Federal question cases. residents. 678. particular classes of cases. 671. Waiver — where plaintiff's 679. Citizenship cases. pleading shows want of 680. — Citizenship appearing in jurisdicdiction. other parts of the record. ,673. Waiver by proceeding after 681. — Parties collusively made or objecting. joined. 2 673. Exclusive jurisdiction of an- 683. — Hanging parties to affect other court. jurisdiction. 674. Objection to service, by answer. 683. Amending to defeat objection. 675. — inferior court of local juris- 684. — In United States courts. diction — service within lim- its. § 669. Several causes of action. — If tlie Court has juris- diction of any one of several causes of action stated in the complaint, others of which it has not jurisdiction may be disregarded as surplusage. Allen vs. "Wilmington & M. K Co., 102 JV. 0., 381 ; s. C, 9 South East., 4. s. p., Oook vs. Chase, 3 Duer {N. Y), 643. § 670. Trandtory action heimeen non-residents. — A State coui-t can, in its discretion, decline jurisdiction in a transitory action between non-residents. 668 Abbott's Brief oif Pleadings. Issues of Fact. [§ 671. Burdick vs. Freeman, 120 JV. Y., 420 ; s. c, 31 State Sep., 427. {Dictum; holding that the Court may, in its discre- tion, entertain the action, and overruling, so far as to the contrary, Molony vs. Dows, 8 Abh. Pr. {N. Y.), 316.) Compare Oofrode vs. Gartner, 79 Mich., 332 ; s. c, with note, in Z^ Centr. L. J., 434, to the effect that it ought not to decline jurisdiction if the parties are citizens of any of the United States. § 671. Waiver — where plaintiff^ s pleading shows want of jurisdiction. — A defendant, who has pleaded to the merits and gone to trial without objecting to the want of jurisdiction, does not thereby waive the objection that the subject appears by the plaintiff's pleading not to be within the jurisdiction of the court.^ Such objection should be sustained, even though the answer or an agreed statement of facts, by admitting part to be due, redtices the controversy to what is within the Jurisdiction.^ ■ The reason is that the objection that the Court has no jurisdiction of the subject-matter is not waived by omit- ting to take it by answer or demurrer. Mathie vs. Mcintosh, 40 Wise, 120. (Trespass in a mu- nicipal court, — the premises being situated without the limits of the municipality, — dismissed on appeal in the Supreme Court, although no objection had been taken on the trial.) Gamber vs. Holben, 5 Midi., 331. (Statute directing Court to dismiss bill in certain oases, where the amount in controversy was less than $100.) Musselman's Appeal, 101 Pa. St., 165. (The objection that the Court has no jurisdiction, by reason of defend- ant being a foreign executor, not having letters issued within the State where he is sued, goes to the subject of the action, and is not waived by not pleading it, but may be taken at any stage of the cause.) s. p.. Gray vs. Eyle, 5 Civ. Pro. R. {N. Y.), 387. s. p., Hankinson vs. Page, 3 How. Pr. N. S,, 323. [Contra, Rose vs. Thompson, 17 Ala., 628. (Action in justice's court for a sum exceeding $50, and the objec- tion not being raised until the case had gone to the § 672.] Objections to Jueisdictiok. 569 ' Abney vs. WKitted, 28 La. Ann., 818. Connors vs. Citizens' M. Ins. Co., 22 La. Ann., 330, 331. [It is the better opinion that the objection may be cured by amendment, if it has appeared by the evidence that the Court has jurisdiction. If defendant has pleaded, and gone to trial upon an amended complaint, which claims sufficient to give jurisdiction, he cannot defeat the action merely on the ground that the original complaint did not claim sufficient. Washer vs. Bullitt County, 110 U. 8., 558.] § 672. Waiver hy proceeding after objecting. — It is the better opinion that if defendant has raised an objec- tion to the jurisdiction in any proper way, — as by de- murrer, or plea in abatement, or by motion to dismiss where that is allowable, — with special appearance, and the objection has been overruled, he does not waive it by pleading to the merits and going to trial,^ ev^n though the objection be founded only on a violation of the per- sonal privilege of the defendant.^ Nor does he waive such objection after taking it expressly in his answer, by serving a general appearance in the action.^ ' [This is the rule of the appellate court. Whether the de- cision overruling the objection is conclusive in the trial court, is another question ; but it cannot be conclusive on a question of jurisdiction of the subject.] People vs. Central E. R. Co. of N. J., 42 i\^. Y., 283. (An- swering after overruling of demurr'er.) Harkness vs. Hyde, 98 TJ. S., 4JI6. (Suit for malicious attachment, in a District Court of Idaho. Service was had within the limits of an Indian Reservation. Defendant appeared specially and moved to dismiss, because of service without the jurisdiction. The motion was adjourned to the Territorial Supreme Court, and there overruled and exception taken, the case being remanded; whereupon defendant answered, and trial was had. Held, the service was illegal, and defendant did not waive the illegality by specially appearing to move to set it aside, nor by answering, upon his motion being overruled. He waives the objection only when he pleads to the merits, in the first instance.) Compare with Blackburn vs. Selma, M. & M. E. Co., 2 570 Abbott's Beief ok Pleadings. Issues of Fact. [§ 673. Flippin, 525. (In a bill to foreclose a railroad mort- gage, in a Federal Court, complainant, a non-resident, averred that defendant was duly chartered under the laws of the State where the suit was brought. Defend- ant appeared and demurred for want of jurisdiction, and upon the overruling of the demurrer, answered. HM, that under U. 8. Bev. Stat., § 737, the Court can acquire jurisdiction over the corporation by its volun- tary appearance, and that the question of jurisdiction was waived "by the fiUng of the answer, and perhaps by the demurrer. The only way to raise the question of jurisdiction was by plea in abatement,traversing the averment.) ' Jones vs. Jones, 108 N. Y., 415 ; s. c, 13 iV". T. State Sep., 833_; 15 North East. Bep., 709. (The Court say : "The principle upon which the doctrine proceeds is that the party who has objected to the jurisdiction, and whose objection has been overruled, is not bound, as was said by Haelan, J., in Steamship Co. vs. Tugman. (106 U. S., 118; 1 Sup. a. Rep., 58), 'to desert the case and leave the opposite party to take judgment by de- fault.'" Citing Harkness vs. Hyde, 98 U. S., 476; Warren vs. Crane, 50 Mich., 300 ; 15 N. W. Rep., 465 ; Dewey vs. Greene, 4 Den., 93 ; Walling vs. Beers, 120 Mass., 548 ; People vs. Baker, 76 N. Y., 78 ; s. c, 32 Am. Rep., '114:, rev'g 15 Eun, 256 ; O'Dea vs. O'Dea, 101 id., 23; 4: N. E. Rep., 110; Cheever vs. Williamson, 9 WaU. {U. S.), 108 ; Avery vs. Slack, 17 Wend. {JST. Y.), 85.) = Wheelock vs. Lee, 5 Ahh. N. C, 72 ; s. c, 74 JV. Z, 495. s. p., Mathie vs. Mackintosh, 40 Wise, 120. (Holding that the objection is never waived, but may be taken at any time.) § 673. — Exclusive jurisdiction of another court. — The objection that the cause of action^ or a party* is one of which another court has exclusive jurisdiction, is not waived by failing to plead it and going to trial on other issues ; for it is an entire want of jurisdiction of the sub- ject. ' Green vs. Creighton, 10 Smed. & M. {Miss), 159 ; s. c, 48 Am. Dec., 742. (Settlement of administrator's ac- count in equity, where Probate Court is held to have exclusive jurisdiction.) ' Callahan vs. Mayor, etc., of New York, 66 N. Y., 656, § 675.J Objections to Jukisdiction. 571 affg 6 Daly, 230. (Where by statute exclusive jurisdic- tion is given to certain courts in all actions against a city, the appearance and answer of such city in an action in a court not specified by the statute is not a waiver of the question of jurisdiction, and does not con- fer jurisdiction.) Mannhardt vs. Soderstrom, 1 Binn. (Penn.), 138. (A State Court has no jurisdiction against a consul of another country ; and whenever such defect in jurisdiction ap- pears, the court will quash the proceedings, although the consul may have pleaded to the general issue.) The objection that bail are sued in a court other than that where the original suit was (Burtus vs. McCarthy, 13 Johns., 424), does not go to the jurisdiction; and should be taken, not by plea, but by motion. Matthews vs. Cook, 13 Wend. {N. Y.) 33. So also where the original suit was in another State, Otis vs. Wakeman, 1 Bill {N. Y.), 604. § 674. Objection to service, by answer. — It is the bet- ter opinion that even in a court of general jurisdiction, while an unqualified appearance waives all objection to jurisdiction founded on the mode or place of service of summons, such objections, not appearing on the face of the complaint, may be taken by answer, and are not, under the New Procedure, waived by being joined with defences on the merits. [The real question is whether a defendant, whom it is attempted to subject to the jurisdiction by a false or unfounded allegation of service, must submit to have the fact determined on affidavits, or whether he has a right to examine witnesses, and, if the cause is one for a jury, to have the issue determined by them.] Hamburger vs. Baker, 35 Sun, 455 ; s. c, 21 N. Y. WeeUy Dig., 213 ; Jones vs. Jones, 108 N. T., 415 ; s. c, 13 N. Y. State Rep., 838. IContra, Dailey vs. Kennedy, 64 Mich., 208; 31 North West. Rep., 125. (Eeviewing cases.)] Ehriman vs. Teutonia Ins. Co., 1 Fed. Rep., 471 ; s. c, 9 Ins. L. J., 393. S g75. — mferior cowrt of local jurisdiction — Ser- 573 Abbott's Brief on Pleadings. Issues of Pact, [§ 676. mce witliin limits. — In an inferior court of local Jurisdic- tion, the objection being founded on a statute allowing the court to take Jurisdiction of certain subjects provided the defendant be served within the limits, the objection goes to the subject-matter, and not merely to the' person,^ and it may be taken by answer,^ and a general appear- ance does not waive the answer.^ • Wheelock vs. Lee, 74 if. T., 495 ; s. c, 5-^66. N. C. (N. 7), 72. ' Sullivan vs. Frazee, 4 Edbt. {N. Y.), 616. ' Wheelock vs. Lee, above cited. [The application of this rule in various States is very diverse, the statutes, and the view as to what is an inferior court, varying. Compare Sims vs. Sims, 50 Oa., 572 ; Wallace vs. Cox, 71 III, 548 ; Chapell vs. Shuee, 117 Ind., 481 ; 20 JV. East., 417 ; Meunch vs. Breitenbach, 41 loiva, 527 ; Allen vs. Miller, 11 Ohio St., 374 ; Keiser vs. Yandes, 45 Ind., 174; Farmers' & M. Ins. Co. vs. Buckles, 49 III, 482 ; Hardy vs. Adams, 48 111, 532 ; Whitaker vs. Forbes, 68 N. Ga., 228 ; Powers vs. Ames, 9 Minn., 178 ; Young vs. Young, 18 Minn., 90.] § 676. — residence, etc. — The objection that a local court of limited Jurisdiction has not Jurisdiction by rea- son of "the residence or place of business of a party, etc., if the Jurisdictional facts are sufficiently alleged by the plaintiff, may be taken by answer. And under the New Procedure the defence is not waived by being Joined with a defence on the merits, nor by being accompanied by a general appearance. Heenan vs. N. Y., West Shore, etc., E. Co., 34 Run (N. Y.), 602 ; aff'g 1 How. Pr., JV. ;S'., 53 ; s. c, 6 N. T. Civ. Pro. R., 348. § 677. Federal question cases. — To give Jurisdiction on the ground that the case is one arising under the Con- stitution and laws of the United States, it must affirm- §677.] Objections TO JuRiSDiCTioiir; Fedebal Questions. 573 atively appear that some title, right, privilege, or immunity on which recovery depends will be defeated by some construction of the Constitution or law of the United States, or sustained by the opposite construction.^ An allegation in the complaint that this is so, is not enough.^ The record ^ must state facts from which the court can see that the decision of the case necessarily^ depends upon such a question.^ If defendant has answered, the fact that plaintiff's complaint makes such a claim is not enough if the answer admits the complaint as to that ground, for no federal question remains to be determined.® If a Federal question be shown to exist, the jurisdic- tion is not excluded by the fact that other questions are involved.''' ' Starin vs. New York, 115 U. S., 248. ' Holland vs. Ryan ( U. S. Cir. Gt. Dist. Colo.), 17 Fed. Rep., 1. (The complaint averred that the action involTed the "construction and consideration of the laws of the United States upon the subject of mines and mining, and the validity and title to mining claims occurring or aris- ing thereunder." Held, not sufficient to show a cause of action arising under the laws of the United States. The question arising under those laws and the differ- ence of opinion between the parties as to the meaning and effect of the laws should be stated. Action dis- missed on motion.) Illinois Cent. E. Co. vs. Chi., B. & N. R. Co. {U. S. Cir. Ct. N. D. Ill), 26 Fed. Jiep., 477. (Suit to enjoin a railway from further prosecution of condemnation pro- ceedings to obtain a right of way. The bill averred that the plaintiff railroad company claiming under an act of Congress making the grant, its right of way was not subject to the State's right of eminent domain. Sdd, the mere assertion of the right was not of itself sufficient to confer jurisdiction. The Court must see from the facts and averments in the record that a Federal ques- tion was really and substantially involved. Bill dis- missed on motion. Dowell vs: Griswold, 5 Sawy. (U. S. Cir. Ct.), 39. (Hold- ing also that it is not enough that a Federal question is incidentally involved.) 574 Abbott's Brief on Pleadings. Issues of Fact. [§ 677. s. p., Manhattan Ey. Co. vs. Mayor, etc., of City of New York, 18 Fed. Bep., 195. (Denying motion for injunc- tion.) ' Gold Washing & Water Co. vs. Keyes, 96 U. S., 199, 203. (The Court say: " Before a circuit court can be required to retain a cause under this jurisdiction, it must in some form appear upon the record by a statement of facts 'in legal and logical form,' such as is required in good pleading (1 Chit. PI., 213), that the suit is one which really and substantially iuTolves a dispute or contro- versy as to a right which depends upon the con- struction, or effect of the Constitution or some law or treaty of, the United States. If these facts do not appear by the pleadings, they must be shown in some form — as by a petition for removal.") Eailroad Co. vs. Mississippi, 102 U. 8., 135. (Holding that it is enough if it appears by the answer.) 'Levy vs. City of Shreveport {U. 8. Gir. a. W. D. La.), 28 Fed. Bep., 209. (The case must show a question that does arise, or will necessarily arise, under the Consti- tution or laws of the United States, and not one that may or may not arise. Plea to jurisdiction ; suit dis- missed.) [Compare Miller vs. Tobin, 18 Fed. Bep. 609 {U. S. Cir. Ct. D. Oreg.,) holding that where it appears from the pleadings of both parties that a Federal question is involved, a cause will not be remanded because of the insufficiency of the answer to raise an issue. The Court say : " As soon as the suit was commenced, and before there was any defence in the case, or it was known that there would be any, the right of removal attached, and continued until the time of filing the petition for removal expired. ... So long as the answer does not expressly admit the plaintiff's cause of action, but makes or attempts to make a defence thereto, however unskilfully stated, or insufficient in law, the right of removal is not prejudiced thereby."] 6 See Kartell vs. Tilghman, 99 U. 8., 547. 6 Stewart vs. McGruder (C. Ot. E. D. Va.), 11 Wash. L. B. 565. § 678. — pa/rticula/r classes of cases. — A suit by or against a corporation created by or under an act of Con- gress is one arising under the laws of the United States within the rule.' So of a suit on a marshal's bond.* § 680.] Objection to Jubisdiotion; Citizenship Cases. 575 But a suit on 2k judgment * recovered in a Federal court, or a defence ' founded on such, a judgment, is not ; nor is a suit founded on a grant ' made by Congress ; unless the controversy presented by the pleadings in the cause necessarily involves such a question. A suit involving a right founded on an act of Con- gress — such as a patent right — is not, if the answer admits that right, and the only controversy is upon some other question, such as the contract between theparties." ^ Union Pacific E. Co. vs. Myers (Pacific Eailroad Ee- moTal Cases), 115 JJ. S., 1. ' Feibelman vs. Packard, 109 U. 8., 421. Bachrack vs. Norton, 132 U. S., 337. ' Provident Savings Life Assur. Soc. vs. Pord, 114 U. S., 635. " Carson vs. Dunham, 121 U. 8., 421. ' Illinois Cent. E. Co. vs. Chicago, B. & N. E. Co., 26 Fed. Rep., 477. s. P., Exp. Smith, 94 U. S., 455. ' Kartell vs. Tilghman, 99 U. S., 547. § 679. Citizenship cases. — If the requisite citizenship to give jurisdiction does not appear by plaintiff's plead- ings, or in some other part of the record, the objection that it does not exist may be raised at any stage of the proceedings. Dodge vs. Perkins, 4 Mas. (JJ. 8. Cir. Ot), 435. Grace vs. Am. Centr. Ins. Co., 109 U. 8., 278, and Cas. Cit. g ggO. — citizenship appealing in other pa/rts of the record. — The rule that citizenship need not necessarily be averred in tlie pleadings, if it otherwise affirmatively appears by the record, does not apply to papers improp- erly inserted in the transcript, and not constituting any legitimate part of the record. Eobertson vs. Cease, 97 U. &, 646. (Judgment therefore reversed.) 576 Abbott's Bkief on Pleadings. Issues of Pact. [§ 681. § 681. — Parties coUusively made or joined. — Under the statute,^ a party coUusively and fraudulently joined for the purpose of giving the Court apparent jurisdiction should be disregarded, and the suit should be dismissed by the Court of its own motion.^ ' Act of Cong, of 1875, c. 137 ; act of 1887, Mar. 3. " Farmington vs. Pillsbnry, 114 U. 8., 138, 144. In Eaymond vs. Butterworth, 139 Mass., 471 s. 0., 1 North East. Bep., 126, in the State court, and not by force of any statute, it is said that such an objection must be pleaded by abatement ; and hdd, that it cannot be first raised on error or appeal, s. P., Parsons vs. Denis {E. D. Mo., 1881), abstr. in 12 Be- porter, 2. § 682. — Hanging parties to affect jv/riadietion. — Jur- isdiction cannot be conferred by the pleader ranging the parties on one or the other side for that purpose ; but the Court vpill look at the actual interests of the parties as disclosed by the pleadings, and consider them as ranged accordingly, for the purpose of determining the objection to the jurisdiction. Bland vs. Fleeman, 29 Fed. B&p. {U. 8.), 669. (Approved and followed on demurrer in Bland vs. Freeman, 17 Wash. L. Rep., 410.) § 683. Amendi/)ig to defeat ohjectdon. — If the facts vsrere such at the commencement of the action that alle- gations of the necessary jurisdictional facts -vyould not then have been true,^ or a claim of an amount or the relief proper to give jurisdiction could not have been maintain- able, then the Court cannot, by allov^ing amendment, gain jurisdiction without consent or waiver.^ But the Court may allow an amendment by adding jurisdictional allegations which would have been true if § 683. J Objection to Jueisdiction; Citizenship Oases. 577 made at the commencement of the action, or increasing the amount demanded, if the claim would not have been as matter of law unsustainable on the face of the plead- ing.* Yet if the amount or relief was fixed by original process,* or by actual service of the original pleading, the Court cannot take jurisdiction by amendment without notice to or appearance by defendant. ' Cromwell vs. Ounningham, 4 Sandf. Ch. {N. Y.), 384. (A bill for foreclosure, against defendants not residing in the circuit where the action was commenced ; no de- fence was made. Held, the bill could not be amended by adding a defendant who did reside within the cir- cuit in order to give the Court jurisdiction.) Charlotte Planing Mill vs. McNinch, 99 N. (J., 517. (The complaint in an action in the Superior Court against a husband and wife merely alleged a debt less than $200, of which a justice of the peace had jurisdiction. After- wards, by consent and order of Court, the complaint was amended by adding a second cause of action, in which it was alleged that the debt was chargeable on the wife's separate estate, and judgment was demanded that the debt be enforced by a sale of her real property if neces- sary. Kdd, that the Court properly refused to dismiss the complaint as to the second cause of action, although it had no jurisdiction over the first cause of action originally pleaded. It seems that the Court might have allowed the amendment without consent.) ° Dwyer vs. Eathbone, 17 N. Y. St. Hep., 443 ; s. c, 2 N. Y., Supp., 170. (In an action in the County Court the complaint stated that the plaintiff's services were rea- sonably .worth $1000 or thereabout and defendants had only paid $500 or thereabout, and demanded that an account be taken and judgment be rendered for whatever sum found to be due. Hdd, that the Court below properly allowed the complaint to be amended so that the prayer for relief would read, "demands judgment for the sum of $1000 or any less amount," etc. Under the liberal construction of the pleading required by the Code, the original complaint, although indefinite, was not to be construed as demanding more than $1000. The effect of the amendment therefore, was merely to make the complaint more definite and certain. Mclntyre vs. Carriere, 17 Hun {N. Y.), 65, cited and approved.) 578 Abbott's Brief ots Pleadings. Issues of Pact. [§ 684. Jolinston vs. Tippe, 33 Fed. Rep., 530. (Where a bill for specific performance of a contract for the sale of land is silent respecting its value, except in the con- tract set forth the price is $1000, an objection to the want of jurisdiction under the act of March 3, 1881, is obviated by an amendment to the bill alleging that the land is now worth $3000.) Grether vs. Klock, 39 Conn., 133. (Where a bill of par- ticulars, filed as a part of the record, reduces the sum claimed so as to deprive the Court of jurisdiction, nevertheless the Court may exercise control over the cause for the purpose of allowing such bill of particu- lars to be so amended, within a reasonable time, as to bring the matter in demand within the jurisdiction, if satisfied that it was drawn in its imperfect form by in- advertence of counsel or by mistake, and is not bound to dismiss the action. Judgment affirmed.) Whitney vs. Sears, 16 Vt., 587. (On an appeal from a justice's court the County Court permitted the plaintiff to raise the claim for damages in his writ from the justice's jurisdiction to $1000. The defendant at a sub- sequent term moved to dismiss the suit for want of original jurisdiction in the justice. The plaintiff by leave of court reduced his claim to the original sum. Held, the County Court might allow the second amend- ment, and if it was made before any trial was had in the case : the jurisdiction was not affected by the • first amendment.) ' Mclntyre vs. Carriere, 17 Hun {N. Z), 65. (The County Court has no power to reduce amount claimed in sum- mons where it exceeds f 1000, as it had no jurisdiction before the amendment. The Court here distinguishes McDonald vs. Truesdail, decided by it in Nov., 1876, where the summons was served without the complaint, and claimed no sum whatever. Under such conditions the complaint demanding damages in excess of the jurisdictional limit was properly allowed to be amended.) § 684. — In United States Courts, — The objection that plaintifE's pleading does not sufficiently allege citizenship to give jurisdiction may be cured by amendment at the trial." But an amendment of the pleadings by setting up a § 685.J Motion to Dismiss fob Insufficient Pleading. 579 Federal question, in order to give the Federal court jurisdiction, will not be allowed in a doubtful case.^ • Kelsey vs. Penn. E. Co., 14 Blatck {U. S. V. Ct.), 89. " Eae vs. Grand Trunk B'y, 14 Fed. Rep., 401. (So held, when it appeared at the trial that the citizenship of the par- ties was insufficient. Action dismissed.) 2. Motions td. Murphy vs. McGraw, 74 Mich., 318 ; s. 0., 41 JV^orth West.. Bep., 917. § 801. Allegation of execution. — An allegation of " making," " executing," " indorsing," and the like, lets in evidence of delivery, and other formalities necessary to valid execution. Garcia vs. De Satrustegui, 4 CoH., 244. Purdy vs. Vermilyea, 8 N. T., 346. Eobert vs. Good, 36 N. Z"., 408, 410. s. p., Demueeeb, § 164. § 802. Contract signed hy agent. — If a contract is pleaded by legal effect, an allegation that the party made § 805. ] Under Paeticulae Allegations ; Ooktkacts. 663 tlie contract lets in tlie instrument, thougli signed by an agento Eegents of University vs. Detroit Young Men's Soc, 12 Mich., 138. {Dictum.) s. p., § 150, etc., Demueeee. § 803. Agenfs atithority. — In an action upon a con- tract made througli an agent, a general denial lets in evidence that the alleged agent had no authority. Dayton Ins. Co. vs. Kelly, 24 Ohio St., 345. (Holding that an allegation in tlie answer tliat the agent and secretary of the defendant company had no authority to make the contract of insurance was not new matter requiring a reply, as it might be proved under a denial.) s. P., § 168, Demueeeb. § 804. Agency or representative ca/pacity. — A general denial to a complaint stating a transaction as had between the parties individually lets in evidence that they acted in a representative character, to disprove individual liability. Koehler vs. Adler, 91 N. T., 657. (Action for a loan made by check. Held, that a general denial let in evidence that the parties were reespectively treasurer and presi- dent of a corporation, and the plaintiff depositing and drawing the moneys in his own name ; and that the check was given in the corporate business. {^Compare Ludwig vs. Gillespie, 105 N. Y., 653.]) Stark vs. McCloskey, 19 N. Y. State Bep., 110 ; s. c, 2 IST. Y. Supp., 1^1. (Goods sold.) See also Demueeee, § 169. [Of course the contract, if under seal, might exclude oral evidence.] § 805. Legal effect. — A contract sufficiently pleaded in general language or according to its legal effect is ad- missible in evidence, although its exact provisions or words have not been set forth. 664 Abbott's Brief on- the Pleadings. Evidence [§ 806. Brown vs. Champlin, 66 N. Y., 214, 219. (Eecovery sus- tained on a bond, though the relations of the parties and nature of consideration were not alleged.) Morse vs. Gilman, 16 Wise, 504. (Holding exclusion of evidence improper, although the complaint threw little light on the specific provisions of the contract.) Swetland vs. Swetland, 3 Mich., 482, 485, (adding "as in and by said, etc., when produced, will more fully ap- pear," — lets in omitted or variant parts.) § 806. Variance hy not alleging immaterial part. — If the part of the contract material to the cause of action is substantially alleged, the contract when offered in evidence is not to be excluded because of including other provisions not affecting the alleged breach. Blackstone Nat. Bank vs. Lane, 80 Me., 165 ; s. c, 6 W. Eng. Bep., 148 ; 13 Atl. Bep., 683. (Memorandum on note that it was held as collateral security.) Detroit, etc., E. E. Co. vs. Forbes, 30 Mich., 165. (Inde- pendent stipulations.) Scott vs. Leiber, 2 WcTid. {N. T.), 479 ; Williams vs. Healey, 3 Den. {N. Y.), 363 ; W. P., 1818, Denton vs. Bours, Anth. N. P., Ul ; Hoad vs. Inman, 4 Johns. Ch. {N. Y.), 437; Tomlinson vs. Miller, 7 Ahi. Pr. N. S. {N. Y), 364. Brock vs. Knower, 37 Hun, 609 ; s. c, 22 N. Y. Weekly Dig., 510. • Piatt vs. Longworth, 27 Ohio St., 159 ; Gaines vs. Union, etc., Co., 28 id., 418. [See also, s. p., Hoke vs. Wood, 26 Md., 453 ; Stearns vs. Barrett, 1 Pick.^{Mass.), 443 ; Couch vs. IngersoU, 2 id., 292 ; s. p., Warne vs. Prentiss, 9 Mo., 544.] At common law where a pleading purports to recite a specialty or a matter of record in hcec verba the adverse party can crave oyer, and if there was a slight misstate- ment could demur for variance. Ferguson vs. Howard, 7 Grarich ( U.S.), 408 ; Bishop vs. Quintard, 18 Conn., 395.] § 807. Alternative contract. — An allegation of an absolute contract to do a specified thing does not let in evidence of an alternative contract to do either of two things or to perform in either of two methods, whether the alternative be at the option of the plaintiff or of the defendant. § 808.] Under Particular Allegations ; Contracts. 665 Plaintiff should allege the alternative contract and the election made by himself, etc., or defendant's non- performance of both alternatives. This, at least, is the rule at Common Law. Stone vs. Knowlton, 3 Wend. {N. Y.), 374. (Allegation of con- tract to transport twenty tons. Proof of contract to transport fifteen or twenty. Variance held to justify nonsuit.) Hatch vs. Adams, 8 Coiv. (N. Y.), 35. (Allegation of con- tract to pay specified rate of wages. Proof of contract to pay at different rates according as plaintiff should elect to board himself or board with the employer. Variance justified nonsuit.) [See s. p., Stanwood vs. Scovel, 4 Pick. (Mass.), 422 ; . Shepard vs. Palmer, 6 Conn., 95 ; Bunnel vs. Taintor, 5 id., 273.] [But now the variance may frequently be disregarded.] Compare Harmony vs. Bingham, 12 JSf. Y., 99 ; aff'g 1 Duer, 209. (Defendant covenanted to carry goods within a certain time, and to deduct from the freight for every day's default. Held, not alternative cove- nants, and a declaration by the owner to recover back freight paid under protest need only set forth the first, and aver a breach.) Under the general issue at common law, a defendant who held the right of election may prove his election of the contrary alternative to that relied on by plaintiff. Mosher vs. Eogers, 117 lU., 4A&. [As to pleading according to legal effect, see Demurrer, § 171.] § 808. Modification of cont/ract. — An allegation of an original contract does not let in evidence of its modifica- tion,^ unless it be a mere extension of time.^ But an allegation of the contract as modified lets in evidence without having alleged the terms of the original contract, and in what particulars it was modified.^ The defence that the contract alleged by plaintiff as the ground of his action had been changed by agreement of the parties is an affirmative defence, which must be pleaded in order to let in evidence of the change,* 666 Abbott's Brief on the Pleadings. Evidekce [§ 809. ' Lanitz w. King, 93 Mo., 513 ; s. c, 6 South West. Bep., 263; 12 West. Eep., 248 ; Henning vs. United States Ins. Co., 47 Mo., 425. Pharr vs. Bachelor, 3 Ala., 237. (Where a contract has. been substituted for another, the substituted contract should be declared on.) Buchanan vs. Beck, 15 Oreg., 563 ; s. c, 16 Pacif. Bep., 422. Tumbridge vs. Eead, 3 N. Y. Supp., 908 ; s. c, Tunbridge vs. Eead, 22 N. Y. State Bep., 764. (Error not cured by subsequent amendment to defeat motion for new trial.) [The allegation might be amended if the evidence was received without objection. Fallon vs. Lawler, 102 N. Y., 228, 233.] s. p., Salter vs. Ham, 31 JSf. Y., 321. (Complaint alleging partnership in original and in modified contract not sustained by proof of partnership in original contract only.) " Crane vs. Maynard, 12 Wend. {N. T.), 408. (Holding that where the only breach is in the manner or fact of per- formance, and not as to the time of performance, plain- tiff may prove without having alleged it a modification of the contract which merely extended the time of the performance for a period which expired before the ac- tion was brought, and may recover on the first agree- ment, although the agreement for extension contained also a superfluous stipulation to perform within the extended period.) ' White vs. Soto, 82 Gal, 654. ' Wallace vs. Blake, 30 N. Y. State Bep., 248. Lanitz vs. King, 93 Mo., 513. (General denial does not let in extension of time not alleged.) s, p., Tuskaloosa Cotton Seed Oil Co. vs. Perry, 85 Jla., 158; S.G., 4: So. Bep., 635. § 809. Conditions precedent, performed. — A party seeking to enforce a contract cannot prove the perform- ance of conditions precedent on Ms part, unless he has alleged it. Edgerly vs. Farmers' Insurance Co., 43 Iowa, 587. Snow vs. Johnson, 1 Minn., 48, (Promise to pay a sum in goods when called for. Allegation of demand for § 811.] Under Paeticulak Allegations ; Contracts. 667 the money will not let in evidence of demand of tlie goods.) § 810. — Breach, pa/rticulo/rs. — In those cases where a breach of condition relied on as a ground of forfeiture ought to be alleged in detail/ a general allegation of breach will not let in evidence.^ ' Section 193, Demuebee. ''Dictum in Jennings vs. Grand Trunk Ey. Co., 52 Hun, 227, • 232; s. c, 23 N. Y. State Eep., 15 ; 5 JV. Y. 8upp., 140. (Carrier's defence of breach of printed conditions on way-bill. Allegation " that the notices required by said agreements were never given as thereby required," deemed insufficient to enable defendant to show that the notice was too late.) In Weed vs. Schenectady Ins. Co., 7 Lans. {N. Y.), 452, the Court were divided on a similar question. [The better opinion is that if the evidence was received without objection, and was not otherwise competent, the objec- tion is waived.] § 811. — Evidence of hreach, limited hy allegation. — A sufficient allegation of a breach lets in evidence of any specific act or omission which falls within the scope of the allegation.' But if with an allegation of breach even as broad as the contract is coupled a specification of particular breaches as a part of the same assignment the evidence is limited to instances within those specifications, and the general allegation does not let in others not within those specifications.^ ' Trimble vs. Stilwell, 4 E. D. Smith {N. Y.), 512, 515. (Building contract. Allegation that the work was not done in proper manner, sufficient at the trial to let Jn evidence of specific defect.) s. P., Thompson vs. Thompson, 79 Me., 286; 4 N. Engl. Bep., 487 ; 9 Ail. Rep., 888. (Divorce : Evidence of failure to provide medicine, admissible under allegation of failure to support.) 668 Abbott!s Brief oit the Pleadings. Eviden-ce [§ S33. ' Eeed vs. Hayt, 51 N. Y. Super. Gt. (J. & S.), 121, aff'd in 17 State Bep., 137. (Allegation that " plaintiff lias not duly performed all the conditions on his part, but on the contrary," etc., thereupon proceeding to enumerate cer- tain things which it was alleged showed that all the conditions had not been performed. Held, that this only put in issue the particular breaches specifically referred to.) 1 Chit. PI, 16 Am. ed. *345. (Defendant had not used the farm in a husbandlike manner, " but on the contrary had committed waste," does not let in evidence of mis- conduct not amounting to waste.) Otherwise where the general allegation of non-perform- ance and the specific instances of breach are separately stated in such manner as to give the adverse party fair notice that the general allegation is not merely formal and introductory to the specification. See, for illustra- tion, Trimble vs. Stilwell, 4 E. D. Smith [N. T.), 512, 515. § 812. — excuse. — A complaint on an express con- tract, allegina; plaintiff's performance, does not let in evi- dence of an excuse for plaintiff's non-performance.^ Nor under sucli complaint can excuse be shown in rebuttal, ^ where plaintiff''s non-performance is set up as a defence. But amendment may be allowed so as to let in the evidence, if the adverse party is not thereby materially injured.^ Where it is permissible to disregard the express con- tract, and sue upon an implied one, the express contract and excuse for its non-performance, although not alleged, may be given in evidence in support of such an action,* or in rebuttal, if the express contract and its non-per- formance is set up as a defence.^ ' Purdue vs. Noffsinger, 15 Ind,, 386. Bernhard vs. Washington Life Ins. Co., 40 Iowa, 442. s. p., Fauble vs. Davis, 48 Iowa, 462. Colt vs. Miller, 64 Mass. (10 Cush.), 49. s. p.. Palmer vs. Sawyer, il4 Mass., 1, 14. Oakley vs. Morton, 11 N. F., 25. s. p., Crandall vs. Clark, 7 Barh. (iV. Y.), 169. § 813. J Under Particular Allegatioks ; Contracts. 669 Baldwin vs. Munn, 2 Wend. (N. Y.), 399 ; s. c, 20 Am. Dec., 627. [Contra, Maddox vs. German Ins. Co., 39 Mo. App., 198; s. P., St. Louis, etc., Yentilating Co. vs. Bissell, 41 id., 426.] [The rule is otherwise of excuse for not tendering where tender is not a part of the contract. See Tender, here- after ; Abb. Tr. Ev. {N. Z), 727.] [Otherwise also of a statutory excuse if the Court may take judicial notice of it, for it qualifies the contract itself. Baxter vs. Brooklyn Life Ins. Co., 44 Hun (N. Y.), 184. ' Eiseman vs. Hawkeye Ins. Co., 74 loiva, 11 ; s. c, 17 Ins. L. J., 843. Boon vs. State Ins. Co., 37 Minn., 426 ; s. c, 34 North West. Bep., 902. (Holding that a reply setting up an excuse is a departure.) s. p.. Potts vs. Land Co., 47 N. J. L., 476. Compare Trainor vs. Worman, 33 Minn., 184 ; s.c, 25 North West. Rep., 401. (Here the complaint alleged perform- ance: the answer set up a counterclaim for non-perform- ance. Plaintiff by his reply pleaded a waiver of per- formance. Hdd, that plaintiff could not recover with- out proving performance ; nevertheless evidence of a waiver was admissible to defeat the counterclaim.) =• Hosley vs. Black, 28 JSf. Y., 438 ; s. c, 26 How. Pr., 97 ; s. p., Dauchy w. Tyler, 15 How. Pr. {N. Y.), 399 ; Lefler vs. Sherwood, 21 Hun {N. Y), 573. * See §§ 799, 800 as to allegation of an implied and proof of an express contract. ' Wolfe vs. Howes, 20 iV^. Y., 197. S. P., Lord vs. Wheeler, 67 Mass. (1 Gray), 282. But where a party for a collateral purpose proves a con- tract not pleaded and non-performance of it, — as where its performance was to be the consideration for the note sued on, — the other can prove a waiver not pleaded. Chamberlain vs. Painesville, etc., ]J. Co., 15 Ohio St., 225. Compare Little vs. Mercer, 9 Mo., 216. (Holding that wrongful prevention of performance of a sealed con- tract does nqt entitle plaintiff to recover on a quantum meruit for non-performance ; questioning Linningdale vs. Livingston, 10 Johns. {N. Y.), 36.) § 813. Denials. — Under a general denial of a com- plaint alleging a contract/ or a denial of the contract set 67.0 Abbott's Brief on- the Pleadings. Evidence. [§ 814 forth in the complaint,^ the contract really made, or the part which differs from that alleged, is admissible. Such denial lets in evidence that the contract was never delivered.^ ' Hebbard vs. Haughian, 70 N. Y., 54. Dietricli vs. Dreutel, 43 Eun {N. Y.), 342. (Arrangements under which dealings between the parties were carried on prior to the time of the sale of goods for which the action was brought, and that no new arrangements were made as to subsequent dealings.) Gove vs. Wooster, HiU & D. Supp., 30. (Inversion of place of covenant by mistake of scrivener.) And see Denial. Taylor vs. Ballard, 17 N. Y. State Rep., 598. (Evidence that the agreement was not to purchase the quantity alleged, but only so much of it as was good.) " Marsh vs. Dodge, 66 N. Y., 633, rev'g 4 Hun, 278 ; s. c, 6 Swpm. Ct.{T. & C), 568. (Action for royalties under a license for the manufacture and sale of a patent article. A denial lets in another instrument made at the same time, in reality forming a part of the agreement set forth in the complaint, whereby the amount of the royalties were materially reduced.) = Biederman vs. O'Conner, 117 LI, 493 ; s. c, 7 North East. -Bep., 463. But not that it was deposited in escrow, and wrongfully delivered before condition performed, for this would operate to surprise. Smallwood vs. Clark, 1 Tayl. {N. C), 281. § 814. — statute of frauds. — Plaintiff cannot, against objection, prove a contract not valid under the statute of frauds, if the answer is only a general denial or denial of the contract alleged.^ But he may prove an oral contract with facts bringing it vsdthin an exception in the statute.^ ' May vs. Sloan, 101 JJ. &, 231; Dnnphy vs. Eyan, 116 id., 491 ; Allen vs. Eichard, 83 Mo., 55 ; Springer vs. Kleinsorge, 83 id., 153. [Contra, Gordon vs. Madden, 82 id., 193.] Eeynolds vs. Dunkirk & State Line E. E. Co., 17 Barb, § 815.] Under Particular Allegations ; Contracts. 671 (JV. Y.), 613. [Compare Marie vs. Garrison, 13 Ahh. JY. a {N. Y.), 210, 278, 306 (Prof. Dwight, referee.)] Morrison vs. Baker, 81 N. C, 76. • But if fhe evidence is competent for another purpose it should be received, audits eifect limited by instructions. Euggles vs. Gatton, 50 111, 412. ' Brock vs. Knbwer, 37 Hun {N. Y.), 609 ; s. c, 22 WeeEy Dig., 510. (Delivery of another part of the lot of goods.) § 815. — — admission of contract. — If defendant's answer admits the alleged contract, the protection of the statute is waived ; unless the admission is coupled with an express reference to the statute beiug as relied on by- defendant.' Coupling the admission with an objection that the contract is void in law, is not enough.^ Under the New Procedure, it is the better opinion that if the complaint shows that the contract was not valid under the statute it is insufficient,^ and the statute there- fore avails at the trial ; and that if the complaint does not show the invalidity, an answer stating the!*facts which show that the contract was not valid under the statute is sufficient without express reference to the statute. ' Connor vs. Hingtgen, 19 JVebr., 472 ; s. c, 27 N. West. Bep., 443. Duffy vs. O'Donovan, 46 N. Y, 228. Porter vs. Wormser, 94 N. T., 431. Ashmore vs. Evans, 11 N. J. Eq. (3 Stock.), 151 ; Wakeman vs. Dodd, 27 N. J. Eq., 564. (So holding even where the contract was alleged as an oral contract.) Notwithstanding the admission, the statute avails at the trial if so referred to. (Burt vs. Wilson, 28 Cal., 632.) ' Vaupell vs. Woodward, 2 Sand/. Ch. {JV. T.), 143. Battel i;s. Matot (R, 1886), 5 Ail. Rep., 479. (So held of an allegation that the contract "was never reduced to writing in any form.") s. P., Marston ws.'Swett, 66 N. Y, 206; rev'g 4 Hun, 163. (Holding that an answer not denying either the making of the alleged contract nor that it was in writing, etc., is not sufficient to let in the statute of frauds as a de- fence, even though it aver that the contract was made on express condition that plaintiff should execute and 673 Abbott's Beief on the Pleadings. Evidence [§ 816, deliver an instrument in writing embodying a part of its terms, and had refused to do so.) ' See § 166, Demueeee. ' Haight vs. Child, 34 Barh. {N. Y.), 186. § 816. Plaintiff'' shreacli of condition precedent a&aha/r. — It seems the better opinion that where, by reason of the condition being negative, the rule that the burden of proof is on him who has the affirmative dispenses with proof from plaintiff in the first instance, — as in the case of the forfeiture clauses in insurance policies^ and carriers' contracts,* — breach of condition must be specially alleged by defendant in order to let in evidence of it. In other cases, as plaintiff must allege and prove per- formance, a general denial lets in evidence of breach,^ ex- cept where the statute giving a short form of alleging due performance prescribes a different rule.* ' Smith vs. Home Ins. Co., 47 Hun {N. Y.), 30 ; s. C, 14 N. Y. State Sep., 106. s. p., Bennett vs. Maryland Fire Ins. Co., {U. S. G. Ct.) 17 Alb. L. J., 363. (Following State court practice in U. S. court.) Pettinger vs. Providence Washington Ins. Co. {Colo.), 13 Wash. L. Rep., 514.. Pierce vs. Cohasset M. F. Ins. Co., 123 Mass., 572. = Jennings vs. Grand Trunk Ey. Co., 52 Hun, 227, 232 ; s. a, 23 State Rep., 15; 5 N. Y. Supp., 140. (Allegation " that the notices required by said g;greements were never given as thereby required " deemed insufficient to en- able defendant to show that the notice was too late.) ' Chatfield vs. Simonson, 92 W. Y, 209, 215. (General denial, in action for value of services, lets in breach of duty on the employment.) Weinberg vs. Blum, 13 Daly (N. Y.), 399. Child vs. Detroit Mfg. Co., 72 Mick, 623. s. p., Moritz vs. Larsen, 70 Wise, 569 ; s. c, 36 Worth West. Rep., 331. S. p., at common law, Scott vs. Kittatiny Coal Co., 89 Pa. St., 231 (inferior quality to that contracted for) ; Keen vs. Eauck, 8 ^ ^. U., 96 (misconduct in employ- ment). Gaverly vs. McOwen, 123 Mass., 574. (Holding that letting §818.] Under Particulae Allegatioks; Contracts. 673 in tlie evidence under a defective allegation of breach was an immaterial error, because there was also a gen- eral denial.) * Halferty vs. Wilmering, 112 U. S., 713 ; s. c, 28 Law. ed., 858. (Here the complaint contained the statutory short allegation that plaintiff had duly performed all the conditions on his part. JSdd, reluctantly, that under the Code of Iowa a general denial by a defendant of each and every allegation of a petition which alleges the performance of a contract does not controvert the performance of a condition, unless the facts relied on are specifically stated.) [See § 183, etc.. Demurrer.] § 817. Denial; with specifications of breach. — If, with, a denial of plaintiff's allegation of performance of condi- tions on his part, the answer couples allegations of par- ticular breaches as a part of the same statement, they may be deemed to qualify the denial ; and evidence of other breaches than those specified is not admissible.^ Otherwise where, besides allegations of specific breaches, there is a separate and sufficient general allega- tion of non-performance as a distinct ground of defence.^ ' Eeed vs. Havt, 51 N. Y. Super. Ct. {J. & S.), 121, aff'd in 17 State Eep., 187. ' Trimble vs. Stilwell, 4 E. D. Smith {N. Y.), 512. § 818. — want of consideration. — Original want of consideration (as distinguished from fraud in inducing a contract for a pretended consideration, and as distin- guished from failure of consideration) may be shown un- der a general denial, .provided the complaint properly contains a formal allegation of consideration.^ If the contract is so pleaded as to show that it im- ports a consideration, — as in the case of negotiable paper,^ or a sealed instrument,^ — a general denial does not let in evidence of want of consideration. If it is not so pleaded, and the complaint fails to 674 Abbott's Beiee ok the Pleadings. Evidence [§ 819. supply the necessary allegation of consideration, the com- plaint is insufficient.* A specific denial that there was any consideration lets in evidence that there was none, whether considera- tion was alleged by the adverse party or not.^ ' This I Tinderstand to be the common practice, and the result of the cases under the New Procedure. Butler vs. Edgerton, 15 Ind., 15; Mxon vs. Beard, 111 id., 137; Wheeler vs. Billings, 38 N. T., 263. (Evidence that the money was not agreed to be paid on the con- ditions alleged, but after performance of additional con- ditions as a consideration ; and that plaintiff has not performed them.) s. p., Hunting vs. Downer, 151 Mass. 275. (Implied ; the ruling being that defendant could not go further and show fraud.) " Carnwright vs. Gray, below cited. Patterson vs. Gile, 1 Colo., 200. According to Nelson vs. White, 61 ItuJ,., 139 ; Beeson vs. Howard, 44 id., 413 ; Bingham vs. Kimball, 17 id., 396; and Carnwright vs. Gray, 57 Hun (N. Z), 518, this rule applies to written promises to pay money, whether negotiable or not. ' Livingston vs. Tremper, 4 Johns. {N. Y.), 416. Evans vs. Williams, 60 Barb. (JV. T.), 348. ' Eichardson vs. Carpenter, 2 Sweeny, 360 ; rev'd on another ground in 46 JV. Y., 660. Whether, if objection to the pleading be not taken, evi- dence of want of consideration can be proved under a gen- eral denial is perhaps not settled. According to the gen- eral principle that a general denial lets in anything that controverts what plaintiff must prove, it does. Demands not alleged in a complaint may be proved, for the purpose of showing the extinguishment of other de- mands proved by defendant, to countervail the alleged consideration of the note sued on. Peck vs. Winne, 51 N. Y., 641. (No opinion reported.) 6 Fisher vs. Fisher, 113 Ind., 474; s. c, 15 North East. Sep., 832; 13 West. Bep., 295. (On demurrer.) [If consideration was alleged, the denial raises the issue. If it was not alleged, plaintiff by going to trial on the specific denial treats it as sufficient. See Aideb.) § 819. — recimpment. — It is the better opinion tJiat a § 820.] Undek Particular Allegations ; Contracts. 675 general denial does not let in evidence in. recoupment of general damages.^ But if the facts relied on for recoup- ment are specially pleaded, the evidence is admissible for the purpose of establishing total want of consideration as a bar, and equally for that of recouping damages so as to reduce the recovery ; and this, irrespective of whether or not the answer states for what purpose the facts are pleaded.^ ' Bolt vs. Friederick, 56 Mich., 20. (Wages.) Wentwortli vs. Dows, 117 Mass., 14. (Sale). Lamson, etc., Co. vs. Eiussell, 112 id., 387. (Assignment of patent.) Krom vs. Levy, 1 Hun {N. Y.), 171; s. c, 3 Supm. Ct. {T. & C), 704. [ Contra, perhaps, Scott vs. Kittatiuy Coal Co., 89 Pa. St. . 231. (Sale.) ' Springer vs. Dwyer, 50 N. Y., 19, rev'g 58 Barh., 189 ; Cliatfield vs. Simonson, 92 N. Y., 209, 217. Eecoupment is mere matter of defence, and is not ad- mitted by non-reply. Foutty vs. Poar ( W. Va., 1891), 12 Soutli East. Bep., 1096. § 820. Faihufe of consideration Fraud: Abandon- 3 fully stated under Defining the Issues. The rules here stated relate rather to the actual production of evidence.] § 861. Sworn denial not evidence for the pleader. — The affidavit or verified pleading furnished pursuant to the statute is not, as such, evidence for the party inter- posing the denial. § 864. J Under Particular Allegations; Documents. 705 Walter vs. Trustees of Schools, 12 lU., 63. City Bank vs. Foucher, 9 La. 0. 8., 405. (The affidavit of denial, though alleging forgery, will not be permitted to go to the Jury as evidence, when not made the basis of some preliminary or interlocutory proceeding.) § 862. Want of consideration. — Where the statute merely shifts the burden of proof as to execution, the omission to verify the denial does not preclude the de- fendant from impeaching the consideration of the in- strument, even though consideration appears on the face of the instrument.^ It may be otherwise where the statute makes the failure to verify the denial equivalent to an admission.* ' Stacker vs. Hewitt, 2 III. (1 Scam.), 207. Freeman vs. Ellison, 37 Mick, 459. In Prescott vs. Johnson, 8 Fla., 391, it was held that where a promissory note has been negotiated before due, under circumstances which, at common law, allow inquiry into its consideration, the same inquiry may be made under a sworn plea of failure of consideration, under the statute. ' Kelly vs. Mathews, 5 Ark, 223. Pierce vs. Wright, 33 Tex., 631. § 863. Signing as agent. — ^Under a statute requiring a sworn denial, an unsworn denial will not let in ex- trinsic evidence that defendant signed merely as agent, binding his principal and not himself, nor put the burden on plaintiff as to that fact. McWhorter vs. Lewis, 4 Ala., 198. § 864. Alterations. — Whether one who has not under oath denied a written instrument, can, under a statute requiring sworn denial, prove an alteration, see : Affirmative. — Mahaiwe Bank vs. Douglass, 31 Conn., 170 ;, Lake vs. Gruikshank, 31 Iowa, 395 ; Cape Ann Nat. Bank vs. Burns, 129 Mass., 596 ; Ames vs. Quimby, 106' U. S., 342 ; s. c, abstr., 26 Alb. L. J., 455 ; Henderson vs. 706 Abbott's Beief ok the Pleadings. Evidence [§ 865. "Wilson, 7 Miss. (6 How.), 65 ; Bigelow vs. Stilphen, 35 Vt, 521 ; Schwalm vs. Mclntyre, 17 Wise, 232 ; Low vs. Merrill, 1 Pin. {Wise), 340. In Ela vs. Sprague, 4. CJiand. ( Wise), 52 ; s. 0., reprinted in 3 Pin., 323, a denial (in a justice's court) as to exe- cution, qualified so as to be merely a denial of having signed the instrument "as it reads above," was held not a denial of execution. Negative. — Campbell vs. Larmore {Ala., 1889, 4 South. Hep., 593 ; Thackaray vs. Hanson, 1 Colo., 365 ; Tedlie vs. Dill, 2 Ga., 128; Dewey vs. Warriner, 71 Ml., 198; Lowman vs. Aubery, 72 Jll., 619 ; Woollen vs. Whitacre, 73 Ind., 198 ; Hemphill vs. Bank of Alabama, 14 Miss. \ (6 Smed. & M.), 44; Archer vs. Ward, 9 Oratt. {Va,), 622 (but with dissent byALLEN and Daniel, JJ.). [The better opinion is that if the statute can be construed as only relating to signature or execution, a defendant who by unsworn denial admits the signature may still rely on the ordinary rules of pleading and proof as to alterations in other parts of the instrument.] § 865. Omission as affecUng the issue : — dispensing with prodtcction. — Whether production of the instru- ment is necessary or not, compare : Affirmative. — Moore vs. Leseur, 18 Ala., 606. (Holding that if, when produced, it varies from that described in the declaration, defendant may move to reject it, or test its legal sufficiency by demurrer to the evidence.) New York, etc., E. E. Co. vs. Hunt, 39 Conn., 75. Potter vs. Earnest, 51 Ind., 384 ; Glenn vs. Porter, 49 id., 500 ; Fosdick vs. Starbuck; 4 Black/. {Ind.), 417. Able vs. Chandler, 12 Tex., 88 ; Matossy vs. Frosh, 9 id., 610._ Negative.— Henv J vs. Evans, 58 Iowa, 560. Williams vs. Norton, 3 Kans., 295 ; Gavlord vs. Stebbins, 4 id., 42 ; Eeed vs. Arnold, 10 id., 102. Lorscher vs. Supreme Lodge Knights of Honor, 72 Mich., 316; s. c, 2 Law B. Anno. 206 ; s. c, 40 North West., Eep., 545. See also § 849. § 866. — allowing evidence. — Where the statute makes the failure to comply equivalent to an admission/ it is § 867.] Under Particular Allegations; Documents. 707 not error to receive in evidence against objection an in- strument, the execution of which has been duly alleged/ and not denied in the manner prescribed by the statute.^ It is error to receive against objection evidence in support of the defective denial of the instrument.* ' For the statutes, see § 615, Defining the Issues. ' Plaintiff's disregard of a statute requiring filing (see § 852) precludes him from claiming that omission to deny under oath admits execution. Newton vs. Princi- paal {Mich., 1890), 46 North West. Rep., 234. ' Ferguson vs. Tutt, 8 Kans., 370. s. p., Benedict vs. Maynard, &. McLean, 21. County of Balls vs. Douglass, 105 U. S., 728. s. P., Gaddy vs. McCleave, 59 lU., 182. ■* Johnston vs. Winfield Town Co., 14 Kans., 390. Under the California statute which declares the effect of non-verification to be an admission of the " genuineness and due execution," the truth of the statements in it (except perhaps mere recitals), and that the parties executed it in the capacity in which they appear to have acted, is held admitted. Sloan vs. Digging, 49 Cal., 38. But the relevancy of the instrument to the case is not admitted, nor the fact that the transactions alleged in the pleading were had under the instrument alleged. Fox vs. Stockton Combined Harvester & Agri. Works, 73 Cal, 273 ; s. c, 15 Facif. Sep., 430. § 867. — admitting validity. — Where the statute relat- ing to denial of execution may be construed as referring to the facts of signature and delivery, rather than to validity of execution, omission to verify does not preclude the party from proving facts which are consistent with signature and delivery, but show the invalidity of the instrument, as for instance by reason of the incapacity of the signer as a bankrupt,^ or married woman,^ or by reason of fraud which induced the signature.* ■ Birch vs. Tillotson, 16 Ala., 387. ' Kenton Ins. Co. vs. McClellan, 43 Mich., 564. ' Nielson vs. Schuckman, 53 Wis., 638 ; s. 0., 11 North West. Bep., 44. iCompare § 868.] 708 Abboit's Beief on the Pleadings. Evidence [§ 868. I 868. — fraud indMcing execution. — If tlie execution of the instrument is effectually denied, defendant may show that its execution was induced by fraud on the part of plaintiff, or of those in privity with whom he stands, such as to render it absolutely void ab initio, at common law, even though the fraud is not specially pleaded.^ If the execution of the instrument is in effect admit- ted, although the admission be coupled with an allega- tion that its execution was fraudulently obtained, the in- strument may be read in evidence without proof.^ If the instrument is pleaded by defendant, as consti- tuting a defence, the statutory traverse which the Code makes for all new matter pleaded merely as a defence, enables plaintiff to prove fraud although he has not put in a sworn denial of execution.^ ' Corby vs. "Weddle, 57 Mo., 452. So also under the gen- eral issue {non assumpsit); Strong vs. Linington, 8 lU. App., 436. Otherwise perhaps of non est factum. IContra, under the Codes, see §§ 818-20, Contracts.] " State vs. Homey, 44 Wise, 615. (A surety in the bail bond sued on made affidavit that the bond was " misread and misexpounded " to him, and was not by him executed so as to become his bond. Held, proper to allow the bond to be read without proof of execution ; and to re- fuse defendant leave to amend " so as to deny under oath the execution of said bond, but not to deny that the name attached was his signature." Unless the signature is denied, plaintiff need not prove execution before offering instrument in evidence.) S. P., Scandinavian Coal, etc., Co. vs. Whittaker, 40 Kans., 123 ; s. c, 19 Pac. Rep., 330. [The contrary rule was applied in Coen vs. Funk, 18 /mc?., 345, where the objection was merely the antedating of notes without authority ; the Court saying that exe- cution of the notes, as declared on, was admitted.] In Arnold vs. Trundle, 7 J. J. Marsh. (Ky.), 115, it was held that a special plea of such fraud need not be verified. In Rothschild vs. Frensdorf, 21 Mo. App., 318, it was held that it must be, there being no sworn denial of execution. § 870.] Undee Paktioulak Allegation's; Documents. 709 ' Cox vs. N. W. Stage Co., 1 Idaho, 376. Nielsonm Schuckman, 53 Wise, 638 ; abst., s. c, 8 Weekly Cinn. Bui., 71. § 869. Statutes qfectmg burden of proof — effeet of imsv}orn denial. — Where the statute merely shifts the burden of proof, if defendant has not duly verified his denial, plaintiff need not prove execution as a preliminary to reading the document in evidence, but defendant may, in his turn, adduce evidence to disprove it. Sankey vs. Trump, 35 Iowa, 237 ; Terhune vs. Henry, 13 id., 99 ; Brayley vs. Hedges, 52 id., 623. Lockbridge vs. Nuckolls, 25 III., 178. Bates vs. Hinton, 4 Mo., 78. Palmer vs. Tarrington, 1 Ohio St., 253. (Holding that the statute precludes no proof, but merely dispenses with it, under certain conditions ; and overruhng Tay- lor vs. Colvin, Wright ( Ohio), 449.) § 870. — Effect of sworn denial. — Where the statute merely shifts the burden of proof, if defendant has duly verified his denial, plaintiff cannot put the instrument in evidence without common-law evidence of its execution ; ^ but common-law evidence is sufficient ; ^ and so is a due certificate of acknowledgment or proof under statutes authorizing that mode of "proving documents.* ' Miller vs. House, 63 Iowa, 82. Moore vs. Anderson, 11 Miss., 321. Lancashire Ins. Co. vs. Mil, 114 Pa. St., 248. (Error to allow it.) In Cawood's adm'r vs. Lee, 32 ItuI., 44, an administrator was held not to have waived proof of execution by suf- fering the instrument to be read in evidence without objection. Counsel's promise to give the evidence afterward does not entitle him as matter of right to read the document be- fore some proof its execution has been given. Woolen vs. Wire, 110 Ind., 251 ; s. c, 9 Western Sep., 82, 83. (Holding that this is matter of discretion.) 710 * Abbott's Bkibf on the Pleadings. Evidence ■[§ 871. " Snmpter vs. Geron, 5 Miss., 263. Houston & T. C. E. Co. vs. Chandler, 51 Tex., 416. (Eati- fication sufficient to supply lack of evidence of authoritj to sign.) Brooks vs. Allen, 62 Ind., 401. (Proof that defendant signed the note, and the fact that it is in plaintiff's pos- session, are prima facie evidence of its execution.) Secondary evidence is competent after laying the proper foundation. Griswold vs. Trustees Peoria University, 26 III, 41 ; Jenkins vs. Parkhill, 25 Ind., 473. In Yeary vs. Cummins, 28 Tex., 91, and Burleson vs. Burleson, 15 Tex., 423, the admission worked by the statute for want of a sworn denial was held to dispense with the necessity of the statutory acknowledgment and registration otherwise imperative for such instru- ments as those then in question. [The rule that common-law evidence is sufficient does not apply in Louisiana, where the statute prescribes the necessary kinds of evidence. Plicque vs. Labranche, 9 La. 0. 8., 559.] [In McDowell vs. Turney, 5 Sneed (Tenn.), 225, it was held that the common-law presumption that an officer has done his duty does not alone avail to let in a docu- ment in which the entry of the party's name was made by a public officer.] ' Wilkins vs. Moore, 20 Kan., 538. § 871. — preliminary proof . — A prima facie case of genuineness, thougli made by slight evidence, is enough to let the document be read in evidence.^ This proof is addressed to the judge ; but the party denying the execution is not entitled to give counter evidence on the question of admission^ (unless jDerhaps. by strict cross-examination of the adversary's witnesses) ; but his evidence in support of his denial must be offered as a part of his own case, after the reception of the document. ' " Where evidence addressed to the Court is adduced, making out a prima far., 621. ' See Andrews vs. Mina. Life Ins. Co., 92 N. T., 596, 601 ; s. c, 16 Weeldy Dig., 169 ; and cases in note to next section. § 879. — defendant's case. — Under the New Procedure, if defendant relies on an equitable estoppel as essential to enable him to defeat plaintiff's case, lie cannot prove tlie facts raising it unless lie has pleaded them ; and this rule applies whether the estoppel is claimed to conclude plaintiff from asserting his own case ^ or from denying defendant's new matter in avoidance.* Upon the same principle, if plaintiff relies on an equitable estoppel to defeat a counterclaim he must plead it.* In New York this rule is not yet settled.* [The reasons are that under the New Procedure, where defendant may be required to answer on oatl;, he can- not allege the fact, if the only matter he relies on is an estoppel against proving the fact to be excluded ; that § 880.] Under Particular Allegations; Estoppel. 715 if the fact to be excluded once existed as part of the cause of action, and the estoppel afterward arose, it is new matter, and no more admissible under a general denial than payment or a release ; and that in any case a mere denial of the fact sought to be concluded invites plaintiff to try the very issue which the claim of estop- pel precludes him from trying. In practice in New York the question usually comes up on submission of the cause, and it is a question of surprise and amend- ment. See note 4, below.] •Wood vs. Ostram, 29 Ind., 177. Johnson vs. Stellwagen, 67 Mich., 10, 14. Hanson vs. Chiatovich, 13 Nev., 395. Hugh vs. Ottenheimer, 6 Oreg., 231. Gill vs. Eice, 13 Wise, 613. " Clarke vs. Huber, 25 Oal, 593. Dale vs. Turner, 34 Mick, 405. , Bray vs. Marshall, 75 Mo., 327. Warder vs. Baldwin, 51 Wise, 450. ' Burlington, etc., E. Co. vs. Harris, 8 JVebr., 140. ' Compare to the effect that defendant need not plead an equitable estoppel, Prevot vs. Lawrence, 51 N. Y., 219; Eogers vs. King, 66 Barb. {N. Y.), 495; Creque vs. Sears, 17 Hun (N. Y.), 123 ; Contra, Dressier vs. Hard, 6 iV. T. Supp., 500 ; s. c, 25 JSf. Y. State Bep., 808. g 880. — plaintiff's avoidance of mere defence. — Un- der the New Procedure, where replications are disused, if plaintiff needs the aid of the estoppel not to establish his cause of action, but only to avoid new matter set up by defendant as constituting a defence, he may prove the facts which raise the estoppel, although he has not pleaded them. Dyer vs. Scalmanini, 69 Cal, 637; s. c, 11 Pacif. Bep., 829. Metrop. Life Ins. Co. vs. Meeker, 85 N. Y., 614. Gans vs. St. Paul Ins. Co., 43 Wise, 108. Contra, Hayes vs. Virginia Mut. Ins. Co., 76 Va., 225. § 881. Incidental fact not pleaded. — After evidence of an incidental fact not pleaded, has been adduced by 716 Abbott's Beief on the Pleadings. Evidence [§ 883. either party, tlie adverse party has a right, (subject, how- ever, to objection on the ground of surprise) to give evi- dence shovping that the other is equitably estopped from relying on the fact claimed. Common practice : following the general principle that equitable estoppel need not be specially pleaded unless either the fact sought to be excluded has been specially pleaded [see § 880], or the estoppel is essential to the foundation of the party's case. See cases under §§ 878, 879. FACTS OCCUEEING PENDING THE ACTION. [See also § 69, Demukbeb fob Insufficiency ; § 495, Supple- mental Pleadings ; § 450, Demubbeb to Answee ; and §1024, Objections to Gbounds abising Pending Suit; Action Peematuee.] § 882. Fact essential to the case. mental pleading not evidence 883». Exceptional actions. of right. 883. What is the time of commencing § 888. Amendment inserted in supple- action, mental pleading. 884. Fractions of a day. 889. Waiver of objection that origl- 885. Lapse of time or further griev- nal is sufficient alone. ance enlarging measure of re- 890. Mere evidence. covery. 891. Facts in avoidance of prima 886. Facts modifying or supporting a /acie defence. good cause of action. 893. Repetition of same grievance. 887. Leave to file amended or supple- 893. Amending. § 882. Fact essential to the case. — At Common Law,* and in actions of a legal nature under the New Proced- ure,^ a fact essential to the case of the party offering to prove it, but which is not pleaded, cannot be proved even though it occurred after commencement of the action. This rule applies to equitable defences in legal actions.^ [Whether it is properly to be stated in an original, an amended, or a supplemental pleading, see §§ 495--4:99, Demubeee to Supplemental Pleadings.] § 883.] Under Particular Allegation's; Facts. 717 ' Teaton vs. Lynn, 5 Pet. (U. 8.), 224, 231. Mount vs. Scholes, 120 III, 394. s. p., Andrews vs. Hooper, 13 Mass., 472. "Hardy vs. Jolinson, 1 Wall. {U, S.), 371. Campbell vs. Fulmer, 39 Kans., 409; s. c, 18 Pac. Pep., 493. Collins vs. Ballow, 72 Tex., 330; s. c, 10 South West. Pep., 248. Styles vs. Fuller, 101 N. Y., 622 ; s. c, 3 How. Pr. K 8., 464; Cheeseman vs. Sturges, 9 Bosiv. (If. F.), 246, 259 ; Hall vs. Olney, 65 Barb. {N. Y.), 27. ' Wisner vs. Ocumpaugh, 71 N. Y., 113. § 882\ Mcceptional actions. — Exceptions to the rule that facts occurring after the commencement of the action cannot avail, are to be found in actions of replevin,^ quo warranto,^ and mesne profits in ejectment.* • Wells on Eeplev., 275, § 496. ' People ex rel. Swinburne vs. Nolan, 101 N, T., 539. ' Whether it applies in Equity or Equitable actions, compare Blaisdell vs. Stevens, 16 Vt., 179 ; Peck vs. Groodber- lett, 109 N. Y., 180, 189; s. c, 15 JST. Y. 8tate Pep., 182. § 888. What is the time of commencing action. — Un- der the New Procedure, where the process is issued by- attorney, the suit is regarded as commenced at the time of the first service of the summons.^ In those Jurisdictions where the process is issued by the Court on the filing of the bill of complaint or petition, or upon formal application for the process, the filing of the pleading or the actual issue of the process is regarded as the commencement of the actionf but at Common Law, if it be shown that service was postponed until after de- mand and refusal, or other circumstance perfecting the cause of action, the action will not (for the purpose of ex- cluding evidence) be deemed to have been commenced until service.^ 'Foxell vs. Fletcher, 87 N. T, 476 ; s. c, 14 WeeUy Dig., 298. 718 Abbott's Beief on the Pleadings. Evidence [§ 884. McCuUougli vs. Colby, 4 Bosw. (N.Y.), 603. (So holding of service on one of several parties.) lOompare Haines vs. Haines, 24 N. Y. Weekly Dig., 267, allowing subsequent items in bill of particulars.] ' Sheridan vs. Cameron, 65 Mick, 680 ; s. c, 32 North West. Rep., 894. Badger vs. Phinney, 15 Mass., 359 ; s. c, 8 Am. Dec., 105; Grimes vs. Briggs, 110 Mass., 446. It may be otherwise for the purpose of the Statute of Limitations {N. Y. Code Civ. Pro., 399), or a provision- al remedy (§ 416). § 884. Fractions of a day. — The Common-Law rule that the law will not regard fractions of a day, does not apply to the issue of process when it is not a judicial act. Clarke vs. Bradlaugh (Eng. Ct. of App.), 80 Weekly Rep., 63, dismissing appeal from L. E. 7 Q. B. Div., 151; s. c, 29 Weekly Bep., 823. s. p., Warden vs. Etter, 143 Mass., 19 ; s. c, 7 East. Rep., 858. § 885. La/pse of time or further grievance enlarging measwre of recovery. — A fact which occurred after suit brought, if not necessary to make out the cause of action, may be proved by plaintiflE for the purpose of showing that by the lapse of time,^ or further persistence of defendant,^ the facts which are alleged in the original complaint en- title plaintiff to an enlarged measure of the same relief as there demanded, provided he has duly alleged such later fact in a supplemental complaint. ' Fincke vs. Eourke, 20 Rwn {N. Y), 264. (Subsequent instalments.) Sigler vs. Gondon, 68 Iowa, 441 ; s. 0., 27 North West. Rep., 372 {Contra, Bull vs. Kothschild, 16 Civ. Pro. R. (N. Y.), 356 ; s. c, 4 N. Y. 8upp., 826; 22 State^ Bep., 536. (Denying leave to file supplemental complaint.)] ' Jenkins vs. Leubscher, 6 Weeldy Dig. (N Y.), 418. (Levy before suit commenced, and sale afterwards.) § 888.] Under Particular Allegatioks; Facts. 719 § 886. Facts modifying or sv/pporting a good cause of action. — The plaintiff may, for the purpose of modifying or supporting his cause of action, prove facts material to the case originally presented, although they occurred af- ter suit bought, provided he has duly pleaded them in a supplemental complaint. For instance, see Hobson vs. McArthur, 16 Pet., 182 (agree- ment made after suit brouglit); Hasbrouck vs. Shuster, 4 Barb. {N'. Y.), 285 (same); Buckley vs. Buckley, 12 Nev., 423 (repleAdn for sheep : increase of the flock, and en- hanced value of wool). § 887. Lea/oe to file a/mended or supplemental pleading not evidence of right. — The order of Court giving one who claims to be a successor in interest to the original plaintiff leave to file a supplemental complaint for the purpose of prosecuting the action, is not an adjudication of his right to maintain the action. Bobbins vs. Wells, 18 All. Pr. (N. Y.), 191; s. c, 26 Sow. Pr., 15. Compare Brief on the Facts, § 175, p. 62. [Compare Badlam vs. Springsteen, 41 Hun (iv. Y.), 160. (Holding an order refusing to strike out, conclusive at the trial. Unsound ; see §§ 759, etc.] § 888. Amendment inserted in supplemental pleading. — The objection that a supplemental pleading ought not to set forth facts which arose before the commencement of the action, if not taken by demurrer or answer, is not available at the trial to exclude evidence offered under the supplemental pleading. Fulton Bank vs. N. T. & Sharon Coal Co., 4 Paige {N. Y.), 127. Cincinnati vs. Cameron, 33 Ohio St., 336. State vs. Finn, 45 Iowa, 148. 780 Abbott's Brims on the Pleadings. Evidence [§ 889. Lowry vs. Harris, 12 Minn., 255. And see Wetmore vs. Truslow, 51 N. T., 338. § 889. Waiver of objection that original is insufficient alone. — If a supplemental complaint alleges a fact which occurred after the suit was brought, and which is essential to make out the cause of action attempted to be set up in the original complaint ; and the defendant does not, either by opposing the leave to file such a complaint or by demurring, object that the cause of action had not accrued when the suit was commenced, but answers the supplemental complaint and goes to trial on the mer- its, he waives the objection, and cannot first raise it at the trial. Lowry vs. Harris, 12 Minn., 255, 267. s. p.. Green vs. Dunn, 5 Kans., 254. s. p., Pinch vs. Anthony, 10 AUen {Mass.), 470. § 890. Me7'e evidence. — The rule that facts occurring after suit brought, and not alleged by supplemental pleading, cannot be proved, does not exclude facts which do not constitute part of the cause of action or defence, but are merely evidence ; even though relied on as the proof of a fact essential to constitute the cause of action or defence.^ This rule allows admitting evidence of a judgment or order of Court entered pending the cause, and amending a record or reforming an instrument involved in the cause.^ ' Eodman vs. City of Buffalo, 15 N. Y. State Bep., 585. (Ratification after suit brought, of previous act.) Spratt vs. Price, 18 Fla., 289. (Deed having relation back.) s. p., Jackson vs. Ramsay, 3 Goto. {N. Y.), 75. Schiffer vs. Adams, 13 Colo., 572 ; s. c, 22 Pac. Bep., 964 (Deed after suit, to fulfil contract made before suit.) ' Concordia Savings & Aid Ass. vs. Read, 14 N. Y. State Bep., 8. (Adjudication before suit, and judgment-roll entered aft«r suit.) 893.] Under Particulab Allegations; Tacts. 721 Peck vs. Yandemarlr, 99 K Y., 29, 35 (and .note in 18 Ahb. N. G. (N. Y.), 158, aff'g 33 Hun (N. Y.), 214. (Measure of recoTery not ascertainable till afterwards.) Olute us. Knies, 102 N. Y, 377. (Amendment of under- taking. So of authentication, during the suit, of instrument pre- viously executed. Abb. Tr. Ev., 6, 505, 427. For an extended discussion of the power of the Court to make such amendments, see Boody vs. Watson, 64 N. H., 162 ; s. c, 4 New Engl. Eep., 553. § 891. Facts in avoidance of prima-facie defence. — A fact which occurred after suit brought, if not essential to make out the alleged cause of action, plaintiff may- prove without having pleaded, whenever it is necessary in avoidance of new matter not constituting a counter- claim of which defendant has given evidence. Decker vs. Kitchen, 33 Hun (N. Y.), 268. (New promise to defeat discharge.) Butler vs. Jarvis, 51 Hun {N. Y.), 248 ; s. c, 21 N. Y. State Hep., 278 ; 4: N. Y. Supp., 137. (Discontinuance of another proceeding.) Mansfield vs. N. Y. Central, etc., 102 JST. Y, 205, 215. (Judgment as res judicata.) Bank of Chicago, 127 U. S., 484 ; s. 0., 32 Law. ed., 189. (Recovery for same cause.) § 892. Repetition of same grievance. — In an action, the gist of which is a trespass, or a nuisance which is not in itself continuous like the existence of a wrongful struc- ture, but the continuance of which consists in the repeti- tion of similar but independent acts on the part of defend- ant, such as the repeated fouling of a stream, — plaintiff cannot, for the purpose of making out his cause of action, show such continuance after suit brought, nor the com- mission, after suit brought, of acts alleged in the com- plaint to have been threatened,^ unless he has alleged them in a supplemental complaint,^ 722 Abbott's Brief on the Pleadings. Evidence [§ 893. ' Waterman vs. Buck, 58 Vt., 519 ; s. c, 3 Atl. Bep., 505 ; s. c, 5 Eastern Rep., 214:. [Compare Meyer vs. Phillips, 97 iV. Y., 485, 491. J ' Third Ave. E. E. Co. vs. N. Y. Elevated E. E. Co., 19 Ahh. N. a {N. Y.), 261. ' But compare Uline vs. N. T. Central, etc., E. E. Co., 101 N. Y., 98 ; s. c, 4 North East. Rep., 536, and Adams vs. Chicago, B. & N. E. Co., 39 Minn., 286 ; s. c, 1 Law. Bep. Ann., 493, 496. And see Damages. § 893. Amending. — At Common Law, facts consti- tuting a defence arising after suit brought might be set up by plea puis da/rrein continuance, if promptly interposed, and this was matter of right even at the trial.^ Under the Codes of Procedure this practice is su- perseded ; and facts arising after suit cannot be let in by amendment at the trial, but the remedy is to seek post- ponement and leave to plead. Leave is not to be granted at the trial.^ ' Field vs. Goodman, 3 Wend. {N. Z), 310. Sandford vs. Sinclair, 3 Den. {N. Y.\ 269. Garner vs. Hannah, 6 Duer (N. Y), 262, 275. (The Code, prescribes a motion as the uniform method of obtaining leave to plead after time passed.) ' Otherwise sometimes if they have been proved without objection. Fifth Nat. Bk. vs. N. Y. Elevated E. Co., 28 Fed. Bep., 231. FOEEIGN LAW. [See also Statutes.] § 894. Whether pleading the conclusion drawn from foreign law, instead of distinctly alleging the existence of the law as a general rule, — for instance, saying that by the law of, etc., it was defendant's duty to, etc., instead of saying that by such law it was the duty of all persons, etc. — suffices to let in evidence : — Compare cases cited under §§ 259, 260, and Eoots vs. Merriwether, 8 Bush {Ky.), 397; Templeton vs. Sharj» {Ky., 1888), 9 South West. Bep., 696; Van Vrar^keu vs. §895.] Undee Paeticulae Allegations; Foembe Kbcotbet. 733 City of Schenectady, 31 Hun {N. Y.), 516 ; Beman vs. Tugnot, 5 Sandf. {N. Y.), 153; Graves vs. Cameron, 9 Daly (JV. Y.), 152 ; Eobarge vs. Central Vt. E. E. Co., 18 Abb.N. G. {N. Z".), 363. As to judicial notice of sister State statutes, see cases cited under § 260, and Atchison, T. & S. F. E. Co. vs. Betts, 10 Colo., 431; s. c, 15 Pac, 821 ; Flanigen vs. "Washington Ins. Co., 7 Fa. St., 306 ; State of Ohio vs. Hinchman, 27 id., 479; Paine vs. Schenectady Ins. Co., 11 B. I., 411 ; Hobbs vs. Memphis, etc., E. Co., 9 Heisk. ( Tenn.), 873 ; Butcher vs. Bank of Brownsville, 2 Kans., 70 ; Dodge vs. Coffin, 15 id., 277 ; Morse vs. Hewett, 28 Mich., 481. POEMEE EECOVEEY. [See also Estoppel.] § 895. Necessity of pleading. — At Common Law a for- mer recovery duly authenticated is admissible in evidence under the general issue, as a bar.^ Under the New Pro- cedure it is new matter not admissible as a bar unless specially pleaded.^ It is not enough that it appears by the complaint.^ 'Mason vs. Eldred, 6 WaE. {U. S.), 231, 234. Whiting vs. Burger, 78 Me., 287 ; s. c, 4 Atl. R&p., 694, 696. Marsh vs. Pier, 4 RavM {Pa.), 273, 288. Gilchrist vs. Bale, 8 Watts. (Pa.), 355. (Holding it ad- missible in an action on the case ; but dictum that it is otherwise in actions of tort generally. The reason for the distinction is that an action on the case is regarded as of an equitable nature.) Jones ««. Ellison, 10 W. N. C. (Pa.), 205; s. o., 12 He- porter, 378. Whitney vs. Clarendon, 18 Vt, 252. Jones vs. Lavender, 55 Ga., 228. [Otherwise of a recovery against a co-trespasser. 2 Chitt. on PI, 16 Am. ed., 654.] ' Hendricks vs. Decker, 35 Barb. {JST. Y.), 298 Norris vs. Amos, 15 Ind., 365. If there is no opportunity to plead it, it may be proved. Flandreau vs. Downey, 23 Gal., 354, 358 ; Clink vs. Thurston, 47 id., 21, 29. It may be pleaded in an equitable action. San Francisco vs. S. V. W. W., 39 id., 473, 482. 724 Abbott's Bkies on the Pleadings. Evidence [§ 896. It is tlie better opinion that even tlien it is sometimes a support to the action, and not a bar. See Jenkins vs. International B'k, 127 U. S., 484. 'Henderson vs. Scott, 32 Hun, 413; s. c, 6 Civ. Fro. {N. YX 39; s. p., Brazill vs. Isham, 12 N. Y., 9, aff'g 1 R D. Smith, 437. FEAUD. [See also Conspieacy ; Contbact ; and Intent. For sufficiency on demurrer, see Demueeee, § 262, etc.] §896. General allegation. etc., distinguished from fraud 897. Priucipal and agent. in inducing agreement. 898. Intent essential. § 905. Fraud does not let in rescis- 899. Time. sion, etc. 900. Knowledge of falsity. 906. Denial of allegation of good 901. The word "fraud" not necessary. faith. 902. Evidence not to be pleaded. 907. Denial of concealment. 903. Oral evidence to defeat writ- 908. PlaintlEE in pari delicto. ten. 909. Fraud to rebut defence. 904. Fraud in inducing signature, § 896. General allegation, not sufficient for the pleader. — A mere general allegation of fraud will not let in evidence of tte facts constituting fraud, but the facts themselves must be alleged.^ And v^here the facts are alleged, adding a general allegation such as " other false and fraudulent representa- tions," does not let in evidence of such others.^ ' Hale vs. "Walker, 31 loiva, 344. s. p.. State vs. Williams, 39 Kans., 517. Green vs. Hayes, 70 Cal., 276 ; s. c, 11 Pac. Eep., 716. Southall vs. Farish, 85 Va., 403 ; s. c, 1 Law. B. Anno., 641 ; s. c, 7 South East. Rep., 634. Coulson vs. Whiting, 14 Alh. N. G. {N. Y.), 60 ; s. c, 12 Daly (N. Y), 408. Contra, Goodsell vs. Trumbull, 135 Mass., 99. " Eeed vs. Clark Cove Guano Co., 47 Hun, 411 ; s. c, 14 m Y. State Bep., 560. § 897. Principal amd agent. — Fraudulent representa- tions made by an agent are admissible under an allegation that they were made by the principal.^ But an agent of § 900. J Under Particular Allegatioks ; Fraud. 735 a corporation is not an agent of the officers or stockholders within the meaning of this rule.^ ■ King vs. Fitch, 2 Aib. Ct. App. Dec. (iV^. Z), 508 ; s. c, 1 Keyes (jV. Y.), 432. » Arthur vs. Griswold, 55 iV. Y., 400. § 898. Intent essential. — An allegation of fraud or deceit is not sufficient to let in evidence against objection if it does not state an intent to deceive. Star Steamship Co. vs. Mitchell, 1 Abi. Pr. {N. 8., N. Y.), 396. § 899. Time. — Allegations of fraudulent representa- tions inducing sale, if they are general as to time, let in such representations made to induce credit in earlier pur- chases forming part of the same continuous course of deal- ing, and other such representations showing bad faith. [For other authorities, see Brief on the Facts, " Fraud."] Coffin vs. HoUister, 31 Hun, (JV. Y.), 81 [citing King vs. Fitch, 2 Ahb. Ct. App. Dec. {K T.), 508 ; s. c, 1 Keyes, {]V. Y.), 432]. Bissel vs. Eussell, 23 Hun (N. Y.), 659. (Allegation as to " Oct. 1875 and prior thereto," evidence as to 1873.) Thomas vs. Beebe, 25 N. Y., 244. (Eepresentations after delivery of deed admissible to characterize those made before it.) § 900. Knowledge of falsity. — An allegation that de- fendant knowingly made a false representation does not let in evidence that he made false representations without knowledge. Pearson vs. Howe, 1 Allen {Mass.), 207. Marshall vs. Fowler, 7 Hun {N. Y.), 237. Derry vs. Peek, H. L. {E.) L. R. 14 App. Cos., 387, rev'g Peek vs. Derry, 36 Weeldy Bep., 899 ; s. c, Law Bep., 37; Ch. Div., 541. 726 Abbott's Brief on the Pleadings. Evidence [§ 901. § 901. The word '■'■fraud'''' not necessa/ry. — An allega- tion of facts constituting fraud, lets in evidence of tbem, although it omits to charge fraud in general terms. Hicks vs. Stevens, 121 III., 186. (Action to rescind con- tract to purchase patent right for fraudulent represen- tations.) Sharp vs. Mayor, etc., of New York, 40 Barh. (N. Y.), 256, Whittlesey vs. Delaney, 73 N. Y., 571. § 902. Evidence not to he pleaded. — The rule that the facts constituting fraud must be alleged, does not re- quire a detail of circumstances. It is enough if the mis- representation, the defendant's knowledge, and the plain- tiff's ignorance and reliance, are alleged in an issuable form. If more be alleged, a variance in the circumstances is amendable. Place vs. Minster, 65 K Y, 89, 99. Opinion by Profes- sor Dwight, Com'r, at p. 99 {Equity), and 102 {Com- mon Law). Cummings vs. Thompson, 18 Minn., 246. Canton vs. McGraw, 67 Md., 583 ; s. c, 16 Washington Law Rep., 4. § 903. Oral evidence to defeat written. — The rule that oral evidence is not admissible to vary a writing does not exclude evidence of fi-aud in procuring its execution, if the fraud has been duly pleaded. Mayer vs. Dean, 115 N. Y., 556; s. c, 26 N. Y. State Hep., 375. Amer vs. Hightower, 70 C(d., 440. § 904. Fraud in inducing signature, etc., distinguished from fraud in inducing agreement. — An allegation of § 908. J Undee Particular Allegations ; Fraud. 727 fraud in reducing a contract to writing does not let in evidence of fraud in inducing the original oral agreement. Brainerd vs. Arnold, 27 Conn., 617, 626. § 905. Fravd does not let in rescission, etc. — An an- swer merely alleging fraud in inducing the making of a contract does not let in evidence that the party has re- scinded the contract on account of the fraud. Fogg vs. Griffin, 84 Mass. (2 Allen.), 1. s. p., McLeod vs. Maloney, 3 N. Y. Supp., 617; s. c, 20 N. Y. State Rep., 468. § 906. Denial of allegation of good faith. — Where the adverse party has pleaded affirmatively good faith, or facts showing the validity of the act to be impeached, a denial is sufficient to let in evidence of fraud showing the contrary. Wager vs. Ide, 14 Barb. (N. Y.), 468. § 907. Denial of concealment. — "Where the gist of the charge is fraudulent concealment, a general denial lets in evidence that the fact was communicated by de- fendant to plaintiff. Howell vs. Biddlecum, 62 Barb. (N. Y.), 131. § 908. Plaintiff in pari delicto. — The fact that plain- tiff was in pari delicto with defendant in a fraud com- mitted by defendant in an act on which plaintiff relies, is not ground of defence unless pleaded by defendant. Welfley vs. Shenandoah Iron, Lumber, Min. & Mfg. Co., 83 Va., 768 ; s. c, 3 Bouth East. Rep., 376. , 1128 Abbott's Bkibs on the Pleadings. Evidence [§ 909. § 909. Fraud to rehut defence. — Under the New Pro- cedure, replications to new matter not constituting a counterclaim being abolislied, plaintiff may, without having pleaded it, prove fraud for the purpose of avoid- ing any such new matter which defendant has proved. Argall vs. Jacobs, 87 N. Y., Ill ; s. c, 13 WeeEy Dig., {N. Y.), 409. (Fraud in debt ; to avoid bankruptcy dis- charge.) Jones vs. Jones, 41 Hun {N. T.), 163. (Fraud on creditors, in alleged gift set up as a defence.) Leslie vs. Keepers, 68 Wise, 123; s. c, 31 North West. 486. (Fraud in written settlement.) Contra in Equity, Very vs. Levy, 18 How. (Z7. S.), 345. HEIE. [See also Title.] § 910. Sufficient allegation to admit evidence. — An al- legation that on the death of one person the title de- scended to another as sole heir at law, lets in evidence that the latter was such heir. St. John vs. Northrup, 23 Barl. {N. Y.), 25. (The Court saying that less strictness is required at the trial than on demurrer.) s. P., "Wainman vs. Thompson, 20 N. Y. Weekly Dig., 68. Compare § 266, Demurrer for insufficiency — Twir. ILLEGALITY. [See also Oontbact.] . § 911. Illegality on face of instrument. § 913. Variance as to nature of illegality. 913. Evidence of illegality under a 914. Illegality of counterclaim, denial. §911. Illegality on face of inst/rument. — The instru- ment sued upon is not admissible in evidence against a denial, if illegal upon its face,^ unless evidence removing the objection is promised. ■ Handy vs. St. Paul Globe Pub. Co., 41 Minn., 188. § 913.] Under Pakticular Alleoations ; Illegality. TZ9 § 912. Evidence of illegality under a denial. — ^At Com- mon Law the illegality of the contract sued on may be shown under a general denial.^ Under the New Procedure, a denial of the contract does not let in evidence of illegality not forming a part of the contract or entering into its terras.^ But this rule does not preclude defendant from- showing under such denial what the true contract was, merely because such evidence may show that the contract is illegal,^ ' Craig vs. Missouri, 4 Pet. {U. S.), 410, 426. See also Os- canyan va. Arms Co., 103 U. 8., 261, 266. Hill vs. Callaghan, 31 Mich., 424. The Common Law rule is, that if a contract or obligation under seal is void ah initio, the general plea of 7ion est factum is proper. Where it is merely voidable, a special plea of the cir- cumstances is necessary. Bottomley vs. United States, 1 Story, 185. * Sharon vs. Sharon, 68 Cal., 29. Stannard vs. McCarty, 1 Morr. (Iowa), 124; s. P., Glidden vs. Higbee, 31 Iowa, 379. Kunz vs. Grund, 12 Kans., 647. Granger vs. Usley, 2 Gray {Mass.), 521. Hulet vs. Stratton, 5 Gush. {Mass.), 539, Boswell vs. Welshoefer, 9 Daly {N. Y.), 196 ; May vs. Burras, 13 Abh. N. C. {N. Y.), 384. See also Honegger vs. Wettstein, 94 N. Y., 252; s. c, 13 Abb. N. C., 393 ; Schreyer vs. Mayor, etc., of N. Y., 39 N. Y. Super. Gt. {J. & S.), 1 ; Gilbert vs. Sage, 5 Lans. {N. Y.), 287. " That rule has been applied in numerous cases where the alleged illegality consisted in the violation of a statute. Defence of usury (Mechanics' Bank of Williamsburg vs. Foster, 44 Barb. {JV. Y.), 87; s. c, 19 Abb. Pr. {JSf. Y.),. 47; 29 How. Pr. {K Y.), 408 ; wager policy (Valton vs. National Fund Life Ass. Co., 20 N. Y., 32; Goodwin vs. Mass. M. Life Ins. Co., 73 N. Y, 480, 496); violation of statute requiring that the designation " & Co." shall represent an actual partner (O'Toole vs. Garvin, 1 Hun {N. 7.), 92; s. c.,3iV. Y, Supm. Gt. {T. & G.), 118); gam- ing contract (May vs. Burras, 13 Abb. N. G. {JV. Y), 384) ; violation of revenue law. (Honegger vs. Wett- stein, 94 N. Y, 252; s. c, 13 Abb. K G. 393.)" Per James, C. Smith, P. J., in Hopkins vs. Ensign, 11 N. Y. State Rep., 85. 73j Abbott's Bbief on the Pleadings. JEvidence [§ 913, [Contra, as to judgment, Kinsey vs. Ford, 38 Barb. {N. Z), 195. ' See § 669. ' See Milbank vs. Jones, 25 JV^ Z xStoie ^ep., 868 ; s. c, 5 JV. Y. Supp. 914, and cos. cit. In applying the rule that it must be pleaded, some aid may be had by inquiring specifically what has the com- plaint alleged. If, for instance, the allegation of the complaint in form is only defendant " conveyed " specil fied premises, and a deed is put in evidence, a denia- may well be held to admit extrinsic evidence of facts avoiding the deed, because they show that plaintiff's al- legation that he conveyed is untrue. If the allegation is that defendant executed and delivered the deed set- ting it forth, a denial may well be held to put in issue only the giving of the instrument, and facts impeaching it would not be admissible unless pleaded. § 913, Variance as to nature of illegality. — A de- fence that a contract is illegal for one reason, is not sus- tained by proof of another reason for the like illegality. Bice vs. Enwright, 119 Mass., 187. (Allegation by de- fendant sued for rent that plaintiff knowingly let the premises for unlawful sale of liquors, does not let in evidence that after a letting without such knowledge he permitted the premises to be so used.) s. p., Dingledein vs. Third Ave. E. E. Co., 9 Bosio., 79. [Eev'd on other points in 37 M. Y., 575.] § 914. Illegality of counterclaim. — Under the New Procedure, which tests counterclaims by the rules appli- cable to complaints, if defendant's answer, pleading a counterclaim arising out of the transaction sued on by plaintiff, shows that it was illegal, and that defendant's intent was illegal, defendant cannot recover on his counterclaim, even though plaintiff had no illegal intent. Higgins ■!;s. McCrea, 116 U. 8., 671, 685. (Here Woods, J., said : " The cross action ... of the defendant, stated in his pleading and supported by his own deposi- tion, was not one on which any recovery could be had. [Citing Armstrong vs. Toler, 11 Wheat. {U. S.), 258; Brown vs. Tarkington, 3 Wall. {U. S.), 377; Davidson § 916.] Under Particular Allegations ; Indebtedness. 731 vs. Lanier, 4 Wall. (Z7. S.), 447; Hanauer vs. Doane, 12 Wall ([/". ;S'.), 342.] The Court was bound to take judi- cial notice of the fact that the dealings recited in the counterclaim were forbidden by law, and of its own motion should have directed a verdict against the de- fendant thereon. rCiting Oscanyan vs. Arms Company, 103 U. S., 261.]") ^ ^ ' INDEBTEDNESS. § 915. "Indebted''^ a mere conclusion. — An allegation that a person is or was indebted, without stating facts showing indebtedness, is a mere conclusion, when made as the ground of establishing a liability or set-oft', and is not enough to let in evidence against objection ; * unless the defect has been waived or aided by taking issue.^ If the facts constituting liability are alleged, a denial of indebtedness without denying such facts is equally in- sufficient.* ' California State Tel. Co. vs. Patterson, 1 Nev., 150. Holgate vs. Broome, 8 Minn., 243. [In some jurisdictions the general allegation is still deemed sufficient where it would be at common law.] ' If plaintiff, instead of alleging facts constituting indebted- ness, merely alleges that defendant became indebted by promising, etc., a general denial lets in evidence that there was no consideration for the promise ; also that it was void by the statute of frauds, etc. Weinhauer vs. Morrison, 49 Hun, 498 ; s. c, 18 N. Y. State Bep., 80. 'McKyring vs. Bull, 16 N. T., 297. INFANT. § 916. General answer. — The general answer on be- half of an infant, submitting its rights to the Court, does not let in evidence of a counterclaim. Mullenbrick vs. Pooler, 4 N. Y. State Bep., 127. (Holding it error to allow the recovery.) 'J'32 Abbott's Brief on the PLEADiifrGS. Evidence [§ 917. INSANITY. § 917. An allegation that a person "was of unsound mind and wholly incapable of," etc., "and did not," etc., lets in evidence of mental incapacity and insane delu- sions.^ An allegation that he was in feeble health and dis- tress of mind, does not.^ ' Byrd vs. Nunn, 25 Weekly Eep. {Engl.), 749. And see Wickwire's Appeal, 30 Conn., 86. s. p., Am. Bible See. vs. Price, 115 III, 623. ("Unsound mind and memory" lets in testator's insane delusions.) [For other cases see citations under § 274, Demurrer to allegation of insanity.'] ' Suffern vs. Smith, 14 N. Y. WeeEy Dig., 412. INTEEEST. § 918. Laches as ha/rring interest. — The fact that plaintiff has been guilty of laches in unreasonably delay- ing prosecution of the suit, after its commencement, may be proved, though not alleged, for the purpose of defeat- ing his claim to interest on the demand sued for, during such delay. Bartells vs. Eedfield, 27 Fed. Rep., 286, citing Eedfieldus. Ystalyfera Iron Co., 110 U. S., 174. (Error to allow interest where there was a lapse of twenty-six years.) JUDGMENT. [See also " Duly ;" Estoppel ; Foemee Ee- covEKY ; and Jdeisdiction. For mode of pleading, see §§ 277, etc., Demueeee.] § 919. Denial. — A denial of a Judgment or other record does not let in evidence impeaching the validity of a record which existed as alleged.* Otherwise if the facts relied on as giving validity are § 920.] Under Particular Allegatioks; Jurisdiction. 733 alleged in the complaint, — either at length or by the statutory short form, — and are denied.^ ' Hill vs. Mendenhall, 21 Wall. {U. S.), 453. (Holding evi- dence to contradict jurisdictional recitals was inadmis- sible unless specially pleaded, and declaring the rule to be the same under the Code as at Common Law.) Union Pacific Eailway Co. vs. McCarty, 8 Kan., 125. Brown vs. Balde, 3 Lans. {N. Y.), 283. [Contra, Kinsey vs. Ford, 38 Barb. {JV. Y.), 195. Carpenter vs. Goodwin, 4 Daly, {N. Y), 89. (Holding tjiat a vacatur for irregularity is no part of the judgment- roll, but merely matter in avoidance, and therefore must be pleaded.) It is otherwise of a judgment or order not pleaded, but used only as evidence, to support an allegation as to • title or right of possession. Briggs vs. Bowen, 60 iV. Y., 454. (Order of highway commissioners, offered to establish allegation that locus in quo was a public high- way.) It may be otherwise, also, of a judgment or order not bearing on its face sufficient evidence of, or ground for presuming, jurisdiction. Eor in such case reversal for want of jurisdiction would be competent, as tending to disprove plaintiff 's necessary evidence to show jurisdic- tion. ' See Jurisdiction, §§ 920-3. Trial by inspection. Basset vs. United States, 9 Wall. ( U. S.), 38. JUEISDICTION. [See also Judgment.] § 920. Statutory allegation as to former § 933. — In United States Courts. judgment, etc. 933. — Evidence of lack of citizen- 931. "Want of jurisdiction of the sub- ship, ject. § 920. Statutory allegation as to formsr judgment, etc. — The statutory short form of alleging that a judgment or other determination, etc., was duly given or made lets in evidence of the jurisdictional facts whether the Court be one of the same or of a sister State.' If un denied, jurisdiction is admitted.^ 734 Abbott's Brief on the Pleadings. Eviebkcb [§ 931. A denial of sucli allegation lets in evidence of want of jurisdiction.^ ' See §§ 277-286, Demuebeb. As to the rule in those juris- dictions where there is no such statute, see §§ 255, 872. ' Lazarus vs. Freidheim, 51 Ark, 371; s. c, 11 South West Sep., 518. Eobertson vs. Perkins, 129 U. S., 233; s. C, 32 Zmo. ed., 686 ; 9 Supm. Ct, 279. ' Eoys vs. Lull, 9 Wise, 324. § 921. Wa7it of jwrisdiction of the subject. — If juris- diction of the subject of the action appears from the alle- gations of the complaint, or may be presumed, a defend- ant who has no6 pleaded the want of jurisdiction can- not introduce evidence for the purpose of showing that the Court has not the Jurisdiction so alleged or presumed.' ' Bradt vs. Kirkpatrick, 7 Paige {N. Y.), 62. (Value of matter in controversy.) s. P., Church vs. Ide, Clarke {N. Y.), 494. ' But evidence otherwise properly received will support the objection. Eobinson vs. Oceanic Steam Nav. Co., 112 N. Y, 315. §922. — In United States Courts. — In the United States Courts, if the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated, plaintiff may give evidence at the trial for the purpose of showing that the value of tha subject-matter exceeds the sum iixed as the minimum limit of jurisdiction, although the pleading contain no allegations to that effect. Beard vs. Federy, 3 Wall. (U. 8.), 478; s. c, 18 Law. ed., 88. (Ejectment. Judgment affirmed on appeal where the evidence showed a sufficient value, although all allega- tions as to value had been stricken out at the trial.) Crawford vs: Burnham, 4 Jm, L. J. Eep., {U.S.), 228. (Ejectment. Hdd, that it is the practice to receive evi- dence offered at the trial under the general issue, to show § 924.J Under Pakticulak Allegation's ; Leave to Sue. 735 the value within jurisdictional limit. The evidence here being insufficient, the suit was dismissed.) Exp. Bradstreet, 7 Fet. {U. 8.), 634. (United States Practice Act 1889, requiring the Circuit Court to dis- miss or remand if it shall appear at any time that it has not jurisdiction of the suit.) \^A fortori, in a Court of general jurisdiction the lack of the allegation could be no ground for excluding the evidence.] § 923. — JEvidence of lack of citizenship. — If, in a cause in the Federal Court dependent on citizenship for jurisdiction, the pleadings do not raise the issue of citizen- ship, evidence to disprove it is not admissible as matter of right.^ ' Draper vs. Springport, 15 Fed. Bep., 328; s. C, 15 Reporter, 677. But under the statute the Court may give opportunity to try the question. Bae vs. Grand Trunk Ey. Co., 14 Fed. Rep., 401. Imperial Refining Co. vs. Wyman, 38 id., 574. {Compare Sharon vs. Hill, 26 Fed. Rep., 722; s. c, 10 Sawy., ^666. (Holding a decision against the objection when raised by plea in abatement, conclusive on the trial of the merits.)] LEAVE TO SUE. § 924. Omission to ohtain or allege. — It is the better opinion that where a statute forbids actions of a specified class to be brought without leave of Court or other such preliminary, plaintiff is not entitled to prove leave ob- tained, unless it has been alleged.* And that where the requirement rests in the practice of the Court, the objec- tion is waived if not raised by special motion before the trial or by the answer.^ The cases are conflicting. They do not explain the dis- tinction ; but I believe that this distinction usually governs in practice, and explains most of the apparent conflict between well-considered cases. See : 736 Abbott's Brihf oit the Pleadings. Evidekcb [§ 925. Scofield vs. Doscter, 72 J\r. Y., 491, aflTg 10 Hun, 582; Mc- Kernan vs. Eobinson, 84 N. Y., 105; s. c, 11 iVeekly Dig., 47, aff'g 23 Hun, 289 ; Krower vs. Reynolds, 19 N. Y. Weekly Dig., 383 (rev'd on another ground in 99 N. Y., 245); Brush vs. Hoar, 14 Civ. Pro. B., 297; s. c, 15 JV. Y. State Rep., 859; N. Y. Ass. of Game, etc., vs. Dur- ham, 51 N. Y. Super. Ct. {J. & S.), 306; Hauselt vs. Fine, 18 Aii. N. a {N. Y.), 142; Elkhart Car Works Co. vs. El- lis, 113 Ind., 215; Crook Co. vs. Bushnell, 15 Oreg., 169; S.C., 13 Pacif. Rep., 886; Waterman t's. Dockray, 78 Me., 139 ; Leuthold vs. Young, 32 Minn., 122; Town of Eox- bury vs. Central V. E. Co., 60 Vt., 121; s. c, 14 Atl. Rep., 92 ; Barton vs. Barbour, 104 U. 8., 126. LIMITATIONS. § 925. Formof necessary ohjection. — Under a provision in the Statute of Limitations to the effect that the objec- tion that the action was not commenced within the time limited can be taken only by answer,^ a general allegation that the action is barred by the Statute of Limitations is not sufficient.^ " N. T. Code Civ. Pro., § 413. Limitations not available as a defence unless specially pleaded as a defence. Gormley vs. Bunyan, 138 U. S., 623, 635. _ (Illinois and New York), The provision to the above effect, introduced by the catchword "How objection taken under this chap- ter," is in the chapter of the Code entitled " Limitation of the time of enforcing a civil remedy." There are a number of other limitations peculiar to particular classes of actions not specified in this chapter, such, for instance, as the two years' limitation of an action for divorce for physical incapacities (§ 1752); the two years' limitation of an action for negligence, etc., causing death (§ 1903); and the ten years' limitation on actions by the people under the " peculation act," so called (§ 1973). The provision of the Statute of Limitations forbid- ding the benefit of the statute unless the objection is taken by answer, is held to apply to such special limitations, though not contained in the Statute of Limi- tations. See Bihin vs. Bihin, 17 Ahi. Pr. {N. Z), 19 ; Kaiser vs. Kaiser, 16 Hun {N. Y.), 602. (Divorce. Otherwise of a special limitation in an act of Congress. 926.^ Undee Pabticulab Allegations. Misnomer. 737 Natl. State Bank of Newark vs. Boylan,2 Aih.N.C.,21G. (Arising under the United States statute limiting tlie time for recovering back usury received by National Bank.) As to extending exemptions from tlie statute by reason of absence, to special limitations not mentioning sucli exemptions,— see Londriggan vs. N. Y. & New Haven E. E. Co., 12 Abb. JV. O. 273 (Foreign, corpor- ation.) • Budd vs. Walker, 29 Hun {N. Y.), 344 ; s. c, 3 N. Y. Civ. Pro. a., 422. (Allegation that the claims are stale and outlawed, claiming the benefit of all statutes, etc., insufficient.) To same effect, Paine vs. Comstock, 57 Wis., 159, and cases cited. The proper form is, that the cause of action did not accrue at any time within the statutory period [specifying it] next before the commencement of this action. Bell Vs. Tates, 38 Barb. (JV. Y.), 627. MISNOMEE. § 936. Misnomer of a party on the § 937. Oral evidence of mistake in record. ■writing. 938. Amending. § 926. Misnomer of a pa/rPy on the record. If no question is made as to whetlier tlie person appearing at the trial is tlie one seeking to recover idetity of the as plaintiff or against whom recovery is sought as defendant, a misnomer of him considered merely as an objection that he is not properly named upon the record so as to show con-ectly who is before the Court, is waived unless pleaded ; and therefore if not pleaded, cannot avail as a defence at the trial.^ This rule applies to corporations,^ and to private per- sons suing in a supposed corporate name,^ as well as to individual parties. At Common Law,^ and perhaps in the United States Courts, eventhose sitting in Code States/ a plea to raise this objection must be a plea in abatement, and the ob- jection will therefore b« waived by a plea in bar. 738 Abbott's Brief ok the Pleadings. Evidence [§ 937. Under the New Procedure, tlie objection may, like any other defence, be pleaded, in an answer together with other defences." ■ Traver vs. Eighth Av. R. R. Co., 4 Abh. Gt. App. Dec. {N. Y.), 422; s. c, 6 Abb. Pr., {N. S., N. Y.), 46; 3 Keyes (JV. Z), 497; Heafds' Civ. PL, 221. (Under Code.) Dohorty vs. Madgett, 58 Vt, 323 ; s. c, 2 Atl. Rep., 115 ; s. c, 3 East. Bep. 459 (Common Law.) Hoffield vs. Board of Education of the'City of Newton, 33 Kans., 644 ; s. c, 7 Pac. Rep., 216. Gompare McGaughey vs. Woods, 106 Ind., 380 ; s. c, 7 North East. Bep., 7. (Holding that tlie objection that there was no such person as the one named as plaintiff was waived by default.) ' Hoffield vs. Board of Education of the City of Newton (above cited). Barnes vs. Ferine, 9 Barb. {N. Y.), 202, aff'd in 12 K T., 18. An answer objecting that defendant is misnamed must , state his true name. White vs. Miller, 7 Hun (N. Y.), 427, 433 [reversed on another point in 71 N. Y., 118] ; Louisville, etc., E. E. Co. vs. Hall, 12 Bush. {Ky), 131. " Bank of Havana vs. Magee, 20 N. Y., 355, aff'g 7 Abb. Pr. {K Y.), 134 ; 16 How. Pr. {N. Y.), 97. * Mann vs. Carley, 4 Cow. {K Y.), 148. First National Bank vs. Jaggers, 31 Md., 38. Louisville, etc., E. E. Co. vs. Hall, 12 Bush {Ky.), 181. Pennsylvania Co. vs. Sloan, 125 III., 72 ; s. c, 14 West. Rep., 379, 381 ; 17 North East. Rep., 37. S. p., Hudson vs. Poindexter, 42 Miss., 304. (Demurrer overruled because objection should be taken by plea in abatement.) ' Cuthbert vs. Galloway, 35 Fed. Rep. 466. ' Traver vs. Eighth Ave. E. E. Co. (above cited). § 927. Oral evidence of midake in %oriting. — Where a contract is alleged in which defendant has been desig- nated by a wrong name, oral evidence is admissible to fshow the mistake for the purpose of holding him liable. Cleveland vs. Burnham, 64 Wis., 347 ; s. c, 25 North West. Bep., 407. § 928.] Under Pakticulak Allegations ; Misnomer. 739 § 928. — Amending. — ^Where an objection to misno- mer amounts only to an objection that there is a variance between the allegation and the proof, the allegation is amendable at tlie trial if the party objecting has not been misled.^ Where a misnomer raises the objection that the proper party, plaintiff or defendant, is not correctly named on the record, it is equally curable by amendment at the trial, if the party is actually before the Court, and the objector has not been misled.^ Otherwise if the error involves the identity of the party on tlie record, as for instance where the proper party was not served and has not appeared. ' McCrory vs. Anderson, 103 Ivd., 12 ; s. c, 2 North East. Bep., 211. • And see Eiley vs. Stern, 23 Alh. N. C. (N. Y.), 435 ; An- derson vs. Horn, id., 475. The objection that the name of the plaintiff is erroneous, or that there was no such person, does not, in the ab- sence of fraud or collusion, render a judgment suffered by default, void or impeachable collaterally ; for the faUure to object before judgment, waives the error. McGaughey vs. "Woods, 106 Ind., 380 ; s. c, 7 North East. Hep., 7. (In this case a fresh action to vacate the judgment was treated as a collateral proceeding ; but in New York and some other jurisdictions, such an action equally as a motion in the original action is re- garded as a direct attack.) Hathaway vs. Sabin, 61 Vt., 608 ; s.c, 18 Atl. Bep., 188. ("Doing business under the name of," added at the trial.) Traver vs. Eighth Ave. E. E. Co., 4 Abb. Ct. App. Dec. {N. Y.), 422 ; s. c, 3 Keyes, 497. (Married woman desig- nated by maiden name.) Bank of Havana vs. Magee, 20 N. Y. 355, aff'g 7 Abb. {W. Y), 134; 16 Sow. Pr. {N. Y.), 97. (Bank wrongly named.) Wolcott vs. Meech, 22 Barb. (N. Y), 321. (Omission of first given name immaterial.) Pape vs. Capital Bank, 20 Kans., 440. (Suing as " The Capital Bank of Topeka," instead of "The Capital 740 Abbott's Brief on the Pleadings. Evidbkce [§ 929. Bank," the bank being located in Topeka, — disregarded as immaterial.) MISTAKE. , [See also Misnomeb.] § 929. Necessary allegation. § 933. Mistake as an avoidance though 930. — alternative. not pleaded. 981. Demand of reformation. § 929. — Necessary allegation. — Where mistake in a written instrument is to be pleaded, the actual intent and the erroneous clause must both be stated in order to let in evidence.^ But a formal allegation of mistake, by the use of that word, is not essential.^ ' Coles vs. Bowne, 10 Paige {N. T.), 526. Wemple vs. Stewart, 22 Barb. {N. Y.), 154. s. p., Sherwood vs. Sherwood, 45 Wise, 357. (Holding it not enough to allege that the mistake — a misdescrip- tion in a will — was apparent on the face of the instru- ment, for this was a mere conclusion.) ' Maher vs. The Hibernia Ins. Co., 67 N. Y., 283, aff'g 6 Mun (iVi Y.), 353. (Action on insurance policy, asking reformation for mistake as incidental to recovery.) § 930. — alternative. — An alternative allegation that the statement in the instrument of a matter was errone- ously inserted, either purposely or inadvertently, and that it was not in fact true, is sufficient to let in evidence of either cause of error. Brake vs. Sparks, 117 Ind., 89 ; s. c, 19 North East Bep., 719. And see Kneer vs. Bradley, 105 Pa. St., 190. s. p., § 596, and cases in note in 24 Abb. N. C. {N. Y.), 326, on pleading alternative grounds of recovery. § 931. Demand of reformation. — An allegation of mistake in the instrument embodying an agreement ad- mittted to have been made, (as distinguished from an allegation of mistake between the contracting parties in § 933.] Under Pakticulak Allegations ; Negligence. 741 reference to the terms or subjects of the transaction), will not let in evidence necessary to reform the instrument unless the mistake, or facts constituting it, be alleged and reformation asked as affirmative relief. Coles vs. Bowne, 10 Faige, {N. Y.), 526. King vs. Enterprise Ins. Co., 45 Ind., 43, 58. s. p.. Born vs. Schrenkiieisen, 110 ]V. Y., 55. (But holding the objection unavailable on appeal, because not taken at the trial.) § 932. Mistahe as an avoida7ice, though not pleaded. — Where defendant relies on an assignment, release or other such matter arising subsequent to the accrual of the cause of action, as a defence, plaintiff may prove that the instru- ment relied on was given under mistake, although he has not pleaded such mistake ; for his action is not founded upon the instrument, and he is not bound to anticipate such a defence. Meyer vs. Lathrop, 73 N. Y., 315, aff'g 10 Hun {K Y.) 66., (Foreclosure ; defendant relying on receipt in full and agreement to assign at defendant's request.) NEGLIGENCE. [See also Damages ; Nuisance ; and 'Boet. j § 933. General allegation. §936. " Gross " and " wilful " negli- 934. Non-compliance with custom- gence. ary precaution. 937. — denial. 935. Denialof defendant's negligence. § 932. General allegation. — A general allegation of negligence lets in evidence of the circumstances consti- tuting it,^ even though besides- the general allegation there is an allegation of other circumstances which are unproved.^ But where plaintiff alleges only specified circum- stances as constituting the negligence causing the injury, his proof will be confined to such allegation.'^ 1142 Abbott's Brief on the Pleadikgs. Evidekce [§ 934. 'Oldfield vs. N. Y. & Harlem E. E. Co., 14 N. Y., 310. (Eunning over a child. Under general averment, evi- dence that there were no suitable brakes or guards in front of the car is admissible.) Davis vs. Guarnieri, 45 Ohio St., 470. (Action for causing death of plaintiff's wife by negligence in selling a pois- onous drug. Held, the omission of the statutory label of " poisonous " was a circumstance that might be shown without allegation.) Dougherty vs.'Missouri E. Co., 97 Mo., 647; s. c, 15 West. Rep., 235 ; s. c, 8 South West Bep., 900. (An allegation of negligence in operating a street car, lets in evidence of the disposition of the horses.) s. p., Coudy vs. St. Louis, I. M. & S. E. Co., 85 Mo., 79. ' Edgerton vs. N. Y. & Harlem E. E. Co., 39 N. Y., 227, aff-g 35 Barh. {N. Y.), 193. Cunningham vs. Union Pacific E. Co., 4 Utah, 206 ; s. c, 7 Bac. Bep., 799. Alh. Tr. Ev., 583. = In 20_ J&5. N. a N. Y., 236, will be found a note on Alle- gation and Proof of Negligence. § 934. Non-com'plimice with customary precautions. — A general allegation of negligence in the doing of an act lets in evidence of the customary precautions to prevent injury, and that defendant omitted them. Beard vs. Illinois Central E. Co., 79 Iowa, 518; s. c, 7 Law. B. Anno., 280. (Custom of carriers to put perish- able goods in cold storage during delay.) Henry vs. Sioux City & P. E. Co., 66 Iowa, 52 ; s. c, 30 North West. Bep., 630. (Injury to servant ; evidence of company's rules, and their non-observance.) § 935. Denial of defendant's negligence. — A denial u. an allegation that defendant's negligence caused the injury sued for, lets in evidence of defendant's acts of caution and prudence.^ Also, that a third person's negligence or wilful act may have caused the injury.^ Also, that plain- tiff's contributory negligence may have caused it.^ But it does not let in plaintiff's agreement to take the risk.* § 936.] Under Paeticular Allegations; Negligence. 743 ' Stevens vs. Lafayette, etc., E. Co., 99 Ind., 392. (Alle- gation of negligent construction of fence, obstructing stream, and destroying plaintiff's bridge. Denial lets in evidence that it was constructed in the best manner to avoid injury to the bridge.) Kendig vs. Overhulser, 58 Jowa, 195. (Defendant may show affirmatively what prudence and caution he em- ployed.) ' Ireland vs. Cincinnati, W. & M. E. Co., 79 Mich., 163; s. c, 44 North West. Rep., 426. Hoffman vs. Gordon, 15 Ohio St., 211. (Special allegation is not new matter, but only a denial.) s. p., Andrews vs. Miles, 15 N. Y. Weekly Dig., 290. (Ownership of cattle escaping through fence.) " McDonnell vs. Buffum, 31 How. Pr. {N. Y.), 154. s. p., Lee vs. Troy Citizens' Gas Light Co., 98 N. Y, 115 ; s. c, 20 N. Y. Weekly Dig., 413. (Holding that it is not necessary for the complaint to set out the absence of contributory negligence, since the fact was involved in the allegation that the injury was occasioned by de- fendant's negligence. Citing Hackford vs. N. Y. C. E. E. Co., 6 Lans. {N. Y.), 381; s. c, 13 Abb. Pr. JV. S., 18 ; 43 Row. Pr., 222. Fernbach vs. City of "Waterloo, 76 Iowa, 598 ; s. c, 34 North West. Rep., 610. To same effect, McQuade vs. Chicago & N. W. E. Co., 68 Wise, 616. (So holding, especially where the complaint alleges that it occurred without fault of plaintiff.) \_Oontra, Schlereth vs. Missouri Pac. E. Co., 96 Mo., 509 ; s. c, 10 South West. Rep., 66. (Where the only defence is a general denial, contributory negligence is no defence, unless shown by plaintiff's evidence.) Donovan vs. Hannibal & St. Joseph E. E. Co., 89 Mo., 147; s. c, 5 West. Rep., 396.] ■* Citizens' Street E. Co. vs. Twiname, 111 Ind., 587; s. c, 13 North East. Rep., 55 ; 10 West. Rep., 824. § 936. " Gross ''^ and '■'■ wilfuV negligence. — An allega- tion of gross and wilful negligence/ or gross negligence and recklessness,^ will not let in evidence of such wilful injury as must be shown to render defendant liable irre- spective of contributory negligence or of being a trespasser. But under such allegations, unintentional negligence may be shown, if the allegations of the complaint would otherwise sustain a recovery on such ground.^ 744 Abbott's BsiEr on the Pleadings. Evidence [§ 937. ' Belt Eailroad & Stock Yard Co. vs. Mann, 107 Ind., 89 ; s. c, 5 West. Rep., 314. " Chicago & Eastern Illinois E. E. Co vs. Hedges, 105 Ind., 398; s. c, 3 West. Bep., 892. § 937. — denial. — Under a denial of an allegation that the act was wrongful, unlawful, and negligent, de- fendant is entitled to prove the lawfulness of the work in which he was engaged, so that his liability may be determined on a question of negligence. Cunningham vs. Wright, 28 Hun {JSf. F.), 178. NUISANCE. [See also Damages ; Negligence ; and Toet.J § 938. Variance A complaint stating facts con- stituting, a nuisance, as the cause of action, does not let in evidence of mere negligence resulting in the injury complained of ;' nor does it let in without amendment evidence of facts substantially different from those alleged, although producing substantially the same an- noyance and injury as alleged.^ ' See note on distinction between Negligence and Nuisance as causes of action in 25 Abb. N. G. {N. Y.), 195. ''Kosmak vs. Mayor, etc., of N. Y., 53 Hun {N. Y.), 329; s. c, 6 N. Y. Supp., 453 ; 24 N. Y. State Rep., 798. (Alle- gation of discharge of refuse from a public sewer does not let in proof of a private sewer from premises of which the city was owner.) s. P., O'Brien vs. City of St. Paul, 18 Minn., 176. Hill vs. Supervisor of EoadDist. No. 6, 10 OUo St., 621. (Allegation of obstructing road hj building fence across it, does not without amendment let in evidence of obstruction by overflow of water caused by building fence by the side of it.) § 940.] Under Pakticulae Allegations; Ordinances. 745 OFFEE. § 939. Omission of offer to do equity. — The fact that there is no offer in the bill or complaint to do equity as a condition of the relief asked, — as for instance in an action to cancel a usurious security, — is not available at the trial if not taken by demurrer. Schermerhorn vs. Talman, 14 iV. Y., 93, lii9. (Conceding tlie rule to be otherwise on demurrer.) Followed in Beecher vs. Ackerman, 1 Bdbt. (N. Y.), 30 ; s. c, 1 Abb. Ft., N. 8., 141 ; s. p., 51 N. Y, 670. As to necessity of an offer of return or surrender, in order to the rescission of a contract for fraud, etc., see note in 14 Abb. N. a {N. Y), 301. OEDINANCES. [See also By-laws.] § 940. Must be pleaded. — Evidence of an ordinance of a municipal corporation is not admissible to establish a cause of action ^ oi- a defence^ founded on it, unless it has been specially pleaded. [Its admission in an action for negligence independent of the ordinance is another question.] ■ Blanch ard vs. Lake Shore & M. S. E. Co., 126 III, 416. [In Whittaker vs. N. Y. & Harlem E. E. Co., 51 N. Z. Super. Ct., 287, an ordinance was admitted to show negligence, although it seems not to have been pleaded, but the Court does not notice the point. See also to same effect Eeich vs. Mayor, etc., of N.Y., 12 Daly (N. Y.), 72 (to show a nuisance); Cumming vs. Brooklyn City E. Co., 38 Hun {N. Y.), 362. s. p.. Archer vs. N. Y., iSTew Haven, etc., E. Co., 106 N. Y., 589, admitting a for- eign statute not pleaded in order to show negligence of defendant, a railway, which was admittedly a corpora- tion of the State whose statute was introduced.] 'Mooney vs. Kennett, 19 Mo., 551. (Justification.) 746 Abbott's Bkief on the Pleadings. Evidence [§ 941. OWNEBSHIP. [See also Assignment ; Bona-fide Puechasee ; and Title.] § 941. General allegation. § 943. Denial. § 941. General allegation. — A general allegation of ownership lets in evidence of any interest in the prop- erty which will support the cause of action or defence.' For this purpose an allegation describing articles as goods and chattels of the plaintiff is enough.* ' Phoenix Ins. Co. vs. Eowe, 117 Ind., 202 ; s. c, 20 North East. Bep., 122. (Insurable interest.) Loeb vs. Chur, 6 N. T. 8upp., 296 ; s. c, 25 State Bep., 996. (Answer of absolute ownership let in proof of holding as collateral.) Gorum vs. Carey, 1 Abb. Pr. {N. Y.), 285. (Allegation of ownership let in evidence of holding as factor. ) s. p., Carter vs. Bowe, 41 Hun {K Y.), 516. (Sheriffs' answer that the goods belonged to the execution debtor, let in evidence that the debtor's transfer to plaintiff was a fraud on creditors.) ' Tell vs. Beyer, 38 N. Y., 161. (Holding under such a description that ownership was admitted if not denied.) s. p. on, demurrer, Childs vs. Hart, 7 Barb. {N. Y.), 370. § 942. Denial. — Where the allegation of ownership is general without stating facts showing it, a denial lets in any evidence to disprove plaintiff's ownership, including evidence of fraud/ or ownership of defendant * or a third person. ^ Where the allegation consists of a statement of the facts upon which ownership depends, a general denial only denies those facts, and does not let in evidence to disprove ownership otherwise than by controverting the facts alleged.^ And a mere denial of ownership without denying the facts will not let in evidence to disprove such facts.® § 943. J Under Paeticulae Allegations; Paetnebship. 747 ' Eureka I. & S. Works vs. Bresnahan, 66 Mich., 489 ; s. c, 10 West Bep., 194; s. c, 33 North West Rep., 834. S. p., stern Auction & Commission Co. vs. Mason, 16 Mo. App., 478 ; Young vs. Glascock, 79 Mo., 574. Merrill vs. Wedgwood, 25 Nd)r., 283 ; s. c, 41 North West Bep., 149. Wager vs. Ide, 14 Barb. (N. Y.), 468 ; Avery vs. Mead, 12 N. Y. State Bep., 749 ; s. c, 46 Hun, 682. s. p., Bailey vs. Swain, 45 Ohio St., 657. Mather vs. Hutcliinson, 25 Wis., 27. ' Whitcher vs. Shattuck, 85 Mass. (3 AUen.), 319. (Eeplevin.) Foye vs. Patch, 132 Mass., 105. Staubach vs. Rexford, 2 Mont., 565. Schoenrock vs. Farley, 49 N. Y. Super. Ct. {J. & 8.\ 302. [If a wrongful taking will sustain plaintiff's cause of action for conversion of personal property, defendant cannot justify such taking by showing ownership in himself, although plaintiff has alleged ownership. Klinger vs. Bondy, 36 Hun {N. Y), 601 ; s. c, 21 N Y. Weekly Dig., 483 ; s. p., Emerson w. Thompson, 59 Wis., 619. See also Detention.] ' Schulenberg vs. Harriman, 21 Wall., 4A, 59. (Eeplevin. A denial of plaintiff's allegation of property and right of possession lets in evidence of title in another.) s. P., DriscoU vs. Dunwoody, 7 Mont, 394 ; s. c, 16 Pacific Bep., 726. Woodsum vs. Cole, 69 Cal., 142 ; s. c, 10 Pacific Bep., 331. (Action by indorsee of promissory note. Defendant may show that plaintiff paid no money for the note, and was not the legal owner.) * Johnson vs. Oswald, 38 Minn., 550. ' Hawes vs. Ryder, 100 Mass., 216. (Indorsement of note.) Holbrook vs. Sims, 39 Minn., 122 ; s. c, as Holbrook vs. Usher, 39 North West Bep., 14:, 140. s. p., Poorman vs. Mills, 35 Gal., 118. PAETNEESHIP. § 943. Defect of parties. § 946. Abortive special partnership. 944. Joint act, or flrmact. 947. False representation of being 945. Separate individual act. partners. § 943. Defect of parties. — A mere denial of an alle- gation of partnership, does not let in evidence that there are other members of the firm who should have been made parties. 748 Abbott's Brief ok the Pleadings. Evidence [§ 944. Karelsen vs. Sun Fire Office, 45 Hun 144 ; s. c, 9 N. Y. State Bep., 831. (Holding that the fact should have been pleaded, and that they were still living, etc.) § 944. tToint act or f/i'in act. — In a legal action on con- tract, an allegation of a partnership and tlie making of the contract by or to the firm, lets in evidence of a joint contract or obligation made by or to the same persons, though the partnership be not proven.^ An allegation of a Joint contract lets in evidence that the joint contractors w^ere co-partners, and contracted as such.^ ■ Millard vs. Thorne, 56 N. Y., 402 ; s. c, 15 Abb. Pr. {N. 8.), 371. (Partnership of defendants not material.) s. P., Lee vs. Orr, 70 Cat., 398. (Partnership of plaintiffs suing on a judgment recovered by them jointly not material.) Geddes vs. Adams, 77 Mass. (11 Gray), 384. (Denial of allegation that firm accepted a bill, does not require proof of partnership in addition to proof of acceptance.) ' Loper vs. Welch, 3 Duer {N. Y.), 644. § 945. Separate individual act An allegation of a partnership contract does not let in evidence of an indi- vidual contract by one of the alleged members, made inde- pendently of the firm. McLewee vs. Hall, 103 N. Y., 639 § 946. Abortive special part7iership. — An allegation of partnership is supported by evidence of an abortive attempt to form a special partnership. Vanhorn vs. Corcoran, 127 Pa. St., 255. Stone vs. De Puga, 4 Sandf. {N. Y.), 681. Abendroth vs. Van Dolsen, 131 U. S., 66 ; s. C, 33 L. ed., 57; s. c, 9 Sup. Ct. Rep., 619. Sharp 'vs. Hutchinson, 100 iV. Y., 533; s. c, ^ N. Y. Weekly Dig., 368. § 948.] TJndek Paeticulak ALLEeAMONs; Payment. 749 Bell vs. Merrifield, 109 N. T., 202. [In some of these cases tlie admissibility of the evidence was put, in part at least, on the fact that the answer pleaded the special partnership as new matter, and that plaintiff can give without replication any evidence to controvert new matter.] s. p., Eosenbergh vs. Block, 50 N. Y. Super. Ct. {J. <& S.), 357. (Action by alleged special partnership not allowed to fail by reason of ineffectual formation, because the interest of the plaintiffs was the same. But the judg- ment was reversed on the ground that the partnership was a sham, and fraudulent. 102 N. Y., 255.) § 947. Milse representation of heing partners. — An allegation of partnership between defendants in contract- ing lets in evidence of their holding themselves out as partners, and the obtaining of credit thereby in the con- tract in question. But it is not competent to prove merely that the de- fendant sought to be charged by the pleading as a partner induced plaintiff to give credit to the other .defendants, and so hold him liable with them on his individual promise.^ McLewee vs. Hall, 103 N. Y., 639. s. p., Eeber vs. Columbus Mach. Mf'g Co., 12 Ohio St., 175. ' McLewee vs. Hall (above cited). PAYMENT. § 948. Medium. § 951. Denial. 949. Payment by third person. 953. Payment down or in advance. 950. Set-off, accord, etc. 953. Statutory presumption, or bar. § 948. Medium. — An allegation of the payment or delivery of money lets in evidence of payment or delivery in any medium which the parties to the transaction ex- pressly treated as money; ^ but not other property not so treated,^ unless where the party charged has by neglect 750 Abbott's Brief on the Pleadings. Evidence [§ 949. or conversion raised a presumption that he has received money. ' Picard vs. Bankes, 13 East, 20. " See cases in Abb. Tr. Ev., 263, and Mann vs. Moore- wood, 5 Sandf. {N. Y.), 557. § 949. Payment hy third person.- — An allegation of payment lets in evidence of payment by a third person. Gray vs. Herman, 75 Wise, 458; s. c, 44 North West. Rep., 248. (With dictum that payment by a stranger, accepted by plaintiff in satisfaction, would be enough.) s. P., Alh. Tr. Ev. 800 (3), and eas. in n. 3. § 950. Set-off, accord., etc. — An allegation of payment or of set-off does not let in evidence of an accord and satisfaction. An allegation of payment does not let in evidence of payment to a third person which might have- been pleaded and proved as a set-off.* ' "Wheaton vs. Nelson, 11 Gray (Mass.), 15. s. p., Ulsch vs. MuUer, 143 Mass., 379 ; s. c, 9 Eastern Sep., 176. s. p., Grinnell vs. Spink, 128 Mass., 25. Green vs. Storm, 3 Sandf. CI. {N. Y.), 305. (The Court say that a court of equity is restricted to the issues made by the pleadings ; and, while it endeavors to avoid technical and narrow objections, cannot admit evidence of a different case from that pleaded.) S. p., Callen vs. Schuessler, 86 Ala., 527 ; s. c, 5 Bouthern Hep., 795. (Holding evidence of paying off a claim of a third person which the vendor ought to have paid not to support an allegation of payment to the vendpr.) iCompare, for the peculiar rule in Pennsylvania, Smaltz vs. Eyan, 112 Pa. St., 423 ; s. c, 3 Atl. Rep., 772.] " Calkins vs. Packer, 21 Barb. (N. Z.), 275. (Payment to a judgment creditor of the creditor, made under the statute, hdd an offset, and not available under a general allegation of payment.) § 951. Denial. — Under the New Procedure, payment, § 951.] Under Particular Allegations ; Payment. 751 whether total or partial, of the indebtedness sued for^ cannot be proved under a denial,^ even though the com- plaint contain the usual formal but unnecessary allegation of non-payment, and this be specifically traversed.^ But if the complaint alleges that no part of the in- debtedness shown has been paid except specified sums, and demands judgment for the balance, a general denial puts in issue the allegation that no other payments have been made, and lets in evidence of other payments than those admitted.* ' A payment only collaterally involved, and fatal to the title under which the adversary claims, may be proved under a general denial. Benton vs. Hatch, 43 Him (iV Y.), 142. (Holding, in ejectment by one claiming under a sheriff's deed, that defendant under a general denial could prove that the judgment under which the sheriff sold had been previously paid. Judgment re- versed for exclusion of this evidence.) ' Morrell vs. Irving Fire Ins. Co., 33 N. Y., 429. McKyring vs. Bull, 16 JV. Y., 297. = Edson vs. Dillaye, 8 How. Pr. {N. Y.)., 273. For a collection of authorities on the admissibility of evidence tending to prove payment under the general issue, and of a general denial having the same influence as the general issue in like circumstances,. see 61 Am. Dec, 59. ' Quin vs. Lloyd, 41 N. Y, 849, rev'g 1 Sweeny {N. Y.), 253. Woodruff, J., says : " Where plaintiff sues for a balance, he voluntarily invites examination into the amount of indebtedness, and the extent of the reduction thereof by payments, etc." Brown vs. Forbes (Dak, 1889), 43 JVorth West. Hep., 93. (Eeversing judgment for error in excluding such evi- dence. Spencer, J., says : " Where a plaintiff sues for a balance, alleging that certain payments, and no others, have been made, he empowers the defendant by his general denial to have the state of the account investi- gated, the extent to which the original demand has been reduced by payments ascertained, and the amount of the balance determind. Citing also White vs. Smith, 46 AT. Y, 418.) [Otherwise if the complaint, after showing the amount of the gross indebtedness, only alleges that there is now 753 Abbott's Brief on the Pleadings. Btidenoe [§ 953. due a specified amount over and above all payments and offsets, without specifying any sums.] § 952. Payment down or in advance. — At Common Law a denial lets in evidence of payment down,^ or pay- ment in advance.® Under the Nevsr Procedure, it is the better opinion that the same rule applies ; for if the complaint alleges a contract or transaction apparently had on an executory consideration, a mere denial of the contract or transaction alleged lets in evidence of what the real contract or trans- action was.^ ' Bussey vs. Barnett, 9 Mees. & W., 312. Smith vs. Winter, 10 Eng. L. & Eq., 506. [ Contra, doubts in Littlechild vs. Banks, 7 Adol. tfe E. {N. K), 739. "Starratt vs. Mullen, 148 Mass., 570; s. c, 2 Law. R. Anno., 697 ; 20 N. East. Bep., 178. (Here, in an action for goods sold and money lent, defendant under the general issue offered evidence.) " This follows from settled principles. Of course if the plaintiff's allegation is merely of indebtedness, and a denial of it is good, such evidence would be admissible. § 953. Statutory presumption or bar. — An allegation of payment does not avail to raise the objection that the claim is barred by the ordinary statutes of limitations.^ Otherwise of a statute expressly declaring that lapse of time raises a presumption of payment.^ And under such a statute it is the better opinion that allegations showing the staleness of the debt to exceed the statute period are sufficient.^ ' Lockhart vs. Fessenich, 58 Wis., 588. " Abb. Tr. Ev., 812 (25). ° Giles vs. Baremore, 5 Johns. OJi. (N. Y.), 545. [Pattison vs. Taylor, 8 Barb. {N. Y.), 250, so far as it holds the contrary, would compel a defendant who re- lied on the presumption only to swear (if the complaint were verified) to an allegation false in fact.] § 955.] Under Particular Allegations; Tender. 753 EEAL PAETY IN INTEEEST. [See also Agency ; Author- ity ; Contract ; Ownership ; Title.] § 954. Facts must he pleaded. — Under the New Procedure evidence to show that a sole plaintiff is not the real party in. interest is inadmissible under a mere general denial, or allegation that he is not the real party in interest/ unless the case is such that plaintiff must prove ownership in order to establish his cause of action.^ If plaintiff alleges a cause of action accrued to him- self, a denial, even though coupled with an allegation that he is not the real party in interest, does not let in evi- dence that he has been divested of his title by assign- ment.^ ' Smith m. Hall, 67 N. Y., 48 ; Jackson vs. Whedon, 1 K D. Smith {N. Y.), 141. s. p., State ex rel. Euhlman vs. Euhlman, 111 Irvd., 17 ; s. c, 11 North East. Bep., 793 ; 9 West Eep., 275. (On demurrer.) " See §§ 941, 942, Ownership.] ' Saunders vs. Chamberlain, 13 Hun {N. T.), 568 Kettletas vs. Maybee, 1 Code R.,M. 8. {N. Y.), 863. TENDEE. [See also Contract ; Demand.] § 955. Necessity and effect of alleging. — A tender cannot be proved unless pleaded.^ But if no objection is made in the pleadings to an omission to allege payment into court, such payment may be made at the trial.^ Where tender is not part of the contract, but an act in pais, an allegation of tender lets in evidence of a waiver of tender.* ' Sidenberg vs. Ely, 90 N. Y., 257, 266 ; s. c, 11 Ahb. N. G., 354; 15 N. Y. JVeeMy Big., 400. " Halpin vs. Phenix Ins. Co., 118 N. Y., 165; s. c, 28 N, Y. State Bep., 788; 23 North East. Bep., 485. = Woolner vs. Hill, 93 N. Y, 581. 754 Abbott's Brief on the Pleadings. Evidence [§ 05*^- TITLE. [See also Owneeship.] § 956. General allegation. § 959. Adverse possession. 957. Indirect allegation. ' 960. Amending. 958. Denial in general language. 961. Failure to prove. § 956. General allegaUon. — A general allegation that a party is the owner in fee simple lets in evidence of the source and particulars of his title. West vs. Cameron, 39 Kans., 736; s. c, 19 Paeif. Rep., 616. (Answer in ejectment.) Monaghan vs. Agricultural F. Ins. Co., 53 Mich., 238; s. c, 13 Ins. L. J., 497. (Action on fire policy ; allegation of title by will and evidence of title by deed. Dictum.) Ostrander vs. Hart, 30 N. Y. State Rep., 170; s. p., 8 N. Y. Supp., 809. {Dictum, that it would be improper to plead the evidence of title.) Cruger vs. McLaury, 41 N. Y., 219. (Ejectment: allega- tion of title by deed, evidence of title by inheritance; — hdd, an immaterial variance.) Yan Eensselaer vs. Jones, 2 Barh. {N. T.), 643. (Allega- tion of title to all; evidence of title to part admissible.) Whether it lets in evidence of any lesser estate sufficient to maintain the action, compare the following cases. [The better opinion is that this is usually to be treated as a question of surprise and prejudice.] Lane vs. Schlemmer, 114 Ind., 296 ; s. c, 15 North Ec§t. Rep., 454, 12 West. Rep., 922. s. p., Eichards vs. Smith, 98 N. C, 509 ; s. c, 4 South East. Rep., 625. Vail vs. Long Island E. Co., 106 N. Y., 283. Bruce vs. Kelly, 39 N. Y., Super. Ct. {J. dt S.), 27; Smith vs. Portland', 30 Fed. Rep., 734. House vs. Howell, 6 N. Y. Supp., 799; s. c, 25 State Rep., 277. Mays vs. Pryce, 95 Mo., 603; s. c, 14 FFest. Rep., 809. St. Louis, etc., E. Co. vs. Whitaker, 68 Tex., 630 ; s. c, 5 South West. Rep., 448. § 957. hidirect allegation. — In personal actions and in trespass, plaintiif 's title is matter of inducement ; and describing the premises as "plaintiff's," or "his house," § 958.] Under Particular Allegation's; Title. 755 or " tlie house of tlie plaintifl'," or. in equivalent language, lets in evidence of his title. 1 Chitt. PI., 16 Am. ed., 395. Solomon vs. Grosbeck, 65 Mich., 540 ; s. c, 9 West. Sep., 105 ; s. c, 36 JVorth West. Bep., 163. s. p., Fiske vs. Bailey, 51 N. Y., 150 ; Quackenbos vs. Edgar, 61 JV. Y., 653, aff'g 34 N. Y. Super. Ct. {J. & S.), 333. § 958. Denial in general language. — If the adverse party alleges title only by a general allegation of owner- ship, a denial thereof puts the title in issue and lets in ■evidence of any facts to controvert or impeach the title.^ If the adverse party has alleged facts showing the de- rivation of his title, a denial in general language that he is owner, or an allegation that another person is owner in fee-simple, without denying -the particulars alleged as source of title, is insufficient.^ ' Terrell ?;s.Wheeler, 13 JST. Y. Civ.Pro. E., 178. (Ejectment.) Zolnowski vs. Shannon {N. Y. Supm. Ct. Okamb., Law- rence, J.), N. Y. Daily Beg., Dec. 18, 1889. (Action for specific performance : motion to make more definite and certain, denied.) Sparrow vs. Ehoades, 76 Cal., 208. (Denial of title lets in illegality in consideration of the deed under which plaintiff claims.) Hastings vs. Hastings, 110 Mass. 280. (Trespass : denial lets in evidence that the parties are tenants in com- mon.) s. P., 1 Chitt. PI, 16Am. ed., 640. Under the New Procedure it is the better opinion that even in an action of a legal nature in which the title to land may be determined, — as ejectment or trespass, — defend- ant may disprove plaintiff's title by showing a title of an equitable nature in himself, without specially plead- ing such title. Begg vs. Begg, 56 Wise, 534. Wakefield vs. Day, 41 Minn., 344. s. p., Despard vs. Walbridge, 15 N. Y., 374. [Contra, Powers vs. Armstrong, 36 Ohio St., 357.] Kennedy vs. Daniels,'20 Mo., 104. " McCloskey vs. Barr, ( U. S. C. Ct., Ohio), 38 Fed. Rep., 165; s. c, 21 Ohio L. J., 287. 756 Abbott's Bkief on the Plbadin^gs. Evidence [§ 959. Turner vs. WMte, 73 Cal, 299. [Contra, Morgan vs. Tillottson, 73 Cal., 520 ; s. c, 15 Foci/. Rep., 88.] An allegation tliat under a deed (not set forth) the party did not acquire " the title to any real estate," is a mere conclusion of law. Flax Pond Water Co. vs. Lynn, 147 Mass., 31 ; s. c, 3 New Engl Bep.„ 522. § 959. Adverse possession. — A general denial, or de- nial of title, lets in evidence of adverse possession such as to vest absolute legal right, ^ in the absence of any statute provision requiring the statute of limitationts to be pleaded.^ ' Campbell vs. Holt, 115 U. S., 620 ; s. c, 29 Law. ed., 483, and. cas. cit. 3 Harv. L. Rev., 321. Hill vs. Bailey, 8 Mo. App., 85. s. p.. Powers vs. Armstrong, 36 Ohio St., 357. ''Hansee vs. Mead, 27 Hun {N. Y.), 162; s. c, 2 Civ. Pro. B. (Browne), 175 ; 14 N. T. Weekly Dig., 372. S. p., Bobinson vs. Allen, 37 Iowa, 27. [Compare Donahue vs. Thompson, 60Wisc., 500 ; s. c, 19 Jf/'orthWest. Hep., 520. § 960. Amending. — A variance betvreen the pleading and the proof in respect of the source or extent of the title or ownership, is amenable at the trial. Avery vs. N. T. Central, etc., E. E. Co., 106 N. T., 142. Van Home vs. Campbell, 101 N. Y., 608, reaffirming 100 id., 287 ; s. c, 22 Weekly Dig., 417, affg 3 Hun {N. Y.), 218 ; s. c, 5 iV. Y. Supm. Ct. {T. & C), 677. McCammon vs. Detroit, etc., E. Co., 66 Mich., 442; s. c, 33 North West Rep., 728. § 961. Failu/re to prove. — When possession vrill sup- port the action, an unnecessary allegation of title will not vitiate, but the failure to prove it may be disre- garded. Teargain vs. Johnson, 1 Taylor {N. C. Supr. Ct.), 80 ; s. c, 1 Am. Dec., 581. (Action for overflowing plaintiff's land.) 964.] Undee Pakticular Allegations; Tort. 757 TOET. [See also Detention ; Illegality ; Negligence ; Ntri- SANCE.] § 962. Informal allegation of malice. § 964. Justification inadmissible un- 963. Allegation of malice surplusage. der a denial. § 962. Informal allegation of maliee. — A complaint for damages for assault and battery, which does not al- lege in terms that the assault was made with malice, but does allege facts from which malice may be inferred, — viz., that the assault was made without any cause or provoca- tion and with great force and violence, — is sufficient to admit proof of defendant's acts tending to establish the existence of malice. Elfers vs. WooUey, 116 N. Y., 294. § 963. Allegation of malice swrflusage. — In an action for tort, an allegation that a wrongful act was maliciously done lets in evidence of negligence also alleged,^ imless the wrong is one in which malice is of the gist of the action. McCord vs. High, 24 Iowa, 336. s. p., Eanton vs. Holland, 17 Johns. {N. Y.), 92. [Compare § 936, JVegligence; and cases in 25 Abb. N. C, on distinction, tinder the New Procedure, between pleading negligence, nuisance, and wrongful act.] '8 964. Justification inadmdssible under a denial. — Evi- dence of authority or excuse for the doing of an other- wise wrongful act constituting a tort at common law is inadmissible under a denial of such act.^ But this rule does not preclude defendant from dis- proving any right or title which plaintiff has alleged and needs to prove.^ 758 Abbott's Brief on the Pleadings. Evidence. [§ 964. ' Omaha & Q. Smelting & Eefining Co. vs. Tabor, 13 Colo., 41 ; s. 0., 2 Denver Leg. News, 281 ; 21 Fac. Sep., 925. (A third person's right of possession ; relied on in tres- pass.) Warren vs. Carey, 145 Mass., 78 ; 12 North Bast. Hep., 999 ; 4 New Erigl. Bep., 867 (license to overflow land); Ward vs. Bartlett, 12 Allen {Mass.), 419; Mann vs. Tuck, id., 420 ; Cooper vs. McKenna, 124 Mass., 284. American Tool Co. vs. Smith, 1 N. Y. State Bep., 761. (Tax warrant ; judgment reversed for error in receiving it.) Wehle vs. Butler, 12 Abb. Pr., N. 8., 139 ; s. c, 35 N. Y. Super. Ot. {J. & S.), 1. (Action for the wrongful taking of goods, under attachment; evidence of subsequent retention and sale of the goods under process claimed to be valid, inadmissible.) Pier vs. Finch, 29 Barb. {N. Y), 170. (Eegulations of company justifying defendants, their servants, in eject- ing plaintiff from train.) Van Buskirk vs. Irving, 7 Coio. {N. Y.), 35. (Trespass.) Beaty vs. Swarthout, 32 Barb. {N. Y.), 293. (Conversion.) Mack vs. Kelsey, 61 R, 399; s. c, 17 Atl. Bep., 780. (Justification of assault by showing defendants were acting as prudential committee, and teacher of a school.) Compare Keep vs. Quallman, 68 Wis., 451. (Assault and battery. Held, error to exclude evidence of plain- tiff's quarrelsome disposition, it appearing that he had accosted defendant in a threatening manner, and had previously threatened him.) ' See § 844, Detention, and § 942, Ownebship. So a denial of license does not let in evidence of an abandonment of the license. Wilson vs. StoUey, 4 McLean {U. S C. Ot.), 275. In Hoxsie vs. Empire Lumber Co., 41 Minn., 548 (tres- pass for cutting logs), it is held that such authority may be proved under a denial, as bearing on the question of good faith, and consequently on the damages. I 966.] Vakiance; and Amendment to Let in Evidence. 759 7. Variance; and Amending to let in Evidence oe CoNFOKM TO Proof. § 965. Variance a question for Court. § 971. Amending as to defences. 966. Immaterial variance dlsre- 972. Amending as to capacity. garded or cured by amend- 973. Pact implied, ing. 974. Inherent power. 967. Proof of surprise. 975. Not precluded by stipulation 968. Previous knowledge does not to try issue. disprove surprise. 976. Leave to amend does not su- 969. Previous knowledge ground persede waiver of jury. for refusing amendment. 977. Bill of particulars. 970. Amending as to cause of ac- 978. Powers of United States Court. tion. § 965. Variance a question for Court. — The question whether there is a vai'iaiice between an allegation and an offer of evidence under it is for the Court to determine, not for the juiy. Oxley vs. Storer, 54 lU., 159. Eiley vs. Dickens, 19 III., 29. (Note on which the action was brought.) s. p., Hendrick vs. Kellogg, 3 Gr. (la.), 215. Birch vs. Benton, 26 Md., 153. (Slanderous words.) Prescott vs. Hayes, 43 N. H., 593. (Objection to the admission of note because it varied from, the note de- scribed in the mortgage.) § 966. Immaterial variance disrega/rded or cured ly amending. — Under the New Procedure a variance be- tween pleading and proof, which does not leave an essen- tial allegation unproved in its entire scope and meaning, but only in one or more particulars, is not material unless the adverse party has been misled to his prejudice in maintaining his action or defence upon the merits ; and mav be disregarded or cured by immediate amendment. ■JV. Y. Code Civ. Pro., §§ 539, 540, 541. [The phrase "upon the merits" in the statute doubtless includes 760 Abbott's Brief on the Pleadings. Evidence. [§ 966. the merits of a dilatory defence not going to " tlie merits of the action " in the ordinary sense.] Thomas vs. Nelson, 69 N. Y., 118. (Where, in an action for rent, allegation of a leasing for seven years, hdd, competent to prove a verbal lease for that or a shorter period.) Hauck vs. Craighead, 4 Sun {N. Y.), 561. (Allegation that defendant indorsed the contract; proof that he joined in and signed it, immaterial variance.) Poirer vs. Fisher, 8 Bosw., 258. (Upon an allegation of agency, and failure to account as agent, plaintiif may recover on proof of a joint adventure and failure to ac- count in respect thereto.) Compare Marsh vs. Masterton, 101 N. Y., 401. (Holding that on an allegation of partnership and claim for profits, plaintiff could not recover on proof of employ- ment and claim for compensation in proportion to profits. The cases are not necessarily inconsistent, because, although both partnership and joint adven- ture are in the nature of agency, yet an allegation of agency, being the more general, may be held to include any specific form of agency if defendant is not sur- prised ; whereas an allegation of the specific relation of partnership does not include the difl^erent specific rela- tion of master and servant, although each may be a species of agency.) Sussdorf vs. Schmidt, 55 N. Y., 319. (Under a complaint alleging an agreed compensation for services, immate- rial variance to prove a right to recover their value only. EiOgers vs. Verona, 1 Bosiv. {N. Y.), 417. (Allegation that goods were sold and delivered to the defendant ; proof • that the goods were purchased by defendant, but de- livered to a third party for his own use by order of the defendant, immaterial variance). Babbett I'S. Young, 51 Barh. {N. Y), 466. (Allegation of due delivery according to a contract specifying the time of delivery ; proof of delivery and aceeptance after the time provided. Hdd, within the discretion of the Court to direct the jury to find in accordance with the evi- dence in absence of proof that the defendant had been misled.) Burghardt vs. Van Deusen, 4 Allen {Mass), 374. (A judgment should not be excluded by reason of a vari- ance between the allegation and the record, as to the term at which it was rendered.) Dakin vs. Underwood, 87 Minn., 98 ; 5 Am. St. Rep., 827. (Under an allegation that the party did an act by his (966. J Variance; and Amendment to Let in Evidence. 761 agent, naming him, the material fact is the act of the party ; and a variance in the agent's name, which does not mislead, is immaterial.) Nash vs. Towne, 5 Wall. (Z7. 8.), 689 ; s. c, 18 Law. ed., 527. (Action for non-delivery of goods sold. Proof of sale •and payment by a sight draft duly paid will support a declaration of a sale for so much " in hand paid.") Even under the strict rule of the Common Law, a vari- ance caused by the use of an abbreviation is immate- rial if the jury consider the meaning to be the same. Lewis vs. Few, 5 Johns. {N. T.), 29. (Reviewing the Eng- lish cases. In an action for a libel the libellous mat- ter set forth in the plaintiff's declaration contained the words " U. States "and in the paper produced in evidence " United States." Hdd, the variance was im- material.) Davis vs. Town of Guilford, 55 Conn., 354. (Variances are to be disregarded though magnifying the injury and misstating attendant circumstances. So held in an action for injury by hole in highway by which plaintiff was thrown to the ground. Failure to prove allegation that the wagon was overturned, etc., disregarded.) Bobbins vs. Diggins, 78 Iowa, 521. (Action for injuries to person from negligent driving, hdd error to charge in effect that plaintiff must prove that defendant was coming in the direction alleged.) Willis vs. Orser, 6 Bv^r (N. Y.), 322. (Action by owner of chattels under forfeited mortgage, against sheriff for seizure under process against mortgagor. Allega- tion in complaint that plaintiff became the ownerby virtue of the mortgage, and that the mortgagor was in possession until the day of levy, and that previously to the levy, payment of the mortgage had been de- manded and refused, — Held, to let in evidence that the mortgage had become absolute by demand, and that the mortgagee's possession was only as bailee or agent, iinder and consistent with the legal possession of the plaintiff.) Opin. by Duee, J. Craig vs. Ward, 1 Ahb. Gt. App. Bee. {N. Y.), 454. (On sale of a mortgage under an allegation that' it was repre- sented as good and valid, proof is admissible of rep- resentations that it was honafde and well secured, and that the mortgagor had a clear title, in absence of any- thing to show prejudice to defendant.) Place vs. Minster, 65 N. Y., 89. (A variance between complaint and the proof as to the details of a fraudu- lent conspiracy and the mode in which it is carried out, if the proof establishes such conspiracy, and an injury 762 ABBOSir's Brief on the Pleadings. Etieescb. [§ 967. to plaintiff consequent upon the carrying .out of the fraud, is not a failure of proof -within the meaning of the Code, and will not justify a dismissal of the complaint without proof that the defendant has been misled.) Zabriskie vs. Smith, 13 iV^ Y., 322. (Yariance as to the fraudulent representations alleged and proved, imma- s. p., Endsley vs. Johns, 120 lU., 469 ; s. c, 9 West., 747,' 749 ; 12 JSf. East, 247. (Holding it was only neces- sary for plaintiff to prove substantially the fraudulent representations alleged.) Packard vs. Pratt, 115 Mass., 405. ("Where the gist of the action is fraud and deceit, by which the plaintiff was in- duced to pay money for an interest in a business, the fact that he alleges a purchase, whereas the instru- ment proved is a lease, is immaterial.) § 967. Proof of surprise. — To sustain an objection that a variance (not amounting to a failure to prove an essential allegation in its entire scope and meaning) is ground for excluding evidence or for directing a nonsuit, dismissal, or finding, the objector may be required to show by affidavit that he has been actually misled, and in what respect.^ But counsel's statement that he has been so misled is sufficient, unless the adverse party calls for proof.^ ' Gaty vs. Sack, 19 Mo. App., 470 ; s. c, 1 West. Rep., 725. Catlin vs. Gunter, 11 N. Y., 868, 373. (The Court say that under the Code a question of variance is deter- mined " not by the incoherence of the two statements upon their face, and hence inferring their effect upon the state of the preparation of the party, but by proof aliunde as to whether the party was actually misled, to his prejudice, by the incorrect statement. In this case the plaintiff did not offer any proof of the character suggested, nor did he even allege that he had been mis- led. ... If then the discrepancy was a variance, as defined by these provisions, it should have been re- garded as immaterial ; and the only question is, whether it was a fault of that character or a failure of proof as defined by § 171.") To same effect, Hauck vs. Craighead, 4 Hun {N. Y.), 561 ; § 969.] Variakcej and Amendment to Let in Eyidbncb. 763 Place vs. Minster, 65 iV. Y., 89, 99 ; Bennis vs. Mc- Mahon, 14 iV'. 7. Weekly Dig., 145. To somewhat the same effect, in part at least, Dunn vs. Durant, 9 Daly UST. Y.), 389 ; Fischer vs. Max, 49 Mo., 404. Ahrens vs. State Bank, 3 So. Car., 401. (Holding that the objector must satisfy the Court immediately that he has been so misled.) " Griggs vs. Howe, 2 Abb. Ct. App. Dec. {N. Y), 291, aff'g 31 Barb., 100. § 968. Previous hnowhdge does not disprove surprise. — An objection on the ground of surprise is not answered by stowing tbat the objector before the trial knew of the facts sought to be set up. Southwick vs. First National B'k, 84 N. Y., 420, 429. Sapp vs. Aiken, 68 Iowa, 699 ; s. c, 28 North West. Bep., 24. [The reason is, that the pleading is the formal notice from the adversary of what facts he inten.ds to rely on, and counsel have a right to make preparation accord- ingly, and to be surprised if other facts, however well known, are offered instead.] So in Long Island B'k vs. Boynton, 105 N. Y., 656, Md, that the fact that defendant had before the trial moved for leave to serve an answer containing the allegation of usury he sought to prove, but without getting leave, did not avail to show that plaintiff was not surprised at the variance. § 969. Previoushnowledge ground for reftising amend- ment. — The fact that the party applying for leave to amend at the trial knew before the commencement of the trial of the matters now sought to be proved, and did not seek leave to amend, is sufficient ground for refusing leave at the trial, if the other party relied on the state of the pleadings. Butler vs. Farley, 17 iV. Y. State Bep., 109. To same effect, MuUer vs. MuUer, 21 N. T. Weekly Dig., 287. (Action to annul marriage because contracted dur- 76i Abbott's Brief on the Pleadings. Evidence. [§ 970. ing life of a previous spouse ; here the amendment sought to introduce fraud as a new ground.) S.P., Cornwall vs. Cornwall, SO Hun {N. Y.), 573. (Omission to include known grounds in the original cpmplaint, sufficient reason for refusing to allow them to be in- serted in the supplemental complaint.) § 970. Amending as to cause of action. — The Court should not at the trial allow an amendment which brings in a new cause of action.^ But the same contract or wrong may be alleged in a different manner by amend- ment at the trial so as to adapt the allegation to the facts.^ ' Ball vs. Claflin, 5 Pick., 303 ; s. c, 16 Am. Dec., 407, and note. Pakker, C. J., says : The amendment must not be for an additional claim or demand, but only a variation of the form of demanding the same thing. And see cases contrasted in next note. " Actions of Common- Law nature. Perrin t;s. Keene, 19 Me., 355; s. c, 36 Am. Dec, 759. (Action on note : allegation of original consideration allowed.) Tilton vs. Cofield, 93 U. S., 163, 166. (Action for price of goods sold : amendment alleging promissory note given therefor, not a new cause of action ; and allowable even after attachment levied.) Secor vs. Law, 4 Abb. Ct. of App. Dec. {N. Y.), 188. (Action for work, etc.: addition of cause of action upon an accounting had for the same work, allowable by a referee as well as by the Court.) [ Cowijsare United States ■2;s. Badeau {G. Ct. 8. B. N. Y), 31 Fed. Bep., 697. (Action for balance of account : not error to refuse to allow amendment substituting account stated, asked for purpose of excluding objec- tions to items.] Hodges vs. Tennessee Marine and Fire Ins. Co., 8 N. Y. 4l6. (Action on fire policy by grantee of premises pleading absolute title. Amendment alleging convey- ance as collateral security allowable.) Cassell vs. Cooke, 8 Serg. & B. (Pa.), 268 ; s. c, 11 Am. Dec, 610. (Action on a covenant, with allegation of performance of conditions precedent : amendment al- leging excuse for non-performance, allowed after the Jury was sworn.) Bernheim vs. Daggett, 12 Abb. N. C, 316, aff'd by the 970.] Vaeiance; and Amendment to Let in Evidence. 765 Ct. of App., without opinion, id., 321. (Action for fail- ure to return execution : excuse for non-return substi- tuted for denial.) Givens vs. "Wheeler, 6 Colo., 149. (Action for breach of warranty : amendment into action for deceit, not allow- able, citing cases in different States.) \_Gontra, Eighmie vs. Taylor, 39 Hun, 366, an extreme case, and not according to the weight of authority.] Lane vs. Beam, 1 Abh. Pr. {N. Y.), 65. (Contract for price of goods : amending into tort not allowable, especially after provisional remedy granted.) Baldwin vs. Eood, 15 N. Y. Civ. Pro. B., 56, 61. (Action founded on deceit in inducing a contract, not amend- able into action upon the contract.) [The power to amend by striking out allegations of tort which are not essential to the cause of action although essential to be proved were they left in the complaint because of the recent statute as to arrest, is another question. It is the better opinion that allegations of tort inserted for that purpose in a complaint on con- tract may be struck out at the trial.] See also 23 Ahh. N. C, 93. Eosenbach vs. Dreyfuss, 1 Fed. Rep., 391, 395. (Action on a statute : amendment, not as to the facts, but merely connecting the reference to the statute, not a change of the cause of action.) Hardee vs. Lovett, 83 Ga., 203. (Complaint on note, fail- ing to comply with statutory requirement of giving copy and not giving date : amendment allowable, because not a new cause of action.) Actions for Tort. Minter vs. Han. & St. J. E. Co., 82 Mo., 128 ; Davis vs. N. Y., Lake Erie & Western E. E. Co. 15 W. Y. Civ. Pro. H., 62. (Negligence : amendment giving different specifications of the precaution neglected, allowable.) Cox vs. Murphy, 82 Ga., 623. (Action for knowingly keeping and driving through the streets a vicious animal : amendment adding allegation of negligence in driving it through the streets, allowable ; but amend- ment alleging the negligent keeping of the animal so that it escaped upon the street, not allowable, because not the same cause of action.) Tumlin vs. Parrott, 82 Ga., 732. (Declaration for treble damages under the statute for killing cattle : amendment adding count for exemplary damages, independent of the statute, not allowable because a new cause of action.) 766 Abbott's Brief ok the Pleadiitgs. Etidekce. [§ 970. Parker vs. Kodes, 79 Mo., 88. (Conversion not amendable to fraud and deceit.) Benson vs. McNamee, 12 ]V. Y. State Rep., 503 ; s. c, 46 Hun, 681, mem. (Action to determine conflicting claim i; to lands under water : error to refuse to allow amend- ment showing ownership of uplands as a statutory con- dition upon which plaintiff alone could have had the grant which he had pleaded.) Daguerre vs. Orser, 3 Abb. Pr. {N. Y.), 86. (Escape : amendment to charge sheriff as bail, not allowable.) Even substantial amendment of description not a change of cause of action. Heilbron vs. Heinlen, 72 Cal:, 376 ; s. c, 14 Pac. Rep., 24 ; Eeed vs. Cheney, 111 Ind., 387 ; s. c, 12 North East. Rep., Ill ; 10 Western Rep., 252. (Ejectment). Emerson vs. Bleakley, 2 Abh. Ct. App. Dec. {N. T.), 22. (Replevin.) NoUkamper vs. Wyatt, 27 Nebr., 565 ; s. c, 43 North West. Rep., 357. Actions of Common-Latv nature ; Amending into Equitable. Broacia vs. Kelly. 66 Ga., 148. (Action on note. Amend- ment alleging deed given as security and praying fore- closure, not allowable.) White vs. Moss, 67 Ga., 89. (Ejectment : amendment setting up equitable right and demanding cancellation of deeds, not allowable.) Hobby vs. Bunch, 83 Ga., 1. (Ejectment : amendment demanding that if plaintiff had no title he might recover payment made and foreclose lien on the land, not al- lowable, because a new cause of action.) The Georgia Code forbids amendment " aidding a new and distinct cause of action or new and distinct parties." Buffalo & Grand Island Ferry Co. vs. Allen, 12 N. Y. Civ. Pro. R., 64, 70. (Action in replevin for deed, and for damages, not amendable into action for specific per- formance.) Bush vs. Tilley, 49 Barb. {N Y.), 599. '(Legal action on contract : amendment so as to ask reformation in order to let in oral evidence, not allowable, because a change . of the cause of action.) [Compare Eosboro vs. Peek, 48 Barb. (JV. Y.), 92. (Action to recover a sum paid upon the purchase of a partner- ship interest in excess of what plaintiff had agreed to pay. HeM, that it was consistent with the complaint and case embraced in the issue to perniit plaintiff to amend by asking reformation of the written bill of sale in order to introduce parol evidence of a mistake.) [But 970.] Variance; AND AJ^E^-DMENT TO Let IN Etidenob. 767 see also Oakville Co. vs. Double-Pointed Tack Co., 105 N. Y., 658.] Gas Light Co. vs. Eome, W. & O. E. E. Co., 58 Sun (N. Y.), 119. (Ejectment against a railroad : amendment to an action to restrain defendant from operating its road unless it shall pay for the right, not allowable.) Actions of Equitable Nature. Ohadwick vs. Burrows, 42 Hun {N. Y.), 39. (Creditor's suit containing allegation of fraud and also sufficient allegations to recover without proof of fraudulent intent, sustains recovery upon the latter allegation.) [Compare Third Nat. Bk. vs. Cornes, 2 iV. Y. State Bep., 543, afPg 20 N. Y. Weekly Dig., 30.] Niagara County Nat. Bk. vs. Lord, 33 Hun, 557. (Cred- itor's action against firm: allegation to extend the action to reach property of an individual member not ■ allowable). Smith vs. Mackin, 4 Lans. {N. Y.), 41. (Action to reform or rescind on allegation of mistake : after proof of fraud, amendment to conform, allowed.) s. p., Knapp vs. Fowler, 30 Hun {N. Y.), 512 ; s. c, 18 Weekly Dig., 230. Salter vs. Ham, 31 K Y, 321 ; Arnold vs. Angell, 62 N. Y, 508 ; Marsh vs. Masterton, 101 JV. Y, 401. (Action to dissolve partnership and for accounting not the same cause as action to recover for services or other- wise, upon the same contract, regarded as not consti- tuting a partnership.) Bullock vs. Bemis, 40 Hun (N. Y.), 623. (Action for part- nership accounting : insertion of allegation that settle- ment reHed on by defendant was procured by deceit, allowable.) Avery vs. N. Y. Central & Hudson Eiver E. E. Co., 106 N. Y., 142, 151. (Action to enjoin breach of a covenant ; amendment showing plaintiff's right of privity; allow- able.) Mutual Life Ins. Co. of N. Y. vs. Hoyt, 15_^ee% Dig., 489. (Foreclosure : amendment by inserting allegation of tax clause, allowed.) Actions of Equitable Nature ; Amending to Becover as at Law. Beck vs. Allison, 56 N. Y., 366. (Specific performance : amendment so as to proceed for damages as at law, allowed). s. p., Hawley vs. Simons (Ml, 1887), 11 West. Bep., 713. Halsey vs. Tradesmen's Nat. Bank, 56 Super. Ot. {J. d 8.), 7 ; s. c, 4 -Z\^. Y. Supp., 804. (Action for possession of securities and for accounting founded on fraud : not amendable to sustain mere recovery for money re- ceived.) 768 Abbott's Brief on the Pleadings. Evidence. [§ 971. § 971. Amending as to defences. — Tlie Court may allow the answer to be amended at the trial by setting up an entirely new defence/ provided it is a mere defence and not a counterclaim.'' ' Van Ness vs. Bush, 14 AU. Pr. {K Y.), 33 ; s. c, 22 How. Pr. {N. Y.), 481. (And holding that it may he done with- out imposing costs). Eowan vs. Kelsey, 4 Abb. Ct. App. Dec. (iT. Y.), 125. (Equitable estoppel.) [Contra, Graves vs. Cameron, 9 Daly {N. Y.), 152 ; un- sound, see Cunliff vs. Del. & Hudson Canal Co., 4 N. Y. State Pep., 775 (allowing statute of limitations to be pleaded); Hatch vs. Central Nat. Bank, 78 iT. Y., 487.] ' Bowman vs. De Peyster, 2 Daly {N. Y), 203. § 972. Amending as to capacity. — Under a complaint stating a cause of action against the defendants in a rep- resentative capacity, — for instance, as executors, or as ad- ministrators, — plaintiff cannot recover upon proof of a cause of action against them individually, and have judg- ment de bonis propriis} And the Court have no power to amend the complaint at or after trial for the purpose of sustaining such recov- ery; for this would substitute a new and different cause of action.^ ' Yarrington vs. Eobinson, 141 Mass., 450 ; s. c, 2 New Engl. Rep., 4n ; 6 North East., 382. {Held, that where the writ described the defendants as administrators of A, and the declaration is upon an account annexed, beginning, " The estate of A, debtor," and alleges that the defendants are indebted as such administrators, the plaintiff could not recover upon proving services rendered before the defendants' appointment, at the request of one.) In Blackstone Nat'l Bank vs. Lane, 80 Me., 165; s. c, 13 Atl. Rep., 688, it was held no misjoinder of counts to declare in one against the defendant individually and § 972.] Variance; and Amendment to Let in Evidence. 769 in tlie other against him as trustee, the last clause be- ing only descriptive. "Austin vs. Monroe, 47 iT. Y., 360. Yan Cott vs. Prentice, 104 N. Y., 45, aff'g 35 Hun, 317. Griswold vs. Watkins, 20 Hun (N. Y), 114. (Holding that if defendant is sued " as assignee" in bankruptcy, for a cause on which he cannot be charged in that ca- pacity, judgment in his favor should be affirmed, al- though if those words had been omitted he might have been personally charged). Contra, Maxwell vs. Harrison, 8 Ga., 61 ; s. c, 52 Am. Dec, 385. (Trover. So held, on the ground that trover will not lie against a trustee, as such. No one, as repre- sentative or fiduciary, can be guilty of a tort.) [ Contra,' Waldsmith's Heirs vs. Admrs. of Waldsmith, 2 Ohio, 156, 164, 165.] As to how far the designation of parties may be amended, so as truly to describe the real party, and in the capac- ity in which he is concerned, see Eeeder vs. Sayre, 70 N. Y., 180, aff'g 6 Hun, 562. (Amendment allowing plaintiffs to claim as surviving partners, instead of as tenants in common, does not change the cause of action.) Spooner vs. Del., Lackawanna & W. E. Co., 115 N. Y., 22, 30. (Amendment substituting name of infant instead of guardian ad litem as a party, allowable.) Eabb vs. Eogers, 67 Tex., 335 ; s. c, 3 South West. Rep., 303. (Amendment naming guardian as plaintiff instead of the infant, allowable.) Wolscheid vs. Thome, 76 Mich., 265 ; s. c, 43 North West. Rep., 12. (Adding allegations showing representative capacity, allowable.) McDonald vs. Ward, 57 Conn., 304. (Amendment striking out words which made defendant a party in his repre- sentative capacity.) s. P., Tighe vs. Pope, 16 Hun [N. Y.), 180. Otherwise where the amendment, to charge defendants individually, when sued in a representative cause of action, was asked after trial, to sustain a verdict for plaintiff. Van Cott vs. Prentice, 104 N. Y., 45. (The Court say : the amendment substituted a new and dif- ferent cause of action, and the defendants as individuals had been furnished with no opportunity to defend.) 770 Abbo-tt's Brief on the Pleadings. Evidence [§ 973. § 973. Fad implied. — The omission to allege specifi- cally a fact whioli is only implied from other facts alleged, may be cured by amendment at the trial. Thayer vs. Marsh, 75 K T., 340, aff g 11 Hun, 501. (Omis- sion to aver privity, in action on assumption clause.) § 974. Inherent power. — At Common Law, and irre- spective of any statutory authority, a Court of general jui'- isdiction has inherent power to allow a party to amend his pleading in order to cure a material variance, at any time before verdict found,^ wherever justice will be promoted thereby without injury to the adverse party ; but in every such case, if the opposite party requests it, the jury should be discharged, the adverse party allowed to amend his pleadings or to plead anew to the pleading so amended, and the cause be continued.^ This power extends to pleadings originally framed in another court and brought into the trial court by removal.' ' 1 All. New Pr. & F. 57, n. (3). Hatch vs. Centr. Nat. Bk., 78 N. Y., 487, overruling in ef- fect Robertson vs. Bobertson, 9 Daly ( .N. Y.), 44, dictum to the contrary. Travis vs. Peabody Ins. Co., 28 W. Va., 583; s. a, 16 Ins. L. J., 161. Knott vs. Taylor, 99 JH. C.,- 511; s. c, 6 South East. Rep., 788. Eberly vs. Moore, 24 Hoiv. {U. S.), 147. (Equity.) Neale vs. Neales, 9 Wall. (Z7. 8.), 1. (Equity; bills and answers.) The Charles Morgan, 115 U. S., 69; s. c, 29 Law. ed., 316; s. c, 5 Sup. Gt. Rep'r, 1172. (Admiralty.) Anonymous, 1 QaU. {U. S. C. Gt.), 22. (Criminal case.) ' Travis vs. Peabody Ins. Co., 28 W. Va., 583; s. c, 16 Ins. L. J., 161, and cas. cit. ' Lalleman vs. Eere, 18 All. N. G. {N. Y), 56; s. c, as Lat- teman vs. Fere, 11 Giv. Fro. B., 217. § 975. Not precluded ly stipulation to try issue. — ^A § 978.] Vabiancb and Amendment to Let in Evidence. "HI stipulation to try the case upon tte issue raised by the pleadings does not preclude an amendment 6i those plead- ings at the trial. Ballin vs. Dillaye, 37 N. Y., 35; s. c, 35 How. Pr. {N. Y.), 216. § 976. Lea/ve to amend does not supersede waiver of jury. — Even where trial by Jury has been waived, the allowance of an amendment by adding a count does not necessarily entitle the defendant to a trial by jury of the new issue. Bamberger vs. Terry, 103 U, S., 40, 43. (Action by re- ceiver for conversion; amendment adding allegation of conversion prior to plaintiff's appointment.) § 977. Bill of particula/rs. — A bill of particulars is amendable at the trial as if it were a part of the plead- ing,^ and it is in the discretion of the Court even to allow a credit admitted in it to be withdrawn.^ ' Melvin vs. Wood, 3 Abb. Ct. App. Dec. {N. Y.), 272; s. c, 3 Eeyes {N. Y.), 533. (Substitution of new bill allowed by referee.) Blunt vs. Cooke, 4 Mann. & Or., 458. (Insertion of addi- tional items, allowed by Court, pending reference.) s. p., Moses vs. Taylor, 6 Mach. {D. C), 255; s. c, 11 Cent. Eep., 724. ' Case vs. Pharis, 106 N. Y, 114; s. c, 7 Cent. Rep., 779; 12 North East. Rep., 431. § 978. Powers of United States Gowii. — The United States Circuit and District Courts, in addition to the powers of amendment conferred on them by U. S. E. S., ^48, have in civil causes (other than in equity and ad- miralty, and in rem for forfeiture) the powers of amend- ment in respect to pleadings and the forms and modes of 772 Abbott's Brief on Pleadings. Submission after [§ •979. proceeding conferred by the State law on the courts of record in the same State. Norton vs. Dover, 14 Fed. Bep., 106. s. p., Erstein vs. Eotliscliild, 22 Fed. Bep., 61. Townsend vs. Jemison, 7 How. {U. 8.), 706, 722. Bond vs. Dustin, 112 U. 8., 604. (Sustaining verdict though one count be defective.) [See Henderson vs. Louisville E. Co., 123 U. 8., 61. (Holding that U. S. Court allowing amendment may apply conditions or restrictions sanctioned by State practice.)] The United States Court may follow even the most liberal rule of amendment, if sanctioned by the State practice. West vs. Smith, 101 U. 8., 263. IV.— SUBMISSIOl^ AFTEE EVIDENCE TAKEN. [Including Motion for Nonsuit or Dismissal ; Motion to direct a verdict ; Requests for Instructions to the Jury ; and Bequests for Findings to be made by the Judge or Referee.] 1. Power and Duty of the Couet, 6. Swoen Dbniais and Effect op §§ 979^981. Omission, §§ 1020-1033. 2. Sufficiency and Consistency 7. Facts occurred pending Suit, OF THE Pleadings, AND of the §§ 1024-1036. Contentions upon the Bvi- 8. Conformity of Proofs to DENCB, §§ 983-990. Allegations, §§ 1037-1034. 3. Burden AND Failure of Proof, 9. Conformity of Findings to |§ 991-1001. THE Issue and Admissions, 4. Grounds of Relief OR Defence §§1035,1036. WAIVED by NOT PLEADING, 10. CONFORMITY OF RELIEF TO DB- §§ 1003-1017. MAND OB Judgment, §§ 1037- 5. Omission to Plead waived by 1055. , NOT objecting TO EVIDENCE, 11. AMENDMENT, § 1056. §§ 1018, 1019.. 1. PowEE ANB Duty oe the Cotjkt. §979. Pleadings read without being § 980. Defining the issues for the juiy. put in evidence. 981. State practice in U. S. Court. § 979. Pleadings read without being put in evidence. — ^Under the New Procedure the pleadings in the cause § 980.] Evidence Taken. Powek and Duty of Cotjet. 773 whicli form the issue on trial, are before the court and jury ; and may, without having been formally put in evi. dence, be read and commented upon for the purpose of defining the issue and shovying what is admitted, and therefore not within the issue. Todd vs. Bishop, 136 Mass., 386. Holmes vs. Jones, 121 N. T., 461 ; Tisdale vs. Del. & H. Canal Co., 116 id., 416. [These cases qualify the rule stated in the first editions of Civil Jury Brief, p. 69, § 11.] As to whether a plea or defence raising one issue is avail- able evidence as an admission under another issue, see Nudd vs. Thompson, 34 Gal., 39 ; s. p., Lyons vs. Ward, 124 Mass., 364, in the negative ; and §§ 643 and 458 ; and Civil Jury Brief, p. 67. § 980. Defining the issues for the jury. — A party has a right to have the jury instructed what are the issues upon the pleadings, and what is admitted therein, so far as necessary for their guidance.'' It is error to submit to the Jury to say whether a fact has been admitted by the pleadings,^ or to so instruct as to leave it to them to determine what has or what has not been admitted.^ ' McKinney vs. Hartman, 4 Iowa, 154. (Holding it error to refuse ; and disapproving the stating to them as a mere general rule of pleading that what is not denied is admitted, leaving it to them to apply it.) Porter vs. Knight, 63 Iowa, 365 ; s. c, 19 North West. Rep., 282 ; Bryan vs. Chicago, etc., Ey. Co., 63 loiua, 464 ; s. c, 19 North West. Rep., 295. (Holding it error to give the jury the pleadings for this purpose at least without clear instructions as to what the issues were.) 'Bond vs. Corbett, 2 Minn., 248. (Error to instruct the jury that plaintiff could recover the value of her ser- vices where a special contract set up in the answer was admitted by the reply.) ' Teiser vs. Brown, 6 Bush {Ky.), 190. (Holding it error to instruct the jury that " in so far as defendants' answer sets out the terms 6f the contract," and "in so far as it states the acts done by defendants in performance of 774 Abbott's Brief on Pleadings. Submission after [§ 981. said contract," it must be taken as true ; for this was leaving questions of pleading to the jury. The Court should inform them what facts are to be con- considered as true.) Dassler vs. Wisley, 32 Mo., 499. (Action for work and labor. Error to instruct, at plaintiff's request, " that all the material allegations in the plaintiff's petition^ not specifically denied by the defendant's answer, will, for the purposes of this action, be taken as true." The Court say : "It is proper for the Court to state the issues to the jury, but it is not proper to refer the jury to the pleadings to ascertain them.") § 981. State practice in U. 8. Oov/rt. — Under U. S. R. S., § 914, conforming the practice in the U. S. Circuit and District Courts m civil causes (other than in equity^ admiralty, and in rem for forfeiture), to the practice in the courts of record of the State in which they are sitting, — the Court cannot nonsuit for inappropriateness of the pleading to the cause of action, if the State Court practice allows a recovery on such facts under such a pleading. Taylor vs. Brigham, 3 Woods {U. S. C. Ct), ^11. (Objection that action should have been case and not trover, over- ruled because case would lie in the State court.) Sawin vs. Kenny, 93 U. S., 289. (Action on joint contract \ judgment against one of several defendants. State law followed.) s. P., Morgan vs. Eggers, 127 U. 8., 63. (Holding State law as to recovery against part of premises or part of de- fendants in ejectment applies in U. S. Court.) [Compare, per Hughes, J., in Baltimore & O. B. Co. . vs. Hamilton, 16 Fed. Bep., 181, refusing replevin because the State practice, and the Common Law did not allow it.] § 983. j Evidence Taken. Sufficibnct of Pleadings. 775 2. SuFFICrENCT AND CONSISTENCY OF THE PlEADINGS, AND OF THE CONTENTIONS UPON THE EVIDENCE. § 983. Dismissal for insufiBciency. § 987. Effect on the defence of plain- 983. Immaterial issues should not be tifE's statement of separate submitted. counts for same recovery. 984. Which cause of action, in am- 988. Denial and avoidance, higuous complaint. 989. Inconsistent defences. 985. Alternative ground for conclu- 990. SufHciency of defence not ad- sion of fact. mitted by not demurring. 986. Inconsistency in separate counts. § 982. Dismissal for insufficiency. — If a motion to disjniss the complaint for not stating facts sufficient to constitute a cause of action is not made until after the evidence is in, it should hot be granted if the cause of action has been proved, and defendant has not been sur- prised or prejudiced. Miller vs. White, 8 All. Pr. N. 8. {N. Y.), 46 ; s. c, less fully, 57 Barh. (N. Y.), 504 (rey'd, on another ground, in 50 N. Y., 137). Eector vs. Clark, 78 JV. Y., 21, rev'g 12 Hun (JV. Y.), 189. McGoldrick vs. Willets, 52 N. Y, 612. s. p., on appeal, Knapp vs. Simon, 96 N. Y., 284 ; s. c, 6 N. Y. Civ. Pro. R., 1, rev'g 49 N. Y. Super. Ct. {J. <& S.), 17. § 983. Immaterial issues should not he submitted. — A question of fact raised by the pleadings and evidence, M^hich whether found one way or the other does not in it- self aid the determination of the cause, should not be submitted to the jury.^ Nor should the instructions to the jury leave it to them to. discriminate between what is and what is not material.^ ' Cuthbertson vs. North Carolina Home Ins. Co., 96 Bo. Car., 480 ; s. c. 16 Ins. L. J., 465. (Action on fire policy : refusal to submit issues and evidence as to false repre- sentations and as to compliance with conditions, siis- tained.) 776 Abbott's Brief os Pleadings. Submission Aftee [§ 984. s. p., Lusk vs. Perkins, 48 Ark, 238 ; s. c, 2 South West. Rep., 847. " Endsley vs. Johns, 120 111, 469. (Error to instruct the jury they are to find for a party if the material part be proved ; holding, howeyer, that as all the representa- tions in question were material, the error was merely formal and harmless.) t § 984. WJiicJi cause of action, in ambiguous com- plaint. — If the Court, at the close of the evidence on a trial under an ambiguous complaint, rules that it must go to the Jury as an action only for a cause specified by the Court, admissions in the answer pertinent only to the other cause of action suggested in the complaint must be conformed to and construed by the evidence, and iiot made the ground of liability more extended than the proofs warrant. Von Latham vs. Eowan, 17 Abb. Pr. {N. Y.), 237 ; s. c, less fully, as Von Latham vs. Libby, 38 Barb. {N. Y.), 339. s. P., Leprell vs. Kleinschmidt, 112 N. Y, 364, 367 ; s. c, 21 K Y. State Bep., 30, rev'g 17 N. Y. State Rep., 231. (Holding that a complaint which contained the sub- stantial elements of a complaint in ejectment, but com- mingled with it allegations that the eaves of defendant's building extended over the strip of which plaintiff sought to recover possession, was, after answer and verdict, a sufficient complaint in ejectment, under the liberal rule established by the Code for the construc- tion of pleadings ; for even if the projection of eaves would not sustain the action, the appellate court should presume that entry and unlawful detention of property had been proved.) § 985. Alternative ground for conclusion of fact. — If objectio.n to pleading or evidence has not been season- ably taken, a party may properly be allowed to go to the jury for a recovery on a conclusion of fact which may be sustained on either of two inconsistent grounds alleged in the alternative, and in support of which there is evi- dence for the Jury. Both grounds may be submitted § 986.] Evidence Taken. Sufeioienct oe Pleadings. 777 to the jury witli instructions to find for the party if either is found in the affirmative. Everitt vs. Conklin, 90 JV. T., 645. Murray m. N. Y. Life Ins. Co., 96 N. Y., 614. s. p., Tarbell vs. Eoyal Exch. Shipping Co., 110 N. Y., 17. s. p., Norton vs. Dreyfuss, 106 JV. Y., 90, 95, rev'e 51 Super. a. {J. & 8.), 491. Chatfield vs. Simonson, 92 N. Y, 209. Jackson vs. Van Slyke, 52 N. Y, 645. (Holding it error to refuse to submit the case to the jury, and that the objection of inconsistency could not be started in the appellate court.) s. p., Turner vs. Yates, 16 Hoto. {U. 8.), 14, 25. (Incon- sistent lines of proof admitted under one allegation.) § 986. Inconsidency in sepai^ate counts. — Where plain- tiff alleges several alternative or concurrent grounds for the same recovery, and they are such as the statute regu- lating joinder of actions does not exclude from being joined, he ma}'' prevail on proof of either, though they are in legal theory inconsistent, if there is not necessarily an absolute inconsistency in point of fact. Goings vs. Patten, 1 Daly {K Y.), 168 ; s. c, 17 Aib. Pr. (JV. Y.), 339. (Dictum, that it is entirely consistent with the defence of an account stated, to plead also a copy of the account showing the items on which the party means to rely in event of failing to prove the account stated.) Williams vs. Freeman, 12 JV. Y. Civ. Pro. B., 334. (Com- plaint by master and part owner of vessel for his share of vessel's earnings, set forth a claim on an account stated, and also a cause for an accounting as to moneys received by defendant as joint owner. Held, error to dismiss merely for failure to prove the latter cause.) s. P., Straus vs. Heyenga, 5 N. Y 8tate Bep., 37. (Action alleging partnership, dissolution, and award of amount due from defendant partner to plaintiff. Also asking an accounting.) Krower vs. Eeynolds, 99 N. Y., 245, rev'g 19 Weehly Dig., 383. (Contract ; and judgment subsequently recovered on the contract. Held, that the fact that the judgment merged the contract was not decisive of the question 778 Abbott's Brief on Pleadings. Submission Aptek [§ 987. whether a recovery on the contract without proof of the judgment could be sustained.) {Compare Teel vs. Yost, 56 Super. Ct. (N. Y.), 456 ; s.c.,22 N. Y. State JRep., 415; 5 N. Y. Supp.,5. (Here the com- plaint set out in full a promissory note given in Penn- sylvania, and further alleged that the plaintiff entered judgment thereon in a Pennsylvania court and under Pennsylvania law ; that the plaintiff was the owner of the judgment, and that neither the note nor the judg- ment had been paid. Held, that there was but one cause of action, and that upon the judgment ; and to entitle plaintiff to recover, he must prove a valid judgment.)] § 987. Effect on the defence of plaintiff'' s statement of separate counts for same recovery. — ^Where tort and con- tract can be joined as separate grounds of recovery on the same transaction, tlie fact that a defence appropriate to one only is pleaded and sustained, does not prevent plaintiff from recovering upon the other. Where they cannot be joined, and plaintiff by his pleading has waived the tort, stating it only incidentally as ground for rescis- sion or for raising an implied contract, both counts are on contract, notwithstanding the allegations of tort ; and a defence sufficient for an action sounding in contract avails against both counts. Morse vs. Hutchins, 102 Mass., 439. § 988. Denial and avoidance. — It is the better opinion that under the New Procedure the right of a party to go to the jury on a defence in avoidance, in support of which he has given evidence, is not affected by the existence in a separate division of his answer, or reply, of the denial of the fact sought to be avoided ; for an avoidance no longer necessarily involves confession. Swift vs. Kingsley, 24 Barh. {N. T.), 541. (Nonsuit on the ground that an admission made in one defence was available against the others, is error. Each answer must stand by itself, as a complete defence, and the § 989.] Evidence Taken. . Sufficiency of Pleadings. 779 plaintiff must recover upon the whole record. Judg- ment reversed.) Lake Shore & M. S. Ky. Co. vs. Warren ( Wyom., 1885), 6 Pad/. Jiep., 724. (Action against carrier for trunk. Denial; and separate defence of tender of the trunk and readiness to deliver it. Held, error to instruct the jury that the latter defence admitted all but the amount of damages ; for the carrier might have come into pos- session by finding, after suit brought. Judgment there- fore reversed.) Tobin vs. Western Mut. Aid Soc, 72 lotva, 261 ; s. c, 33 North West. Rep., 663. For other authorities, see §§ 642, etc., 706, n. Compare, as to express admission : Sexton vs. Ehames, 13 Wise., 99. (Action for lands. Gen- eral denial ; and also a special answer admitting the alleged legal title.) Ehinehart vs. Whitehead, 64 Wise., 42 ; s. c.,24 North West. Rep., 401. {Dictum, that an express admission in an affirmative defence avails plaintiff, although there be a general denial. [Citing Sexton vs. Rhames, 13 Wise, 99 ; Hartwell vs. Page, 14 id., 49 ; Farrell vs. Hennesy, 21 Wise., 632.]) § 989. Inconsistent defences. — Under the New Pro- cedure a plaintiff is not entitled to judgment because defendant Las pleaded inconsistent defences. In sucli case defendant may elect on which defence he will rely, and conform his pleading to his choice. But such elec- tion does not deprive the plaintiff of the benefit of the inconsistent defence as evidence of an admission. Breunich vs. Weselman, 100 N. T., 354. {So held where both usury and tender were pleaded.) Ohatfield vs. Simonson, 92 N Y., 209. (A defendant is not precluded in an action on contract under a general denial from relying on plaintiff^s non-performance as bar to the action, although he has set up the facts show- ing plaintiff's violation of the contract as a separate defence and alleges a right of set-off.) Bruce vs. Burr, 67 N. Y., 237. (Action on contract. EeM, defendant might set up both a rescission of the contract and a breach of warranty. Motion to compel election properly denied.) Hamburger vs. Baker, 35 Hun {N. Y.), 456. (The old rule 780 Abbott's Brief on Pleadii^gs. Submissiost Aftek [§ 990. preventing a defendant from joining a plea in abate- ment with one in bar is no longer in force ; and where matters in abatement and bar are pleaded, the pleading of the latter will not waive the former.) Goodwin vs. Wertheimer, 99 N. Y., 149. (In an action to recover goods, defendant may join with his defence that he is a hona-fide holder, a defence that there has not been a sufficient demand.) § 990. Sufficiency of defence not admitted iy not de- murring. — At Common Law, going to trial on a frivolous plea without demurring to it, is not an admission that the plea if established by evidence is a defence, and does not justify instructing the jury that it is. United States vs. Dashiel, 4 WaU. (JJ. 8.), 182. (The Court say " under no system of pleading can the judge be re- quired to give an instruction contrary to law.") \_Oo'm'pare, for the rule in equity. Bean vs. Clark {Oirc. N. D. N. Y., 1887), 30 Fed. Rep., 225. Wallace, J., says : " Having taken issue upon the plea, the complainant cannot now assert that the facts alleged are not a good defence to the bill. Story Eq. PI., 697 ; Rhode Island vs. Massachusetts, 14 Pet. {U.S.), 210; Myers vs. Dorr, 13 Blatchf.{U. S. G. a.), 22; Bogardus vs. Trinity Church, 4 Paige {N. Y.), 178 ; Birdseye vs. Heilner, 26 Fed. Rep., 147. Equity rule 33, promulgated by the Supreme Court in 1842, declares that if upon an issue the facts stated in the plea be determined for the defendant, they shall ' avail him as far as in law and in equity they ought to avail him.' It may be that this rule was intended to relieve a complainant from the hardship of having his suit barred when the facts stated are determined in favor of defendant, although they would not be a de- fence. But the language is consistent with the meaning that if the plea extends to part only of the matters of the bill the suit is to be barred so far as the plea ex- tends ; and if this is the correct interpretation, the rule does not change the pre-existing practice. The effect of rule 33 has not been considered by the Supreme Court in any reported case ; and until that Court passes upon the question, this Court should adhere to the decisions in Myers vs. Dorr and Birdseye vs. Heilner."] 993.] EVIDBNCB TAKBIir. BUKDEN, AND FAILUEE OF T>EOOF. 781 3. BiTEDEK, AND FaILUEE OF PeOOF. § 991. General denial puts Ijurden on § 997. Omitted allegation supplied plaintiff. from adversary's pleading. 993. Amendment. 998. Burden to prove negative alle- 993. Failure to prove immaterial al- gation. legation. 999. Order of proof of avoidance of 994. — to prove proper but unneces- defence. sary allegation. 1000. Right of rebuttal. 995. Plaintiff need not prove his 1001. Admission of allegation of con- claim to the full extent. tract. 996. Indefinite or uncertain allega- tion. § 991. General denial puts burden on plaintiff. — A general denial imposes upon plaintiff the burden of prov- ing every fact essential to sustain a recovery. Lafayette, etc., E. E. Co. vs. Ehman, 30 Ind., 83 ; Adams Express Co. vs. Darnell, 31 id., 20. At Common Law the general issue varied in different ac- tions, and in many cases relieved plaintiff from proving some facts which, if they had been specially denied, he would have been required to prove. § 992. Amendment. — A defence which ought to be specially pleaded, but was not, should not be received under a general denial, and then sustained by amending the answer to conform to the proof; for this would " change substantially the claim or defence," and such amendment ought only to be allowed on application for leave to amend, and upon just terms. Carpenter vs. Goodwin, 4 Daly {N. Y.), 39. (Eeversing judgment for error in receiving such evidence.) Contra, as to power to amend before evidence, § 8 993. Failu/re to prove immaterial allegation. — A nonsuit cannot be ordered nor a verdict directed on ac- count of failure to prove an immaterial allegation. It is 782 Abbott's Beibf ok Pleadings. Submissiok Aptee [§ 994. enougli to prove ttose allegations that are essential to make out tlie cause of action or defence obviously in- tended on tlie face of the pleadings, without proving those vs^hich are superfluous, unless their insertion amounts to an unsuccessful attempt to state a different cause of action, and has thereby misled the adverse party to his prejudice.^ Failure to prove a fact expressly in issue on the pleadings does not impair the right of the party to have a verdict directed, if by reason of the admission of other facts alleged, the fact denied has become not essential.^ ' Oonauglity vs. Nichols, 42 N. Y., 83, 87. (Complaint al- leged consignment to defendants as factors, receipt and sale by defendants, balance due plaintiff, and refusal of defendants to pay on demand ; adding, " and have con- verted the same to their own use, to the damage of the said plaintiff in the sum," etc. Held, error to deny leave to plaintiff at close of evidence to amend by strik- ing out allegation of conversion, and to grant defend- ant's motion for nonsuit on ground that complaint was in tort and proof was of a contract. Judgment re- versed.) Bedell vs. Oarll, 33 N. Y., 581. (Legal action on promis- sory note by daughter and indorsee of payee, deceased, alleging indorsement and delivery by payee to plaintiff as a gift, and ownership of plaintiff, all of which was denied. Plaintiff proved note with ordinary indorse- ment, and gave no evidence as to gift. Held, not error to deny motion for judgment on ground of insufficiency of proof. Judgment affirmed.) " Eoberts vs. Graves, 4 N. Y. State Bep., 594. (Complaint on promissory note against maker alleged that it was made and delivered to plaintiffs, also that plaintiffs were partners. Former allegation was not denied, but partnership was denied. HM, an immaterial issue, and judgment reversed for error of court below in holding it material.) § 994. — to prove proper hut unnecessary allegation. — An allegation which, though proper, is presumed by the law to be true without proof, although properly inserted § 996.] Evidence Takbw. BtEDBN, and Failure of Proof. 783 in the complaint, need not be proved unless evidence to the contrary has been given. Cheraw, etc., E. E. Oo. vs. Broadnax, 109 Fa. St., 432 ; s. c, 2 Eastern Rep., 257, 259. (Action on general average bond. The Court (Claek, J.) say : " The averment in the plaintiff's declaration that the schooner was stanch and seaworthy was, under the implication arising out of the contract of affreightment, a proper one ; perhaps it was not essential, but it did not require any proof in the first instance in support of it. There are affirmative averments, deemed essential in formal pleading, which stand upon the presumption of their truth until that presumption is rebutted, for example, in an action for defamation the good repute of the plaintiff is always averred, but need not be proved until it is attacked.") § 995. Plaintiff need not prove his claim to tlie fall extent. — Plaintiff need not prove the entire claim alleged in his pleading. It is sufficient if the substance of the issue be proved. ' Chitt. PL, 16 Am. ed., 401, 408. [As to special injuries, see §§ 826, etc.. Damages.] Van Eensselaer's Executors vs. Gallup, 5 Den. (N. Y.), 454. In an action against the assignee of a lessee for non-payment of rent, the declaration alleged that all the estate of the lessee in the premises leased had been assigned to the defendant. The evidence showed that he was assignee of a part only of the premises. Held, the variance was not fatal, though Ihe quantity of land held by the defendant might be material on the question of damages. By showing that the defendant was as- signee of part of the premises the substance of the issue was proved.) Louisville, N. A. & G. E. Co. vs. Shires, 108 III 617. In a suit for personal injuries, where plaintiff alleged several independent acts of negligence, an instruction that plaintiff must prove every material allegation of his declaration was held properly refused. Plaintiff was under obligation to prove only enough to show a good cause of action.) § 996. Indefinite or uncertain allegation. — Indefinite- ness and uncertainty in an allegation of a material fact is 7-84 Abbott's Beiep on Pleadings. Submission Aftee [§ 997. not ground for excluding the question of fact from the jury if evidence of the fact has been given vpithout ob- jection. Liverpool & Lend. Ins. Co. vs. Gunther, 116 U. S., 115, 127. (Action on fire policy. Obscure allegation of breach of condition. Held, error to withdraw from the jury the evidence of the breach, after the fact had been the subject of evidence on both sides, and the defend- ant had moved for a verdict on that ground, thus giving plaintiff an opportunity to give further evidence, or re- quire amendment of the answer. Matthews, J., says : " We think the matter ought to have been either sub- mitted to the jury or put in shape for such submission, if the rights of the adverse party required any change in the pleadings, or opportunity for the production of other evidence. By the course actually taken the de- fendant was deprived of the benefit of a defence, legiti- mately arising upon the evidence actually in the case, admitted without objection ; and this, we think, was contrary to the practice established under the laws of New York, as appears from the cases cited of N. Y. Cent. Ins. Co. vs. Nat. Protection Ins. Co., 14 iV. Y., 85 ; Williams vs. Mech. & Traders' Fire Ins. Co., 54 N. Y., 577 ; and Williams vs. People's Fire Ins. Co., 57 N. T. 274.") _ [Citing also JV. Y. Code Civ. Pro., §§ 539, 540, as to variance.] Expressly taking issue upon an allegation by replication and going to trial admits it to be sufficiently explicit for the purposes of the trial, however imperfect it may be. Wooster vs. Muser, 20 Fed. Hep., 162. (Infringement of patent : answer denying information as to infringement, and denying damages, cannot be objected to as insuffi- cient after evidence taken.) [Citing Young vs. Grundy, 6 Cranch {U. S.), 51 ; Story Eg. PL, § 877.] § 997. Omitted allegations sullied from adversary's pleading. — If an essential allegation omitted from the complaint is supplied in the ansv^^er, though coupled there vpith matter in avoidance, and if evidence is given v?ith- out objection upon the theory that the question is in issue, and the jury find upon it, the omission of the alle- gation is cured.^ But plaintiff cannot recover on a wholly § 998.] Etidbkce Takek. Bukdbn, and Pailttre of Proof. 785 different cause of action from that whidi he has alleged, although it is disclosed by defendant's pleading.* • Schenck vs. Hartford Fire Ins. Co., 71 Cal, 28; s. c, 11 Pacif. Hep., 807. (Action on fire policy without alleging the application. Answer setting out the application.and alleging a breach. FooTE, C, said : " By the choice of the defendant, the fact, which was essential to the plaintiff's recovery, which had been omitted to be pleaded in his complaint, was so pleaded in the defendant's answer with a view to defeat the plaintiff's recovery, that a jury was enabled, upon evidence before it, to pass upon the issue raised and tendered by the defendant. If the defendant has been beaten upon its own chosen ground of battle, which but for its pleading could not have been there fought,- we cannot see any good reason to reverse the judgment.) ' Brandt vs. Shepard, 39 Minn., 454; s.c, 40 Norfh West Rejp., 521. (The complaint charged that the two defendants as partners had received certain money. The separate answer of one of the defendants contained a general denial, and also contained allegations of certain trans- actions between him individually and the plaintiff, and growing out of which it was admitted that a certain sum was due the plaintiff. TMd, the plaintiff could not recover this amount, as it formed no part of the cause of action set forth in the Complaint, and the Court below did not err in dismissing the action for want of evidence, after the plaintiff had rested.) [<7ompare Cook vs. Smith, 54 Iowa, 636. Action for work and labor for a fixed sum ; the answer set up that work was to be paid for by a certain commission on its value. EM, that plaintiff, if entitled, might recover on the contract as alleged by defendant.] § 998. Burden to prove negatvoe allegation. — If issue has been taken on a material allegation, the party who made the allegation is not excused from proving it by reason of its being a negative allegation.' But plaintiff need not prove an unnecessary negative allegation of what, if affirmatively established, would be a matter of defence in avoidance of his cause of action.^ ISTor is defendant required to prove a negative allegatioa, 786 Abbott's Bkief on Pleadings. Submission Aetek [§ S99. whicli merely puts in issue a material allegation of the plaintiff." 'Eoberts vs. Chittenden, 88 N. ¥., 33. (Action against carrier for non-delivery ; plaintiff must give some evi- dence of non-delivery.) [Compare Uiv. Jury Brief, p. 85.] ' Andrews vs. MoUer, 37 Hun (JV. Y.), 480. (Unnecessary allegation of conversion. The previous decision to the contrary in the same case in 20 JV. Y. Weekly Dig., 377, is unsound, and must be deemed overruled.) Douglas vs. Hennessy, 15 B. I., 281 ; s. c, 10 Atl. Bep., 583 ; 5 New Eng., 94. (Action on a penal bond for the performance of a special contract. Held, the obligation of the defendant being defeasible by the performance of a condition on his part, the burden is on defendant to prove it, even though plaintiff has unnecessarily alleged non-performance of the condition.) ' Newton vs. Newton, 77 Tex., 508 ; s. c, 14 Soutli West. Eep., 157. (Legatee against maker of a note. Held,^ji.oi er- ror to refuse to charge that a sworn plea denying con- sideration throws burden of proof on plaintiff, under Eev. St. Tex., arts. 1265, 4488. The sworn plea did not shift the burden of proof, but merely put the consider- ation in issue.) § 999. Order of proof of a'doidcmce of defence. — It is in the discretion of the Court to allow plaintiff to give evidence, as a part of his original case, of facts constitut- ing an avoidance of a defence pleaded by defendant, even though plaintiff has not pleaded such facts.^ It is the better opinion that where plaintiff has pleaded such facts, they are to be regarded as made ma- terial as a part of his original case if defendant has pleaded the anticipated defence.^ 'Baylis vs. Cockcroft, 81 N.T., 363. Hadcock vs. O'Eourke, 6 N. T. Sup., 549. " See also § 127.* * In a notem35 4SJ. N. 0. (N. T.), 130, I have collected the cases mole luUy than space allows here. §1001. J Evidence Taken. Grounds not Pleajoed. 787 § 1000. Right of rebuttal. — If a party who might rely on a concession presented by an allegation or admis- sion in his adversary's pleading does not claim to do so, but gives evidence instead thereof, it is not error to re- ceive rebutting evidence on the point from the adverse party, although it controverts his own concession. Tucker m. Ely, 20 N. Y. Weekly Dig., 66. (Action for value of services. The Court say, that as plaintiff did not choose to rest his claim as to the value of his ser- vices upon the ground that it was admitted by not de- nying, but gave evidence on the question, defendant ought to have been permitted to rebut.) § 1001. Admission of allegation of contract. — If a contract is fully pleaded, and there is no denial as to it, not only its existence is admitted, but also its binding effect, if no infirmity appears on its face, nor in the com- plaint in which it is set forth, nor in new matter in the answer. Wiltsie vs. Village of Greenbush, 4 N. Y. State Rep., 814. (Holding that therefore an objection that plaintiff failed to prove its validity was unavailing.) s. P., Schreyer vs. Mayor, etc., of N. Y., 39 iT. Y. Super. a. {J. (& S.), 1. . 4. What Geounds of Belief ok Defence waived by NOT Pleading-. [See also §§ 659-661.J g 1003. Estoppel : defendant's waiver § 1008. Estoppel proved may avail, by not pleading. 1009. Equitable regard to estoppel. 1003. PlalntifE's waiver of estoppel 1010. Illegality when available. by not pleading when there 1011. Variance. was opportunity. 1013. Laches, avails though not 1004. What is "opportunity to plead" pleaded. at Common Law. 1013. Statute of Frauds. 1005. The same— under New Proce- 1014. Proper plaintiff. (Jure. 1015. Infancy of plaintiff. 1006. Waiver of conclusiveness of 1016. Subrogation. technical estoppel. 1017. Rebuttal of cause of action 1007. Estoppel proved by both par- proved but not alleged. ties. 788 Abbott's Brief on Pleadings. Submission After [§ 1003. §1002. Estoppel: defendants waiver by not pleading. — At Common Law, and under the New Procedure, if plaintiff has pleaded the principal fact in such manner that defendant by pleading a record or specialty could have shown an effectual bar,^ defendant, if he has not so pleaded it as an estoppel, but has pleaded instead to the principal fact, has waived the estoppel ; and if the matter which might have raised the estoppel has been proven, it is not conclusive, but only evidence for the Jury.^ * That he may always do so in case of technical estoppel, see § 875. For the conflict of authority as to Equita- ble estoppel, see §§ 878-881. ' Trevivan vs. Lawrance, 1 Scdk., 276. Matthew vs. Osborne, 13 C. B. (J. Scott, 4), 919. s. P., Doe vs. Wright, 10 Adol. dt K, 763. Elliott vs. Eslava, 3 Ala., 568. Burdit vs. Burdit, 2 A. K. Marsh. (Ky.), 143. Lord vs. Bigelow, 8 Vt., 445, 461. (Estoppel by deed.) Contra, compare Man vs. Drexel, 2 Pa. St., 202; Smith vs. Elliott, 9 Barr {Fa. St.), 345 ; Hall vs. Haun's Heirs, 5 Dana {Ky.), 56. § 1003. Plaintiff's waiver of estoppel hy nx)t pleading wTieti there was opporttmity. — At Common Law, and in those Jurisdictions where under the New Procedure a plaintiff' may interpose a replication or reply to new mat- ter not constituting a counterclaim, the same rule applies against a plaintiff if the defendant has so pleaded the principal fact, and plaintiff has not availed himself of the opportunity to reply the estoppel. Kinnersley vs. Orpe, 2 Doug. 517. (Trespass: plaintiff proved a former judgment. HM, error to direct verdict as if the judgment were conclusive; for it was not pleaded.) So even where defendant pleads a former recovery in bar plaintiff cannot use it as an estoppel unless he replies that it is. Thus in Brinsmaid vs. Mayo, 9 Vt., 31, an administrator sued for use and occupation, and defend- ant pleaded that plaintiff's intestate had no title; and also that plaintiff had already recovered the land in eject- § 1004.] Evidence Taken. Grounds not Pleaded. 789 ment, witli damages for rents and profits. Plaintiff replied that the recovery was not for the use and occu- pation profits now sued for. Held, that as he did not plead the former recovery as estopping defendant from denying his intestate's title, he could not have the benefit of such estoppel. But see §§ 875-881, 'Estoppel. § 1004. What is " opportunity to plead'''' at Goimnon Law. — At Common Law the declaration could not antici- pate and avoid a defence : hence the plaintiff never pleaded an estoppel unless defendant first alleged the principal fact ; and then plaiutifE replied the estoppel, not for the purpose of putting the adjudication or writing in evidence on the trial of the principal fact but for the purpose of getting the allegation of that fact struck out of the record on the ground that defendant was estopped to plead it. Hence the phrase " opportunity to plead" an estoppel means that the adversary has first alleged the fact he is estopped to plead in such manner that the party relying on the adjudication, etc., can in the ordinary course of pleading, respond by setting up the adjudication as show- ing that he is estopped to plead such fact. Thus if defendant's plea is the general issue,^ even though accompanied with notice of special matter,^ plain- tiff has no opportunity to plead an estoppel. To give plaintiff opportunity, defendant's plea must be sufficiently certain in respect to the fact, that a replica- tion setting up the adjudication would as matter of law necessarily show an estoppel.^ ' Isaacs vs. Clark, 12 Vt, 692. {Assumpsit for use and oc- cupation. Defendant pleaded general issue. Former iudgment in evidence held conclusive, because no op- portunity to reply it to the general issue.l^ ° Perkins m. Walker, 19 Vt, 144. Slander. Plea general issue, with notice of justification by evidence of truth of 790 Abbott's Bkib]? on pLBADiifss. Submission Aftee [§ 1005, words spoken. Held, to give plaintiff no " opportunity" to reply estoppel against proving their truth.) Sprague vs. Waite, 19 Pick. {Mass.), 456. (Trespass: gen- eral issue: and statement of special matter filed. _ Hdd,. that as special replications were abolished, plaintiff had no opportunity to plead a former adjudication; and be- ing proved, it was conclusive.) ° Thus if in trespass defendant pleads title in a third person under whom he claims, but without showing at what time such title accrued or was held, plaintiff has nO' "opportunity" to plead an estoppel by adjudication agaiQst the third person's claim of title ; for lack of title, at the time of the adjudication and theretofore, would not negative title at a later time, because it might hav& been acquired since. Shelton vs. Alcox, 11 Conn., 240. § 1005. The same — under New Procedure. — In those jurisdictions where the usual Code rule is in force, that new matter not set up a as counterclaim is in issue with- out reply, — if defendant has pleaded the principal fact as new matter in defence, plaintiff has no " opportunity" to reply ; and the matter of estoppel given in evidence with- out being pleaded goes to the Jury, with instructions that if they find it established it is conclusive against the de- fendant on the point in question. Common practice. See also Krekeler vs. Bitter, 62 1^. Z„ 372. § 1006. Waiver of conclusiveness of technical estoppeL —If an estoppel has not been pleaded, and, when proved, no objection is made to going into evidence on the prin- cipal fact, the conclusiveness of the estoppel is waived. Hanson vs. Buckner's Execr., 4 Dana {Ky.), 251. {So hM of a technical estoppel by deed; because estoppels are not favored, should not be allowed in doubtful cases, and,, to be made available, must be taken advantage of in due time and in a legitimate mode, — i. e., by demurrer, where the estoppel appears in the record; by pleading §1009.] Evidence Takes-. Grounds not Pleaded. 791 it specially wlien it does not, and by objecting to evi- dence when offered, where the party is estopped from proving the fact, — otherwise the estoppel is waived.) § 1007. Estoppel proved ly loth parties. — If matter raising an estoppel is shown by the combined evidence of both parties, the estoppel may be taken advantage of by one of them although neither has pleaded it. Alderson vs. Marshall, 7 Mont., 288; s. c, 16 Pacif. Bep., 576. (Ejectment.) [This was apparently an estoppel in pais; and at Common Law it was not necessary that such an estoppel be pleaded.] § 1008. Estoppel proved may avail. — Where the falsity of a representation made by plaintiff, on a point the truth of which is material to the defendant's case, is first brought out by evidence which is properly received under the is- sues, and which shows facts which estop plaintiff from taking advantage of its falsity, it is error not to give effect to the estoppel. Bank vs. Flour Co., 41 Ohio St., 552; s. c, 13 Ginn. Weekly L. Bull, 368, 372. See authorities on Evidence of equitable estoppel, §§ 878, etc. Contra, Eikenberry vs. Edwards, 67 Iowa, 14; s. c, 24 JV^orth West. Bep., 570. (Action on note: defence forgery. Evi- dence that defendant requested plaintiff to sue upon it, not available as an estoppel, because not pleaded. It was here held in effect that a defendantwho allows evi- dence of facts which are admissible under the issues to be received without objection, does not thereby enable the party adducing such evidence to claim that they estop him from his defence, if the estoppel was not pleaded.) § 1009. Equitable regard to estoppel. — The rules against giving effect to an equitable estoppel which has not been pleaded are necessarily subject to this qualifi- cation — that a Court administering equitable principles 792 Abbott's Brief on Pleadik'gs. Submissioit Aetee [§ 1010. is not bound to give affirmative relief to a party who is net equitably entitled to it on the evidence. § 1010. Illegality when available. — Under the New Procedure, if the contract alleged and proved is not in itself illegal, plaintiff may recover, notwithstanding it appears by his own evidence,^ or by evidence of the de- fendant ^ properly introduced for other purposes,^ that the contract arose out of an illegal transaction or was made for an illegal purpose.^ It is the better opinion, however, that where the con- tract itself is illegal, whether such illegality appear by plaintiff's own allegation or proof,° or by evidence intro- duced by defendant under a denial, in order to show, what the true contract was,® plaintiff cannot recover, although illegality has not been pleaded as a defence. ' TuthiU m. Roberts, 11 N. Y. Weekly Dig., 35. Fenwick vs. Laycock, 1 G. & D., 27 ; s. c, 1 Q. B., 414 ; Clutterbuck vs. Coffin, 1 Doiol. {JST. S.), 479. [ Contra, Coppell vs. Hall, 7 Wall. ( U. S.), 542. (Holding, in case of violation of laws against commercial intercourse with insurrectionary territory, that there can be no •waiver. The defence is allowed, not for the sake of the defendant, but of the law itself. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the cause. Judg- ment reversed.) s. p., Oscanyan vs. Arms Co., 103 U. 8., 261. (Corrupt public contracts : dismissal on plain- tiff's opening.) Followed in Lee vs. Johnson, 116 U. S., 48.] " Honegger vs. Wettstein, 13 Abb. N. C. {N. Y.), 393 ; s. c, 94 JSf. Y., 252. ' Codd vs. Eathbone, 19 JV. Y., 37. Followed in TuthiU vs. Eoberts, 11 N. Y. Weekly Dig., 35 ; citing also 54 N. Y, 577. * Bradford vs. Tinkham, 6 Gray (Mass.), 494. (Suit on check, shown to have been given for liquors.) , Musser vs. Adler, 86 Mo., 445. (Attorney's fees for ser- vices which were against public policy.) s. p., Cummins vs-. Barkalow, 1 Abb. Ot. of App. Dec. {N. Y.), 479 ; Potts vs. Sparrow, 1 Bing. N. C, 594 ; s. c, § 1013.] EviDBl«rCE TAKE3Sr. G-ROUNDS NOT PLEADED. 793 3 Dowl., 630 ; Goodwin vs. Mass. Miit. Life Ins. Co., 73 N. Z, 48. (Wager policy.) Haywood vs. Jones, 10 Hun {N. Y.), 500. (Usury not pleaded, not available against an assignee suing on the note.) Marie vs. Garrison, 13 Abb. N. C. {N. Y.), 328, n. (Ille- gality in purchase of railroad at foreclosure.) Stoddart ^;s. Key, 62 How. Pr. {N. Y.), 137. (Illegal use of pretended partnership name in making the contract.) Vischer vs. Bagg, 21 N. Y. Weekly Dig., 399. (Wager contract in stock-brokage.) Martin vs. Smith, 4 Bifig. N. C, 436 ; s. c, 6 Doicl, 639. (Wager on horse-race.) Eeich vs. Bolch, 68 Iowa, 526 ; s. c.,27 North West. Rep., 507. (Work and labor on Sunday.) 'Gary vs. Western Union Tel. Cj., 20 Abb. JSf. C. (N. Y.), 333. McKee vs. Cheney, 52 How. Pr. (N. Y.), 144. Handy vs. St. Paul Globe Pub. Co., 41 Minn., 188. ' See § 813. In Milbank vs. Jones, 28 N. Y. State Rep., 868 ; s. c, 5 N. Y. Supp., 914, the complaint alleged the existence of a trust : the answer was a general denial. SEDawiCK, Ch. J., was of opinion that under an allegation of a trust intended to let in evidence to prove the existence of it, a denial let in evidence showing that no such trust could in fact exist. Feeedman, J., concurred in the result, because plaintiffs' evidence showed the ille- gality, but was of opinion that otherwise defendant, not having pleaded illegality, could not have availed himself of that defence. § 1011. Variance. — If illegality is pleaded, a different violation of law from that specified, althougli of the same essential nature, cannot avail. Eice vs. Enwright, 119 Mass., 187. (Action for _ rent : allegation that plaintiff knowingly let the premises to be used for illegal sale, etc., of liquor, not sustained by proof of knowingly permitting such use, after letting.) § 1012. Laches, avails though not pleaded. — Laches in delayino' to sue, when it amounts to a defence, is avail- able in Equity,^ and under the New Procedure,* although not alleged or objected to in the answer. 794 Abbott's Bkief on Pleadings. Submission After [§ 1013. ' SulUvan vs. Portland & K. E. Co., 94 U. S., 806 (bill in equity); s. p., Credit Co. m. Arkansas Cent. E. Co., 15 Fed. Hep., 46 ; Pratt vs. California Min. Co., 24 id., 869. [Compare Hall vs. FuUerton, 69 III, 448, laying down the contrary rule for all cases except where the bill attempts to excuse delay. To same effect, School Trustees vs. Wright, 12 id., 432.] ' Kline vs. Vogel, 90 Mo., 239. Costello vs. Mead, 55 How. Fr. {N. Y.), 356. § 1013. Statute of frauds. — A defendant who. has de- nied the making of the contract alleged can avail himself of the invalidity of the contract under the statute of frauds, even though he did not object to the admission of the evidence of such contract. The statute need not be pleaded unless a contract is admitted. Trapnall vs. Brown, 19 Ark, 39 ; Wynn vs. Garland, id., 23. Durant vs. Eogers, 71 III., 121. (In equity.) [Contra, Warren vs. Dickson, 27 III., 115 ; and Chicago & W. Coal Co. vs. Liddell, 69 id., 639 (assumpsit) ; and Mc- Clure vs. Otrich, 118 lU., 320; s. c, 8 North Fast. Sep., 784, 6 West Hep., 65.] Billingslea vs. Ward, 33 Md., 48. Eeid vs. Stevens, 120 Mass., 209. Fontaiae vs. Bush, 40 Minn., 141 ; s. 0., 41 JVorth West. Bep., 465. Springer vs. Kleinsorge, 83 Mo., 152, and cas. cit. Duffy vs. O'Donovan, 46 N. Y., 226 ; Alger vs. Johnson, 6 N. Y. Supm. a. {T. & C), 632; mem. of s. c, 4 Hun {N. Y.), 412 ; Gibbs vs. Nash, 4 Barb. (N. Y.), 449 ; On- tario B'k vs. Boot, 3 Paige [N. Y.), 478. Poag vs. Sandifer, 5 Bich. (S. C.) Eq., 170. Chickering vs. Brooks, 61 Vt., 554 ; s. c, 18 Atl. Bep., 144, 146. Whiting vs. Gould, 2 Wise. 552, 594. Eastwood vs. Kenyon, 11 Adol. & E., 438. [Cordra, Bailey vs. Irwin, 72 Ala., 505.] In Maine, a defendant who has not pleaded the statute, cannot object on instructions unless he objected to the evidence. Lawrence vs. Chase, 54 Me., 196 ; — in which case he can : Par well vs. Tillson, 76 id., 227. § 1014. Proper plaintiff . — In Equity, and in equity § 101?.] Evidence Takb^jt. Gkounds not Pleaded. 795 cases under the New Procedure, if, when the cause is tried and Judgment asked, the proper plaintiff is before the Court, in the proper capacity, it is no objection that the action was not commenced in his name if the cause of action and the interest represented are the same. Merwin vs. Eichardson, 52 Conn., 223, 234. (Suit com- menced by beneficiaries on the refusal of the trustee to sue ; but order making him plaintiff subsequently obtained.) s. p., Haddon vs. Lundy, 59 N. Y., 320. § 1015. Infancy of plaintiff. — Under the New Pro- cedure which allows suit on a cause of action accrued to an infant to be brought in the infant's name, but requires appointment of a guardian ad litem, plaintiff's omission to prosecute by guardian is not jurisdictional, but a mere irregularity, which is waived unless set up in the answer, and is no cause for dismissing the complaint at the trial, for the Court may appoint nunc pro tunc. Kima vs. Eossie Iron Works, 47 Hun {N. T.), 153. [Cit- ing Smart vs. Haring, 14 Hun {N. Y.), 276 ; Sims vs. N. Y. College of Dentistry, 35 id., 344, and disapproving Imhoff ^-s. Wurtz, 9 JST. Y. Civ. Pro. H., 48.] The same rule was held under the old Code. Eutter vs. Puck- hofer, 9 Bosw. {N. Y.), 638 ; Parks vs. Parks, 19 Abb. Pr. (N. Y), 161 ; Treadwell vs. Bruder, 3 E. D. Smith {W. Y.), 596 ; 1 Wait's Pr., 486. S. p.. Under the English rules of pleading, 1 CMtt. PI., 16 Am. ed., 554. § 1016. Subrogation. — Under an answer in an equi- table action, setting up a right prior to that of plaintiff, the right being such that plaintiff is entitled to be sub- rogated thereto, plaintiff may, without reply, claim the right to subrogation at the trial. Clark vs. Mackin, 95 N. Y., 346, 352. (Foreclosure.) 8 1017. Rebuttal of cause of action proved hut not 796 Abbott's Bbibf on Pleadings. Submission Aftek [§ 1018. alleged. — If evidence admitted, ttougli without objection, to prove tlie cause of action alleged, fails to establish it, but establishes a different cause of action, it is error to give judgment upon such different cause of action without allowing the defendant the benefit of any defence shown by the evidence, although such defence was not pleaded. Arnold us. Angell, 62 i7. Z., 508 ; rev'gSSiT. Y. Super. Gt. {J. dt 8.), 27. (Action to dissolve partnership and for accounting ; proof of loan at excessive rate of interest. HeM, error to give judgment for the loan, disregarding usury because not pleaded. Chuech, Ch. J., says : " The defendant liad no opportunity to plead it. An answer setting up usury would have been improper in the action brought. It would have constituted no defence to that action. If the action was to be tried upon the evidence, in disregard of the pleadings, the defendant shoiild have had the benefit of any defence which the evidence disclosed. It would be manifestly unjust to permit a plaintiff to secure the benefit of a new cause of action not embraced in the pleadings, and refuse a defendant the corresponding benefit of a de- fence not thus disclosed.") 5. Omission to Plead Waived by not Ob.jeotin& to Evidence. § 1018. Necessity of obiection.> § 1019. Evidence admissible on several grounds. § 1018. JSTecessity of ohjeotion. — Whether failure to object to evidence when offered, or to move to strike it out as soon as its incompetency is disclosed, waives the objection, so as to preclude from insisting that it cannot be considered in instructions or findings, compare — Affirmative— GQlrvok vs. Swinburne, 105 N. Y., 503. (Special damages.) Flaherty vs. Miller, 4 N. Y. Supp., 618 ; s. c, 23 N. T. /State Bep., 91. (Waiver of a stipulation in a contract.) § 1019.] Evidence Taken. Omission to Plead Waived. 797 Hubbard vs. Russell, 24 Barh., N. Y., 404; Ward vs. Forrest, 20 How. Pr. {N. Y.), 465. S. P., Coster vs. Mayor, etc., of Albany, 43 N. Y., 399, rev'g in effect 52 Barb. {N. Y.), 276 ; Bryaa vs. Baldwin, 52 N. Y, 232, aff'g 7 Lans. {N. Y.), 174 ; Peck vs. Good- berlett, 109 JV. Z, 180; Knapp vs. Simon, 96 K Y., 284 ; s. c, 6 iV; r. Civ. Pro. P., 1, 11, rev'g 49 iV. Y. Super. Ct. {J. & 8.), 17 ; Hutchinson vs. Market Bank of Troy, 48 Barb. {K Y.), 302 ; Schlussel vs. Willett, 34 id., 615 ; Eogers vs. Millard, 44 Joiva, 466. Negative — HoUister vs. Engleliart, 11 Hun {N. Y), 446 ; Wyckoff vs. Taylor, 13 Daly {N. Y.), 564; s. c, 1 iV. Y. State Rep., 612. Hamilton vs. N. T. Central E. E. Co., 51 W. Y., 100. (Omission to object to the introduction of evidence on the ground that it is irrelevant and immaterial is not a concession that it is competent. The Court say : " Counsel may deem certain evidence offered entirely irrelevant and immaterial, and therefore harmless, and for that reason raise no objection to its introduction, and thus avoid an exception, assuming . . . that, [the evidence] being in, it was the duty of the Court and jury to give it whatever effect it ought to have in the case.") See also §§ 802, etc. A variance of proof from the pleading, if no objection is taken at the trial, is waived if the case be one in which the trial court might have allowed an amendment had objection been made. Railroad Co. vs. Lindsay, 4 WaU. {u. s.), mo, &m. § 1019. Hkidence admissible on several grounds. Omission to object to the reception of evidence of matter not pleaded is not a waiver of the right to object to al- lowing instructions, or a finding thereon, if the evidence was admissible for any other purpose. Arnold vs. Angell, 62 N. Y, 508 ; rev'g 38 N. Y. Super. a. (J. & S.), 27. , ^ -, . -c- T ^ r. Williams vs. Mechanics and Traders' Fire Ins. Co., 54 N. Y., 577. 798 Abbott's Bkief on Pleadings. Submission- Aftek [§ 1030= 6. Sworn Denials and Effect of Omission. [The effect oi statutes and rules of court requiring verified denials of written instruments on particular facts, as modify- ing the issue, is tinder §§ 615, 636, Defining the Issues. The actual production of evidence is under §§ 861, 871, Eeception OE Evidence.] § 1020. Document denied under oath. § 1023. Conclusive admission. 1021. Sworn denial of instrument 1023. Statutory admission must con- not evidence. trol verdict and findings. § 1020. Document denied under oath. — Under statutes requiring a sworn denial of a written instrument whicli has been pleaded, in order to keep upon the pleader the burden of proving execution/ — if a sworn denial has been interposed, the pleader does not discharge himself of the burden of proof by making a prima facie case which the Judge holds sufficient to let the instrument in as evidence ; but the burden remains upon him ; and it is proper to instruct the jury that the burden is upon him to establish the instrument upon the whole evi- dence.^ But for this purpose a preponderance of evi- dence is sufficient.^ The rule as to the requisite cogency of proof is. not altered by the oath ; and it is error to instruct the ]ury that the party who pleaded the instrument must prove the sworn denial false.* ' Eor the statutes, see § 615, p. 507, etc. " Carver vs. Carver, 97 Iind., 497. Farmers and Merchants' Bank m. Young, 36 Iowa, 44. s. p., Huddleston vs. Ooyle, 21 La. Ann., 148. 'Wallace vs. Wallace, 8 HI. A-pp., 69. (Holding it error to instruct that there must be proof beyond a reasonable doubt by reason of a charge of forgery being involved.) ' Patrick vs. Carr, 50 Miss., 199. § 1023.] EviDEKCE Takbk. Omission of Swoen Denial. 799 § 1021. Sworn denial of instrument not evidence. — Under the New Procedure or Common-law practice, if a sworn plea or answer, or an affidavit denying execution of a written instrument, interposed under the statute, forms part of the issue and has not been put in evidence, it is not error to instruct the jury that it is not in evidence, and that they have no right to consider it in determining the question of execution. Hunter vs. Harris, 29 lU. App., 200, 205. § 1022. Conclusive admission. — In those jurisdictions where the effect of omission to interpose a verified denial is to admit the execution of the instrument,^ it is proper to instruct the jury that the admission is controlling upon them.^ ' See table on p. 507. " Clinton Nat. Bank vs. Terry, 30 Iowa, 85. Jenkinson vs. Monroe, 71 Mich., 630 ; s. c, 39 North West, 854. § 1023. Statutory admission must control verdict and findings. — If the execution of an instrument as pleaded has been admitted by failure to comply with a statute re- quiring denial to be under oath, it is error to leave the question to the jury, or to find the terms different from those alleged and admitted,^ unless the admission has been waived.^ ' Kelly vs. Kelly, 12 Tex., 452. " Allison 175. Hubbell, 17 Irid., 559. (Waiver, by agreement of counsel, after general denial, that defendant might " give in evidence all matters of defence which might be proved under said denial, or under any other proper answer that might be pleaded herein; and that the plaintiff may give in evidence any matters proper to support the complaint or rebut the defence of the de- fendant which would be admissible under any proper reply," — hdd a waiver.) 800 Abbott's Bbief oi<( Pleadings. Submission" Aftbk [§ 1034. If the party failing to comply with the statute has been allowed without objection to adduce evidence in sup- port of • his unsworn denial, a verdict or finding in his favor upon the question should not be disturbed. Crowley vs. City E. Co., 60 Cal, 628. [Under some statutes, going to trial without objection has been held a waiver.] 7. Facts Occtjered Pending Suit. § 1024. Facts in furtherance of the § 1036. Facts in amended instead of original cause of action. supplemental pleading. 1025. Additional instalments. § 1024. Micts in furtheranoe of the original cause of action. — Under a supplemental complaint, facts constitut- ing a further development of tlie cause of action origi- nally alleged, and entitling plaintiff to extended or varied relief, are available even though such facts are such as might have been used as the sole basis of an action. Latham vs. Eichards, 15 Hun (N. Y.), 129. s. p., Haddow vs. Lundy, 59 N. Y., 320. Hipgrave vs. Case, L. E. 28, Gh. D., 356 ; s. c, 54 L. J. Ch., 399 ; mL.T. R. N. 8., 242. § 1025. Additional instalments. — Additional instal- ments of obligation falling due during the action cannot be recovered without amendment or supplemental plead- If the action is for principal due before its commence- ment, interest to the time of verdict, report, or decision may be had without supplemental or amended pleading. If the action was for interest, principal falling due after its commencement cannot, against objection, be had without such pleading.* ' Manhattan Sav'gs Bk. vs. Town of East Chester, 44 Hun {N. Y.), 537. s. p., Hamlin vs. Eace, 78 M., 422. § 1026.] Evidence Takbi^. Facts Occuebd Pending Suit. 801 ' Malcolm vs. Allen, 49 N. Y., 448, 452, rev'g 5 Alb. L. J., Foxell vs. Fletcher, 87 JST. Y., 476 ; s. c, 14 Weekly Dig., 298. § 1026. Facts in amended instead of supplemental pleading. — Facts occurring after suit, proper to be set up by supplemental pleading, are available at the trial if set up by an amended pleading to which no objection was seasonably made on the ground that the pleading should have been supplemental. Howard vs. Johnston, 82 N. Y., 271. (Amendment of an- swer setting up over-payment. Folgee, Ch. J., said : I' When a supplemental answer has been allowed, put in, and the allegations of it proven, any judgment to which they entitle the defendant against the plaintiff should be rendered in the defendant's favor. We can- not regard the amendment of the answer in this case consented to by plaintiff, as other in effect than a sup- plemental answer allowed by the Court, with all the consequences as to right to prove and right to judgment flowing therefrom. The defendant was permitted to claim by amended answer that the plaintiff had been overpaid, and to ask judgment for the amount of over- payment. No greater latitude need have been allowed by a supplemental answer.") Knickerbocker Life Ins. Co. vs. Nelson, 78 N. Y., 137 ; s. c, 7 Abb. N. a, 170, 180, 181. s. p.. Puffer vs. Lucas, 101 N. C, 281 ; s. c, 7 South Bast, 734. (Holding it too late to object at the trial for the first time that an agreement made with plaintiff as to the subject of controversy pending the suit, and his breach of it, was set up by answer, and was not stated as a counterclaim. If sufficient matter is pleaded, the law determines the character and effect of the pleading without regard to the particular name given it.) 803 Abbott's Brief obt Pleadings. Submission Aftek [§ 1027. 8. CONEORMITY OF PkOOFS TO ALLEGATIONS. § 1037. Success on the evidence lim- § 1030. Kepresentative capacity mis- ited by the pleadings, ' described. 1038. Allegation of individual cause 1031. Counsel's practical construc- of action by plaintiff de- tion of pleading, scribed as representative. 1033. Joint and several obligations. 1089. Allegation of representative's 1033. Omission to reply, cause of action and proof of 1034. Departure, individual cause. § 1027. Success on tlie evidence, limited hy the pleadings. — In Equity,^ and under the New Procedure,^ a party, whether plaintiff or defendant,^ must prevail ac- cording to the case made by his pleading, or not at all ; secxindwm allegata as well as probata. But this rule is to be applied equitably, and does not preclude recovery on facts alleged, though inaccurately in detail.^ ' Eome Exchange Bank vs. Eames, 5 ^h. Ct. App. Bee. {N. Y.), 83. (Creditor's action. The Court say: "No decree can be made in favor of a plaintiff on grounds not stated in his complaint, nor relief granted for mat- ters not charged, although they may be apparent from some parts of the pleadings and evidence.") " Proof without allegation is as ineffectual as allegation ■without proof." Hunt vs. Daniel, 6 J. J. Marsh. {Ky.), 399, 404. Reynolds vs. Morris, 7 Ohio St., 315. (Eesulting trust. Allegation that plaintiff paid all the consideration ; proof of only part ; total failure.) Jeffrey vs. Flood, 70 Md., 42 ; s. c, 19 Md. L. J., 949 ; 16 Atl., 444. (Bill to enjoin foreclosure by sale under power, on the ground that defendant refused to receive the balance due, claiming more ; prayer for accounting, and offer to pay what was due. Hdd, error to give ab- solute injunction on proof of usury and overpayment. But bill amendable.) 'Eome Exchange Bk. vs. Eames, 4 Ahh. Ct. App. Bee., 83 ; Wright vs. Delafield, 25 N. T., 266. San Marcial Land and Imp. Co. vs. Stapleton {New Mex., § 1027.] Evidence Taken. Pboops to CoKf obm to Pleading. 803 1887), 12 Pacif. Rep., 621. (Bill to enjoin enforcement of power of sale on allegations that it was in violation of covenant, not sustainable on the sole ground that the power of sale was void.) ' Southwick vs. First Nat'l Bank of Memphis, 84 N. Y., 420. (Where complaint charges defendant with a breach of a promise to apply the proceeds of a draft, defendant cannot be held liable upon the ground of a conversion of the draft, or that a mistake of facts induced its pay- ment by plaintiff.) Day vs. Town of New Lots, 107 N. Y., 148. (Allegation of plaintiff's title to a fund in defendant's hand : proof that the fund was held for a third person, against whose interest plaintiff had an equitable claim.) Arnold vs. Angell, 62 N. Y., 508. (Under an allegation of partnership, and prayer for dissolution and accounting, it is error, on failure to prove the partnership, to give judgment for the money put into the business, as a loan upon interest.) Compare White vs. Gaines, 25 N. Y. WeeJdy Dig., 361. (Holding that although plaintiff alleged that he was en- titled to share in profits as a partner, recovery for work and labor payable by a share in the profits was allowa- ble, as the allegations were sufficient, disregarding the allegations of partnership ; and Marsh vs. Masterson, 101 K Y, 401.) [For other contrasted cases, see note 5.] " Wright vs. Delafield, 25 J^. Y, 266. (Action to restrain suit on notes. Held, error to give defendant affirmative relief not within the answer.) Hall vs. U. S. Eeflector Co., 30 Hun {N. Y), 375. (Re- versing judgment because rendered on a defence un- pleaded.) Field vs. Mayor, etc., of N. T., 6 N. T., 179 (payment not pleaded not available without amendment) ; s. p., Seward vs. Torrence, 5 N. Y. Supm. Ot. {T, & 0.), 323 j mem. ; s. c, 3 Hun {N. Y.), 220. Smith vs. Owens, 21 Cal., 11. (Fraud no defence be- cause not pleaded.) But defendant is entitled to such benefit as the fact>, pleaded and proved by him entitle him to by law, irre- spective of whether he has rightly called it in his an- swer a defence or a recoupment. Springer vs. Dwyer, 50A^.r., 19. For other contrasted cases, see note 5. •Crawford vs. Moore, (K 8. O. Ct. W. D. Mich.), 28 Fed. Rep., 827. (Bill to compel conveyance of land to the 804 Abbott's Brief on Pleadings. Submission After [§ 1037. heirs of the person who furnished the purchase-money. The Court say : The rule that proof and the pleading must correspond is a familiar one, but it is to be applied equitably and not rigidly, especially when it is ap- pealed to on behalf of a party having at all the time of the progress of the cause the facts in full possession, and therefore not misled by the pleading, which, al- though inaccurate or mistaken as to some of the de- tails, yet contains averments sufficient to support a claim for the relief prayed for.) For further illustrations of the rule in the text, see — Express obligation; and implied. Eitter vs. Galitzenstein, 13 Daly {N. Y.), 452. (Under a complaint alleging breach of an express partnership agreement not to indorse the firm's name, plaintiff can- not recover by force of the general rule of law which prohibits a partner from indorsing in the firm's name accommodation paper.) Louisville, etc., Ey. Co. vs. Godman, 104 7?m^., 490 ; s. c.,4 North East. Bep., 163. (Under an allegation of refusal to receive and carry as agreed, recovery cannot be had for neglect as common carrier to furnish proper appliances.) Hempstead vs. N. Y. C. E. E. Co., 28 Barb. {N. J.), 485. (If a complaint charges defendants only as carriers, and the proof shows they were forwarders, the case must fail. Cited by Prof. Dwight as illustrating the true rule, in Place vs. Minster, 65 N. Y., 89, 102.) Obligation alleged ; and recovery on original consideration. Jones vs. Sparks, 1 JV". Y. State Rep., 476. (Action on note ; recovery on the original consideration allowed against a technical objection as to the manner of pre- sentment.) [^Gontra, Housee vs. Phinney, 20 Hun {N. Y.), 153. Ee- covery on the original consideration not allowed, where the note was void for usury.] Tort, with contract as matter of inducement alleged ; and no proof of tort. Eoss vs. Mather, 51 N. Y., 108. (Complaint alleged in substance a sale of a horse to plaintiff, which the de- fendant warranted and falsely represented to be in a certain condition ; that, relying on such representation, plaintiff purchased the horse ; that in fact the horse was diseased, and not in the condition represented, which the plaintiff well knew. Held, that the gravamen of the action was fraud, and plaintiff could not recover on proof of warranty only.) Degraw vs. Elmore, 50 N. Y., 1. (Action to recover the purchase-money of certain stock, which defendant had 1027.] Evide:nce Takeist. Proofs to Conform to PLBADmG, 805 by fraudulQjit representations induced plaintiff to buy. The evidence showed that stock was received in pay- ment of a precedent debt. Held, that the plaintiff could not recover the amount of the debt in this action.) King vs. McKellar, 94 N. Y., 317. (Under a complaint alleging that defendant converted money intrusted to him, recovery cannot be had although it appears that defendant negligently took insufficient security, but had invested the money in good faith.) Lockwood vs. House, 101 N. Y., 647. (Eeplevin for deed : recovery in specific performance not allowable.) People vs. Denison, 19 Ilun {N. Y.), 137, aff'd in 80 N.Y., 656. (Complaint by the people alleged that defend- ants without right, by means of frauds, devices, false pretences and vouchers, and corrupt combinations with the State officers, had obtained moneys owned by and belonging to the State to the sum of $417,571. Held, that, fraud not having been proved, the action could not be retained as one of implied contract grow- ing out of the duty of the defendant to refund money which had been unlawfully paid him.) Beach vs. Eager, 3 Hun {N. Y.), 610. (Complaint alleged a cause of action arising from fraudulent representa- tions as to the defendant's power to sell a mortgage. Held, error to charge that plaintiff was entitled tO re- cover if the employment was not within the scope of defendant's agency.) Sumner vs. Eogers, 90 Mo., 324, and cas. cit. (Counts for fraud in inducing discharge of a note : error to allow recovery on the note without proof of fraud.) Contract with tortious breach alleged ; and no proof of tort. On proof of facts alleged and raising implied contract, plaintiff may recover without proving additional allega- tions of tort. Connaughty vs. Nichols, 42 N. Y., 83. (Money received coupled with allegations of conver- sion.) s. P., Sheahan vs. Shanahan, 5 Hun {N. Y.), 461 ; Gord.on vs. Hostetter, 37 N. Y, 105 ; Byxbie vs. Wood, 24 id., 607 ; Greentree vs. Eosenstock, 61 id., 583. Compare Barnes vs. Quigley, 59 N. Y., 265. (Here the complaint alleged that plaintiff was induced by fraud to give up to defendant his promissory note for an in- sufficient consideration. Held, that plaintiff could not recover as for balance unpaid upon the note. The Court say: " It was error in the Court to change the form of action by striking out or treating as surplus- age the principal allegations, those which characterize 806 Abbott's Brief on Pleadings. Submission After [§ 1027. and give form to tlie action, because perchance there may be facts stated by way of inducement spelled out which would when put in proper form have sustained an action- of assumpsit.") Beard vs. Yates, 2 Hun {N. T.), 466. (Complaint alleged breach of covenant granting water privileges to a mill. Hdd, error to allow plaintiff on failing to prove any covenant, to recover for a tortious interference with his rights.) Pitt vs. "Wilkinson, 24 N. Y. Weekly Dig., 43. (A.llegation of sale : recovery on proof of no sale, but deprivation of property by fraud of a third person, not allowable.) Sherman vs. Johnson, 56 Barb. (iV. Y.), 59. (Although the complaint alleges that defendant's statements in reference to an account or claim sold to him by defend- ant were false and fraudulent, still recovery may be had without showing fraud if enough is proved to sus- tain an implied warranty.) [For other authorities see § 970.] Nealis vs. Lissner, 52 Hun, 503 ; s. c, 5 JV. Y. 8upp., 682. (Allegations that the defendants unlawfully and fraudu- lently failed to perform, are redundant, and the allega- tions of fraud stricken out on motion.) Contract with tort inducing it alleged, and no proof of tort. ■ Sparman vs. Keim, 83 JST. Y., 245 ; s. c, 9 Abb. N. C, 1. (Holding plaintiff might recover back money invested in a partnership on the ground that he was an infant, without proving his allegations that he was induced by fraud to enter into the partnership.) Graves vs. Waite, 59 N. Y:, 156. (Where the gravamen of an action is contract, allegations of fraud inducing the entering into the contract,, and a demand for dam- ages resulting therefrom, in addition to the sum to which the plaintiff was entitled under the contract, are wholly irrelevant, and such fraud need not and cannot be proved.) s. p., Ledwich vs. McKim, 53 JST. Y, 307. (Holding that the whole frame of the complaint must be considered.) s. p.. Boss vs. Terry, 63 W. Y, 613. Liadsay vs. Mulqueen, 26 Hun {N. Y.), 485. (Fraudulent representations where warranty is alleged.) s. p., Quintard vs. Newton, 5 Bobt. {N. Y.), 72; Fowler vs. Abrams, 3 E. D. Smith {N. Y.), 1. WUfid lorong alleged ; and mere negligence proved. It is the better -opinion that where negligence is otherwise appropriately pleaded, the mere addition of such epi- thets as " wilfully," " maliciously," or the like, do not prevent recovery on proof of unintentional negligence. § 1027.] Eyidence Taken. Proofs to Confobm to Pleading. 807 Louisville, N. A. & 0. E. Co. vs. Wood, 113 Ind., 544 ; s. c., 14 North East. Rep., 572; 12 West. Eep., 303. (Alle- gation that conductor's hurrying plaintiff off the train was done wilfully.) McCord vs. High, 24 Iowa, 336. (Allegation that negli- gent acts were wilful and malicious.) Claxton's Ad'm vs. Lexington &, Big Sandy E. E. Co., 13 Bush (Ky.), 636. (Where under a statute (Ky. Gen. Stat., 57, §§ 1, 3) the plaintiff seeks to recover punitive damages for wilful neglect, he may nevertheless on the proof of culpable negligence recover compensatory damages. Allegations of wilful neglect include all in- ferior degrees of negligence under the statute.) Taylor vs. Holman, 45 Mo., 371. (Breaking plaintiff's mill, alleged to be caused by defendant's "wilful negligence." Held, error to instruct to find for defendant unless the injury was caused by wilful negligence.) Conway vs. Eeed, 66 Mo., 346. (Allegation of " unlawful and wrongful " shooting. Evidence of a negligent shoot- ing sufficient to sustain verdict for plaintiff.) s. p., Eobinson vs. Wheeler, 25 JV. T., 252. (Suit against plaintiff's tenant for waste. Plaintiff alleged that de- fendant " wrongfully" set fire to a wood-shed. Meld, no error to charge that plaintiff could recover for the wood-shed on proof merely of negligent burning. " It was the same kind of waste, the complaint averring ' that it was committed wrongfully, and the proof show- ing that it was done negligently.") An allegation of " fault" sustains recovery for negligence. School Dist. in Medfield vs. Boston, H. & E. E., 102 Mass., 552. If, however, the gravamen of the charge is of a wilful or malicious injury, it cannot be sustained by proof of mere negligence, though gross. C, B. & Q. E. E. Co. vs. Dickson, 88 III., 431. (Declara- tion alleged that the defendant's servants caused a whistle of a locomotive to be sounded needlessly and recklessly, wilfully, wantonly, and maliciously. Reld, that no recovery could be had for mere negligence, but the proof must show the sounding of the whistle in the manner charged.) Indiana, Bloomington & W. E. Co. vs. Burdge, 94 Ind., 46. (Action by a passenger for injuries from being thrown from a train. Complaint alleged that defendant's en- gineer, "in a wilful, reckless, careless, and unlawful manner, let on such a volume of steam to the engine as caused said train to jump and jerk into immediate move- ment at a very high and unlawful rate of speed in said 808 Abbott's Brief on Pleadings. Submission Aetek [§ 1027. city," whereby tlie plaintiff was injured. Held, under such complaint, recoTsry could be had without allega- tion or proof of want of contributory negligence, but the injury must be proved to have been wilful.) s. p., Panton vs. Holland, 17 Johns. {N. ¥.),_ 92. (Allega- tion that defendant " maliciously intending" to injure plaintiff, dug up the soil contiguous to plaintiff's mes- suage, and that from such loss of soil plaintiff's founda- tion-wall fell down. Held, proper to refuse a nonsuit moved for on the ground that no malice was shown. The words " maliciously intending" could be rejected as surplusage, though it would be otherwise of an allegation that he maliciously dug up the ground.) Wrongful taking ; and detention. ■ Hopkins vs. Davidson, 52 N. Y. Super. Ct., 529. (Com- plaint alleging unlawful taking is not sustained by proof that defendant came lawfully into possession of the property, but unlawfully detained it.) Dean vs. Yates, 22 Ohio St., 388. (Under allegations charging that defendant by means of fraud obtained plaintiff's goods, a recovery cannot be had on proof that he was a hona-fide purchaser from a third person who had no title.) Different modes of injury. ■Pixley vs. Clark, 32 BarK, 268 ; s. c.,_35 N. Y., 520. (Alle- gation of damages caused by turning water upon land. The proof was interference with the drainage of the land, which prevented the water naturally there from flowing off. This deviation was held to be a failure of proof in the lower court, but its decision was reversed on apj)eal.) Commenting on this case. Professor Dwight, Com'r, says, in Place vs. Minster, 65 N. T., 89 : " The substance of the charge was, that, through the act of the defendant, water was doing injury to the defendant's lawn. The variation in the proof was as to the mode of accomplish- ing the result, and that was immaterial, unless shown by statute [i.e., according to the statute] to be material." Allegation of fraud, not sustained by proof of mistake. McMichael vs. Kilmer, 76 N. Y., 36, rev'g 12 Hun {N. Y.), 336. (Complaint for fraud in settlement of an account ; recovery cannot be had on proof of mutual mistake.) Dudley vs. Scranton, 57 JV. Y, 424. (Under a counter- claim charging fraudulent concealment in making a §1027.] Evidence Taken. Proofs to Coneokm to Pleading. 809 settlement, Court properly refused to submit to the jury whether certain items were omitted by mistake.) Belden vs. State, 103 N. Z, 18 (holding therefore that judgment against plaintiff in an action for fraud was not conclusive as to the amount which was actually due and ought to have been paid when drawn in question in an action for mistake). [Otherwise where defendant alleged mistake and asked reformation, so that both parties claimed that their minds had not met. Crowe vs. Lewin, 95 N. Y., 423, aff'g 16 fVeeky Dig., 550.] [Otherwise perhaps also of an allegation of mistake and proof, without objection, of fraud. See Sweezey vs. Collins, 36 Iowa, 589.] In Eussell vs. Brownell, 20 if. Y. Weekly Dig., 504, equitable relief on the ground of mistake was granted where the count for mistake was not dependent upon the allegation of fraud. Different grounds for same equitable rdief. Tufts vs. Tufts, 123 U. 8., 76 ; s. c, 31 Law. ed., 91 ; 8 Supm. Gt. Bep., 54. (Holding that a bill for relief on ground of fraud is sustainable if the facts found are not materially and substantially different from those al- leged.) Yoorhees vs. Bonesteel, 16 WaU., 16, aff'g 7 Blatchf., 495. (Bill by assignee in bankruptcy to recover from bank- rupt's wife property alleged to be held for her husband, not sustainable by proof that she took in fraud of his creditors.) Levy vs. Chittenden, 120 Ind., 37 ; 22 North East. Bep., 92. (Creditor's action to set aside mortgage for fraud not sustainable by proof of payment; amendment alleging as a further ground, that the mortgagors had been allowed to retain possession and disposal, allowable to conform the pleading to the proof.) Mayer vs. Feig, 114 Ind., 511 ; s. c, 17 North East Bep., 159 ; 14 West, 813. (Creditor's action to set aside mort- gage on the ground of actual intent to defraud creditors, not sustainable on proof of a subsequent agreement making the mortgage a trust for the mortgagor.) Third National Bank of Buffalo vs. Comes, 2 N. Y. State Bep., 543. (Complaint to set aside_ a conveyance for fraud on creditors cannot be sustained by proof that the conveyance was a trust for the benefit of grantor beyond the cost of his support and as to the surplus, liable to creditors.) _ ,.- ^^ ^„. Fuller Electrical Go.- vs. Lewis, 101 N. Y., 674; s. c, more 810 Abbott's Beibp on Pleadings. Submission After [§ 1027. fully, 4 East. Rep., 401. (Creditor's action, on an alle- gation that a conveyance of his debtor, absolute on its face, was in fact a mortgage, cannot be sustained as an action to set aside an absolute conveyance on the ground of a fraud.) Clough vs. Adams, 71 Iowa, 17 ; s. c, 32 North West. Rep., 10. (Bill to rescind conveyance, for fraud, undue influ- ence, and grossly inadequate consideration, — amend- able after close of evidence and during argument, so as to allege mental weakness and financial distress.) Howell m. Sebring, 14 N. J. Eg., 84. (Bill to set aside purchase by defendant for fraud and collusion ; proof that defendant purchased for plaintiif s benefit ; bill not sustainable without amendment.) Bender vs. Bender, 14 Oreg., 353; s. c, 12 Pacif. Rep., 713. (Action by wife to rescind a sale upon the ground of undue influence : not sustainable by proof that the property was purchased with their joint earnings, and deeded to the husband without consideration.) Fisher vs. Bishop, 16 JSf. T. Weekly Dig., 194. (Action to cancel mortgage for duress : not sustainable on proof of want of consideration.) Johnson vs. Stone, 35 Hun (iV. Y.), 380. (Complaint al- leged the sale of worthless mining stock to a lunatic. Held, that the action might be maintained as an action in equity for the purpose of avoiding the sale (it being ob-vdously so framed), without proof of fraud, although defendant's acts were alleged to be wrongful and un- lawful.) [Compare Durand vs. Hankerson, 39 N. Y., 287, holding that in a creditor's action to set aside a conveyance for fraud, grantee may be decreed to pay the purchase- money mortgage to receiver, although no fraud is shown.] Eyre vs. Potter, 15 How. {U. 8.), 42. (Under a bill for . relief against alleged actual and intentional fraud, re- lief cannot be granted on the ground of constructive fraud, even though incidentally indicated by the allega- tions charging actual fraud.) [Contra, Eickett's Appeal {Pa., 1888), 11 Centr. Rep., 43. (Bill by devisee, etc., against trustee, to set aside pur- chase by the latter on a fraudulent judgment.) Compare Bailor vs. Daly, 7 Machey {B. C), 175 ; s. c, 17 Wash. L. Rep., 294, holding that failure to prove actual fraud alleged as a ground for impeaching a judicial sale will not prevent considering other allegations of such serious irregularities as to show that there was no legal sale.] § 1028.] Evidence Takek. Proofs to Coneokm to Pleading. 811 Priest vs. Way, 87 Mo., 16. (Complamt charging fraudu- lent abstraction of funds of the deceased : error to sus- tain on proof merely that defendant procured a gift from deceased by the exercise of undue influence.) Marsh vs. McNair, 99 If. Y., 174, 178, 180. (Under an alle- gation that an instrument was made with intent merely to create a collateral security, and asking reformation accordingly, a recovery without reformation, on proof that its execution was induced by fraud or mistake not alleged, cannot be had.) s. p., Bruce vs. Burr, 67 If. Y., 237. (Fraud alleged; mistake proved.) Dalton vs. Leahey, 80 Gal., 446 ; s. c, 22 Pacific Rep., 283. (Where action is to redeem from an absolute deed, on the ground that it was in fact a mortgage, jiidgment cannot be sustained by evidence of an absolute sale and agreement for reconveyance on repayment.) Vail vs. Long Island E. E. Co., 105 H. Y., 283. (Action to restrain the use by a railroad of land of which plaintiff claimed to be owner, cannot be sustained by , proof that plaintiff's interest in the land was that of an abutting owner on a public highway.) Benedict vs. Seventh Ward Eailway, 51 Hun {N. J^.), 111. (Action to enjoin a street railway on the ground that it had not obtained the consent of property-owners, can- not be sustained on the ground that defendant was a trespasser upon land in the street in which plaintiff had an interest as abutting owner.) § 1028. Allegation of individual cause of action hy plaintiff described as representative. — Under a complaint stating a cause of action on which plaintiff appears to be entitled to recover in his individual capacity, he may recover in that capacity, notwithstanding the action is entitled as brougtt by him as executor or as administra- tor,^ trustee, or in other representative capacity, even if, by reason of the appointment being foreign, the action eould not be sustained in that capacity.^ Bingham vs. Marine Nat. Bank N. Y., 112 N. Y., 661 ; s. c, 20 State Rep., 292 ; Wick vs. Jewett, 9 N. Y. State Rep., 477 ; s. P., Litchfield vs. Flint, 104 N. Y., 543 ; s. c, 7 Centr. Rep., 41 ; 11 Iforth East. Rep., 58 (on demurrer) ; S. p., Murray vs. Church, 1 Hun, 49 ; s. c, 3 Sup'm Ct. 812 Abbott's Brief on Pleadings. Submission Aftee [§ 1039. {T. c& C), 145; affirmed on tMs opinion in 58 iV. T., 621. Amendment before trial allowable. Nat. Benefit Ass. vs. Jackson, 114 III., 533 ; s. c, 1 Western Bep., 600 ; s. c, 2 JVorth East. Bep., 414. ' Newberry vs. Eobinson (S. D. N. Y.), ^& Fed. Bep., 841. (Description of plaintiff as an administratrix, being mere descriptio personal, may be disregarded as surplus- age, on demurrer, w,liere the right of action is one on -which she can sue as an individual.) s. P., Spooner vs. Delaware, L. & W. E. Co., 115 N. T., 22,' 30; s. c, 'i'^ State Bep., 554. § 1029. Allegation of representative's cause of action, and proof of individual cause. — If a plaintiff suing in a representative capacity alleges a cause of action upon which he ought to recover in his representative capacity, he cannot recover on proof of a cause of action belonging to him in his individual capacity. Stokes vs. Eiley, 111,111., 166; s. c, 9 West., 522; 11 N. East., 877. (In equity.) Mowry vs. Hawkins, 57 Conn., 453, 458. (Dictum that one suing as a trustee must show his right to recover as such.) In an action brought by plaintiff in his individual ca- pacity to charge not a wrongdoer, but to establish an equity against one in rightful possession, plaintiff can- not prevail on proving that he claims as trustee for third persons. McCoU vs. Fraser, 40 Hun {N. Y.), Ill, 114. But evidence that the cause of action is one for which the plaintiff may be required to account in a representative capacity, though such evidence be adduced by himself, will not preclude recovery under a complaint in his iu- dividual capacity, if the cause of action be such as he has the right to sue upon in either capacity. Davis vs. Carpenter, 12 Hotv. Pr. (K F.), 27 ; Thomas vs. Ben- nett, 56 Barb. (N. Y), 197; Merritt'ys. Seaman, 6 N. Y, 168. In an action of such nature, plaintiff may recover although defendant establishes a sufficient defence against the plaintiff in the capacity in which he might have brought but did not bring the action. Scranton vs. Farmers', § 1031.J Eyidbnce Taken-. Peoofs CoNFOfiitTO Allegations. 813 etc.,_ Bank, 33 Barb. {N. Y.), 527. (Holding that stating an indebtedness to pay, as executor, etc., for moneys deposited by him as executor, etc., and demanding " judgment as such executor," sufficiently showed that plaintiff sued as such ; and that a defence that the money was his individual money, and had been paid to an execution creditor of his, was not available. Affirmed on the merits in 24 N. Y., 424.) s. p., but contra to last case as to what allegation is suf- ficient to show the capacity in which the action was brought. Worden vs. Worthington, 2 Barb., 368. (Sus- taining, on demurrer to replication, the defence of limitations, which would not have been appropriate if the action were in representative capacity. So held, although the declaration concluded " to the damage of plaintiffs as administrators.") § 1030. Representative capacity misdescriled. — A mistake in describing the representative capacity of tlie plaintiff or the defendant — sucli as alleging that he is executor instead of administrator with the will annexed,^ or instead of trustee"^ — is amendable at the trial.^ ' Eisley vs. Wightman, 13 Hun, 163. " Ducker vs. Eapp, 67 N. T., 464. ' In McElwain vs. Corning, 12 Abb. Pr., 16, an amendment to correct the misstatement that defendants were sued as executors of B instead of as executors of A was al- lowed, on special motion, in order to save the statute of limitations. But compare Davis vs. N. Y., Lake Erie & W. K. Co., 110 N. Y., 646; s. c, 15 Civ. Pro. P., 62 ; Shaw vs. Cock, 19 Hun {N. Y.), 478, aff'd in 78 N. Y., 194, against allowing amendment to elude the statute of limitations. § 1031. CovnseVs practical construction of pleading. If the form or contents of the complaint are not con- clusive as to whether a plaintiff or a defendant is made such in his individual or his representative capacity, and counsel have concurred in trying the cause on either theory exclusively, it is too late at the close of the evi- 814 Abbott's Brief on Pljeadings. Submissioi^ Aftbb [§ 1033. dence for either to shift ground, and claim that the other construction controls the Judgment. Fritz vs. McGill, 31 Minn., 536. Bennett vs. Whitney, 94: N. Y., 302. Fortier vs. New Orleans Bank, 112 U. S., 439. § 1032. Joint and several obligations. — Under the New Procedure, unless the variance has caused prejudicial surprise, or affects the mode of trial, against objection, separate judgment may be had . in favor of one of two plaintiffs who shows a right to recover on the facts al- leged, and against the other who fails to do so.^ So also against one or more^ of two defendants sued on a joint or joint and several obligation, if he or they are proved to be alone liable on the contract alleged, and in favor of the other who is not.^ ' Simar vs. Canaday, 53 N. Y., 298 ; s. p., Quinn vs. Martin. 54 id., 660. "Field vs. Van Cott, 15 Ahh. Pr. N. S. (iV. Z), 349 ; s. c, 5 Daly, 308. ' Brumskill vs. James, 11 N. Y., 294. (Action on alleged firm note : recovery against one [a husband] who signed it in firm name, and in favor of the other [his wife], sustained.) Stedeker vs. Bernard, 102 N. Y., 329. (Allegation of part- nership note : judgment against one of the firm sus- tained.) s. p., I 944. Harrington vs. Higham, 15 Barb. {N. Y.), 525. (Action against alleged partners on an award : judgment against those only who consented to the submission, sustained.) Mcintosh vs. Ensign, 28 N. Y,, 169. (Action against car- riers.) Fielden vs. Lahens, 6 Ahh. Pr. N. S., 341. (Negotiable paper.) s. P., Herrington vs. Eobertson, 71 N. Y, 280, aff'g 7 Hun, 368. (Action against executor for money, and against devisee to charge land with lien therefor. Judgment against the executor alone, sustained.) The rule that in an action for tort the jury may find § 1035.] Evidence Taken. Confobmitt of Findings. 815 against one defendant and in favor of another, does not apply where such defendants answer jointly, making an admission which supplies the lack of evidence. Murphy vs. Kron, 20 Abb. N. C, 259. (Assault and false imprisonment.) § 1033. Omission to reply. — Where a reply or repli- cation is required, proceeding through the trial as if one had been put in is a waiver of its omission, and it is not error to decide or instruct as if there had been a formal reply or replication. Header vs. Malcolm, 78 Mo., 650. Muldoon vs. Blackwell, 84 N. T., 646. § 1034. Departure. — A reply or replication making a different case from that alleged in the complaint or bill will not avail to sustain the case on failure to establish the claim alleged in the bill. Vattier vs. Hinde, 7 Pet., 252, 274, rev'g 1 McLean, 110, and holding that the English Chancery practice applies, and a departure is not allowable in replication, but the bill should be amended. 9. COBTFOEMITT OF FINDINGS TO THE IsSITE AND AD- MISSIONS. §1035. Findings controlled by admis- §1036. Waiver of admission by sion. going into evidence § 1035. Findings controlled by admission. — A party has a right to object to any finding being made contrary to an admission in pleading which he has not waived. Walker vs. Brem, 67 Cat., 599 ; s. 0., 8 Pac. Bep., 820. If findings are made on matters covered by admission they must conform to the admission.) Hall vs. Polack, 42 Cal, 218. Carter vs. McCormick, 4 Col., 196. (Newly discovered evi- 816 Abbott's Brief on- Pleadings. Submission After [§ 1036. dence contrary to a fact admitted is not grouiKl i i' a new trial.) Fitzgerald vs. Barker, 85 Mo., 13. (Error to instruct con- trary to an admission.) Dunham vs. Cudlipp, 94 JST. Y., 130. Bonn vs. Steiger, 21 Jffun {N. Y.), 219. Fiske vs. Bailey, 51 N. Y., 150, 154. (Allegation in an- swer, that plaintiff was unlawfully on defendant's prem- ises, — Hdd, an admission of ownership _; and the jury had no right to find against this admission on the rec- ord.) Oliver vs. Moore, 23 0. S., 473. (Holding it error to dis- regard admission when no evidence was given to con- trovert it.) Wilcox vs. Servant, etc., 2 Mod., 6. (Admission in plead- ing overrides contrary finding in special verdict.) § 1036. Waiver of admission hy going into evidence. — A party whose allegation is admitted by his adversary's pleading does not, as matter of law, necessarily exoner- ate the adversary from the conclusive effect of the ad- mission, either by adducing evidence himself to the con- trary of it, or by allowing the adversary to adduce evidence in support of the admitted allegation. Notwithstanding such unresisted reception of evidence, the Court may hold the parties to the trial of the issues which they have pre- sented in the pleadings, and treat the admission as conclu- sive ; and may find the fact, or may direct a nonsuit or a verdict, in accordance with the admission, notwithstand- ing the insufficiency of the evidence which has been given in the attempt to establish the fact admitted,^ or the cogency of evidence which has been received without objection contrary to the admission.* But the Court has discretionary power to treat the admission as waived, and to find, or to give instructions to the Jury in view of the evidence.^ ' Potter vs. Smith, 70 N. Y., 299. (Trespass : admission of title and possession.) Jones vs. Morehead, 1 Wall. ( U. 8.), 155, 165, (holding that though the evidence showed no infringement, § 1036.] EviDBH-cE Taken. Conformity of Findings. 817 yei as the answer admitted infringement, decree against defendant was right ; but as the extent of the infringe- ment was not distinctly admitted, the admission must be construed as narrowly as possible, and the decree reduced accordingly. Miller, J., in delivering the judg- ment of the Court, says : " An effort has been made by counsel to show that this admission has been waived by the act of plaintiffs in going into the proofs, and otherwise treating it as an open question. But this would violate a principle of universal application both in proceedings at Common Law and in chancery, to wit, that the proofs must correspond with the allegations. It would be subversive of all sound justice, and tend largely to defeat the ends of justice, if the Court should refuse to accept a fact as settled, which is dis- tinctly alleged in the bill and admitted n the answer.") * Darling vs. Brewster, 55 N. Y., 667. (Holding that ad- mission by failure to answer is not waived by plaintiff's offering evidence on applying for judgment, nor by allowing, without objection, evidence to be adduced by defendant.) Paige vs. Willett, 38 N. Y., 28. (Common Law action. Held, that it was not error to find in accordance with the admissions, disregarding the evidence to the contrary ; with dictum that this is the only proper course.) Krom vs. Levy, 6 N. Y. 8upm. Ot. {T. & C), 253. (Ee- coupment disallowed because not pleaded, although evidence in support of such defence or counterclaim had been received without objection.) •Bryan vs.- Baldwin, 52 JV. Y, 232, 234. (So holding, be- cause if objection had been made amendment might have been asked.) Ely vs. Cook, 2 mlt, 406 ; s. c, 9 Ahi. Pr., 366, [aff'd, without passing on this point, in 28 N. Y, 365]. Eandolph vs. Mayor, etc., of N. Y., 53 How. Pr., 68, 76. Mensch vs. Mensch, 2 Pans. {N. Y.), 235. (Action for an- nuity ; complaint alleging that no payment had been made. Hdd, that plaintiff's proof of a payment made having been received without objection, the Court could treat the payment as taking the case out of the statute of limitations, which was pleaded by defendant, it not appearing that defendant was misled.) Case vs. Pharis, 106 N. Y, 114, 118. (An admission in pleading is not conclusive in such sense, that if not brought to the attention of the trial court a disregard of it will be ground of reversal. So holding of an ad- mission in a bill of particulars.) s. p., Stilwell vs. Car- penter, 2 Abb. N. C, 238, 268 ; mem. s. c, 62 N. Y., 818 Abbott's Brief on Pleadings. Submission Aftek [§ 1037,. 639 ; modifying 59 K T., 414, which rev'd 1 Supm. Ot. {T. & C), 615. In Schreyer vs. Mayor, etc., of N. ¥., 39 Super. Ot. {J. de S.), 1, followed in Donvan vs. Board of Education of N. Y., 44 Super. Ct. {J. & S.), 53, it was held error to dismiss the complaint on the ground that the evidence showed the falsity of allegations which the answer had admitted. 10, Conformity of Relief to the Peaver or Demand FOR Judgment. i 1037. Scope of the demand for judgment. 1038. Damages limited by pleading. 1039. Interest. 1040. Special damages not proven. 1041. not alleged. 1042. Circumstances of aggravation not available alone. 1043. Treble and single damages. 1044. Amending as to damages. 1045. Granting Legal relief under a complaint of an Equitable frame. 1046. Granting Equitable relief un- der a complaint of a Legal frame. 1047. Causes of action of concur- rent jurisdiction. 1048. Equitable ground for relief equivalent to Legal. 1049. Legal case proved under com- plaint in Equity. 1050. — by defendant's evidence. 1051. Equitable case proved under complaint appropriate to Legal action. t 1053. Legal or Equitable relief on same transaction. 1053. Equitable avoidance of de- fence to legal claim. 10.54. Necessary allegations of fact. 1055. Equitable relief as to part, and damages as to part. 1056. Equitable defence and coun- terclaim. 1057. Equitable defence lets in plaintiff's equities. 1058. Affirmative relief in favor of defendant. 1059. Rights of defendants in de- fault. 1060. Relief between co-defendants — Omission of demand and service. 1061. — In case of plaintiff's failure. 1063. — Incidental relief between co-defendants involved in shaping plaintiff's relief. : § 1037. Scope of the demand for judgment. — Under the New Procedure, if there is an answer, the Court may per- mit plaintiff to take any judgment which the evidence supports that is consistent with the case made by his complaint and embraced within the issues, notwithstand- ing he has demanded judgment for too much/ too little,^ or the wrong relief.* § 1037.J Evidence Taken. Confokmity of Relief. 819 The same principle is applied in Equity where there is a general prayer for relief.'* But this principle does not permit Judgment for plain- tiff in hostility to the theory of the action and the sub- stantial allegations of his pleading.^ '. Dodge vs. Johnson, 9 N. Y. Civ. Pro. B., 339. (Demanfl for too much.) The rule that plaintiff may waive a part of the relief sought and take the other part, does not apply to a statutory action so as to enable plaintiff to recover for a different object than that named in the statute. Eamsden vs. Ramsden, 91 N. Y. 281. (Holding that under the divorce statutes plaintiff cannot waive the demand for a separation and take judgment for alimony alone.) ' Wood vs. Brown, 34 N. Y., 337. (Accounting adjudged, under prayer for general relief.) Simson vs. Chadwick, 20 JSf. Y. Weekly Dig., 35. (Redemp- tion adjudged, under prayer to remove cloud.) • N. Y. Code Civ. Pro., % 1207. Houck vs. Graham {Ind., 1886), 6 North East. Rep., 594. (The Court say : " The prayer for relief does not determine the character of the" pleading, nor assign it a particular theory. The facts give it character and effect. It is the substantial facts and not the general statements in form of con- clusions either by pleader or witness that controls a cause.") Evans vs. Schafer {I-nd., 1881), 21 Borth East. Rep., 448. (Ejectment. After finding plaintiff's right of posses- sion, omission of formal demand for judgment for possession disregarded.) Rhea vs. Reynolds, 12 Neh., 128. (Action on note, and to. foreclose lien. Error to refuse judgment on the note, because lien was not established.) Benedict vs. Benedict, 85 N. Y., 625. (Under prayer for specific performance and general relief : foreclosure of lien for the purchase-money granted, where the facts alleged were sufficient to show such lien.) Campbell Printing Press, etc., Co. vs. Damon, 48 Hun {N. Y.), 509. (Creditor's suit to reach specific property : judgment for value allowed, because the property could not be reached.) * Jones vs. Van Doren, 130 U. S. 684 ; s. c, 32 Law. ed., 1077; 9 Sup. Ct. Rej).,685. (Holding a prayer for general relief is sufficient to enable a court of equity to decrea such rehef as the facts stated in the bill justify.) 820 Abbott's Beief o's PLEADiifGS. Sttbmissios' After [§ 1038. Shelby vs. Tardy, 84 Ala., 327; 4 So. Bep., 276. (A com- plainant may be entitled to partial relief coextensive with that part of his claim which the proof sustains, unless repugnant to the prayer for relief ; and a general prayer is usually sufficient.) Vicksburg, etc., E. E. Co. vs. Eagsdale, 54 Miss., 200. Boardman vs. Davidson, 7 Abb. Pr. N. S., 439. (Holding the rule established by the Code to be the former equity doctrine.) An amendment adding a general prayer for relief permis- sible in order to support a decree. Adams vs. Kehlor Milling Co. (C. C. E. D. Mo.), 36 Fed. Hep., 212. ' Williams vs. Jackson, 107 U. S., 478. (In a suit by one whose debt is secured by a deed of trust, to set aside a release negligently executed by the trustee to the grantor, a decree for the payment of the debt by the trustee because of his negligence cannot be rendered. Such a relief would be inconsistent, as the object of the bill was to have the release declared void, and the trustee's liability was dependent on its validity.) "Wilson vs. Graham, 4 Wash. C. G. {U. S.), 53. (Incon- sistent relief not allowable under a general prayer.) First Natl. Bank of Indianapolis vs. Eoot, 107 iTui., 224 ; 5 West. Bep., 286. (Complaint to enforce a lien created ■ by a contract : decree to subject the property to sale under execution independent of the contract, not allow- able. The Court say : " In Indiana every pleading must proceed upon some single definite theory, which must be determined by its general scope and character. To this theory, so determined, the party must be held through all the stages of the case, and upon it he must stand or fall.") Graham vs. Eead, 57 N. Y., 681. (Where the complaint is based on the validity of a transaction, judgment cannot be based on its illegality.) Eome, etc., Bk. vs. Bameo^ 4 Abb. Ct. App. Dec. 83 ; 40 N. Y., 588. (Where a complaint claims the benefit of a trust deed, treating it as valid, relief cannot be given on the ground that the deed is void.) Approved in Truesdell vs. Sarles, 104 N. Y., 164 ; s. c, 10 South East. Rep., 139. s. P., Third National Bank vs. Comes, 107 N. Y., 737; 6 Eastern Rejp., 360. (Creditors seeking to set aside a trust deed as void cannot recover on the ground that they were entitled to the surplus after payments to support beneficiary.) § 1038. Damages limited hy pleading. — It is error to § 1039.] Evidence Taken. Conformity of Belief. 821 award a recovery for damages exceeding the sum de- manded in the pleading/ without previous amendment.^ If the verdict exceeds it, plaintiff must remit the excess, and take judgment for the residue only.^ ' It is the final prayer for relief that limits the amount of damages recoverable, rather than the allegation of damages at the end of the respective causes of action ; for the latter may be amended in support of a verdict, although not so as to exceed the sum stated in the de- mand for relief. Schultz vs. Third Ave. E- Co., 89 K T., 242, 247 ; s. c, 15 Weekly Dig., 80 ; 46 Super. Ct, 211. ^ See next section. ° Cameron vs. Boyle, 2 G. Greene (lotva), 154, followed in Sedgw. on Dam., 514. Annis vs. Upton, 66 Barb. {N. Y.), 370. § 1039. Interest. — The fact that interest is not specifi- cally demanded as a part of the relief, does not preclude the recovery of interest, if facts entitling plaintiff to recover interest are alleged and proved, and the demand of Judgment is large enough to include it, in addition to the principal recoverable. A demand of Judgment for a specified sum "with interest " is sufficient for this purpose, but it may be con- strued to be limited to interest from the commencement- of the action, unless it is apparent from other clauses of the demand or from the allegations that plaintiffs claim is for interest from a previous time or event, fairly specified. Green vs. Dunn, 5 Kan., 254. (Sureties' action for money ; error to allow interest before suit in addition to the sum for which judgment was demanded.) Haven vs. Baldwin, 5 Iowa, 503. (Action on a judgment. Held, a demand for judgment for a specified amount with'interest, only entitled plaintiff to interest from the commencement of the action. The Court say: "A party may, it is true, so present his claim as to recover the previous interest. For instance, if he sues on a 822 Abbott's Bbieb os Pleadings. Submission After [§ 1040. promissory note or upon a judgment (stating the amount for which the note was given or judgment rendered), and the interest that may be due thereon.") Butcher vs. Brand, 6 Iowa, 235. (Action on note. Heldr that a demand for judgment for a specified amount with interest, enabled plaintiff to recover interest in addition to the sum claimed, from the time of bringing the action, but not interest that was due on the no.te before the action was brought. If he desired to recover such interest, he should have laid his ad damnum to a sufficient amount so as to have included it.) s. p., Anderson vs. Kerr, 10 id., 236 ; Lyon vs. Byington, id., 124. Smith vs. Watson, 28 Jowa, 219. (A petition set forth a, note drawing interest, and asked judgment "for the amount due by the said note." Held, that interest due on the note to the date of judgment might be allowed.) Compare Whitaker vs. Pope, 2 Woods, 463; Meek vs. Lacy, 6 Ky. L. Rep., 516, modifying previous opinion. § 1040. Special damages not proven. — Failure to prove special •damages alleged, or the vvrithdrawal of all claim to them, does not entitle defendant to a dismissal of the complaint if plaintiff is entitled to general damages,, althougli only nominal. Kenny vs. Collier, 79 Ga., 743 ; s. c, 8 Soidh East. Rep., 58. (Error to dismiss.) McFadden vs. Eausch, 119 Pa. St., 507. s. p., Vanderslice vs. Newton, 4 N. Y., 130. 1 Chitt. PI, 16 Am. ed., 523. (Slander.) § 1041. Special damages not alleged. — If evidence of special damages not alleged has been received without any objection made before the close of plaintiff's case, it is not error for the Court to allow the jury to con- sider it. Coster vs. Mayor, 43 N. Y., 399, modifying 52 Barb., 276. [The reason is, that the ground for exclusion of special damage not pleaded is to protect against surprise ; and the objection may be waived.] § 1043. J EVIDEKCB TAKElf . CONFORMITY TO KELIBF. 833 § 1042. Oircwmstcmces of aggrcuoation not a/oailable alone. — If the grievance alleged as the cause of action is not proved, plaintiff cannot recover upon proof of cir- cumstances of aggravation alleged merely as such, instead of being alleged as separate and distinct grounds of re- covery. United States Manuf'g Co. vs. Stevens, 52 Mkh., 330; 17 North West. Eep., 934 Trespass in entering real prop- erty. Graves, Ch. J., said : " The substantive cause of action laid in each count is the tortious entry by the landlord on the demised premises during the existence of the tenancy ; and the further circumstances of in- jury, including the putting out and exposure of the wagon hounds, are only matters of aggravation. They are not original and additional causes of action. Their office is purely subsidiary. They can have effect only in case of recovery for the breaking and entering, and their function is then to expand the right to damage vrhich that wrongdoing has raised. [Citing Taylor vs. Cole, 3 Term R., 292 ; 1 H. Bl., 555 ; Dye ve. Leather- dale, 3 Wils., 20; Gelston vs. Hoyt, 3 Wheat. (U. S.), 246, 326, 327 ; Eames vs. Prentice, 8 Cush. (Mass.), 337; Knapp vs. Slocomb, 9 Gray (Mass.), 73 ; Merriam vs. "Willis, 10 Allen (Mass.), 118 ; Howe vs. Willson, 1 Den. (K Y.), 181 ; Herndon vs. Bartiett, 4 Fort. (Ala.), 481.] Unless the pivotal charge of injury is established, or, in other words, unless the breaking and entry is made out, the action must necessarily fail." s. P., Brown vs. Lake, 29 0. S., 64. Bennett vs. Mclntire, 121 Ind., 231 ; s. c, 23 North K Hep., 78, and cas. cit. (Holding that ttiough in an action for trespass to real property plaintiff may recover for debauching a member of his family, he cannot do so if the trespass to real property alleged as the gravamen of the action is not proved, or is justified.) § 1043. Treble and single. — Under the New Proced- ure, a complaint for statutory treble damages should not be dismissed because of failure to prove a case for treble damages, if the facts alleged and proved make a case at Common Law for single damages. Starkweather vs. Quigley, lEun (N. Y.), 26. 834 Abbott's Bsief on Pleadings, Submission Aftee [§ 1044. § 1044. Amending as to damages. — An amendment increasing the amount claimed, but not changing the cause of action, may be allowed at the trial.^ Allegations of special damages for the same cause of action may also be added by amendment if defendant has not been misled.^ ' Dakin vs. Liverpool, etc., Ins. Co., 13 Hun, 122, affd in 77 N. Y., 600 ; Miaghan vs. Hartford Ins. Co., 24 Hun {N. Y.), 58 ; Knapp vs. Eoclie, 62 N. Y., 614, rev'g in part 37 N. Y. Super. Ct. {J. & S.), 395. Tassey vs. Church, 4 Watts & 8. {Pa.), 141 ; s. c, 39 Am. Dec, 65. Hodge vs. Sawyer, 34 Wise, 397. (Omission to demand interest said to be amendable.) [In Carr & Hobson vs. Sterling, 114 N. Y., 558, rev'g 53 Super. Gt. {J. & 8.), 255, it was said that this was so even where a defendant had made default in pleading. Unsound ; for a defendant is entitled to rely on the demand of judgment as limiting the relief if he makes default ; and he is not bound to appear and watch for amendments enlarging the demand.] 'demons vs. Davis, 6 N. Y. Supm. Ot. {T. c& C), 523; mem. of s. c. 4 Hun, 260 ; s. p., Baldwin vs. N. Y. & H. Navigation Co., 4 Daly (JV. Y.), 314 ; Flynn vs. West- mayer, 4 JV. Y. Supp., 188 ; see also s. p.. Miller vs. Gar- ling, 12 How. Pr. {K Y.), 203. Additional wrongful acts of the same kind as that consti- tuting the cause of action and accompanying the wrongful act complained of, although not such as to be admissible as mere matter in aggravation of damages, may be admitted upon amending the complaint by inserting an allegation of them at the trial. Collyer vs. CoUyer, 50 Hun, 422; s. c, 21 State Rep., 118; 3 N. Y. Supp., 310. (Slander. Words spoken at same time and in the same connection as those set forth in the com- plaint, added.) § 1045. Granting legal relief under a complaint of an equitable frame. — Under the New Procedure, a plain- tiff who fails to establish his right to the equitable relief which his complaint demands, may, after answer, recover as on a cause of action of a legal nature to which his § 1046.] Evidence Taken. Confobmity of Relief. 825 allegations and his proofs show him entitled, although he has not demanded legal relief ; provided, however, that no objection to the mode of trial is made.^ If trial appropriate to the legal cause of action is de- manded, the action should not be dismissed, but struck from the calendar or otherwise put in the way of proper trial.^ But under a complaint which states facts constituting a cap.se of action of an equitable nature only, plaintiff cannot recover on proving only a cause of action of a legal nature ; for the facts constituting the legal cause of action should be pleaded, so as to entitle defendant to claim a trial by Jury.* ' Armitage vs. Pulver, 37 N. Y., 494 ; s. c, 5 Tram. App., 186. Williams vs. Slote, 70 N. F., 601. (Complaint for account- ing : recovery for tlie sum due, allowed.) Andrew vs. N. J. Steamboat Co., 11 Hun (JV. Z), 490. (Com- plaint for undivided share in vessel built with plaintiff's materials without his consent : recovery for conversion of materials sustained.) . ' Black vs. White, 37 N. Y. Super. Ct. {J. & 8.), 320. As to retaining an action framed as an equitable one, under the New Procedure, so as to give damages in- stead of dismissing it, see Sternberg vs. McGovern, 56 N Y., 12 ; s. c, 15 Abb. Pr. N. S. 258. N. Y. Ice Co. vs. N. West. Ins. Co., 23 N. Y., 357 ; s. c, 12 Abb. Pr., 414 ; 21 How. Pr., 296 ; Little vs. Webster, 16 N. Y. State Rep., 107 ; Seeley vs. N. Y. Exch. Bank, 8 Daly, 400 [aff'd on this opinion in 78 N. Y., 608]. 'Bradley vs. Aldrich, 40 N. Y., 504.; Wheelock vs. Lee, 74 id , 495 ; De Bussiere vs. Holladay, 4 AU>. N. G. (N. Y.), 111. 8 1046. Granting Equitahle relief under a complaint of a Legal frame. — If a plaintiff fails to establish his right to the legal relief which he has demanded, he may, after answer, be awarded equitable relief to which his 826 Abbott's Beibp ok Plbadikgs. Submission Aftbk [§ 1047. allegations and tis proofs show Mm entitled, -althougli lie has not demanded equitable relief. But under a complaint which states facts constituting only a cause of action of a legal nature, he cannot have equitable relief upon the evidence alone. Stevens vs. Mayor, etc., 84 N. Y., 296. Bulkley vs. Staats, 31 Hun {N. Y.), 157._ (Complaint for board of an infant : judgment enforcing trust for pay- ment allowable.) § 1047. Causes of actio?i of concurrent jui'isdiction. — If plaintiff states a cause of action cognizable in equity as well as at law, a defendant who pleads and goes to trial on the merits cannot, after taking evidence, object as matter of right, that plaintiff has a plain, adequate, and complete remedy at law.' In Equity the Court may in their discretion dismiss such a case, even though no objection on that ground has been taken by defendant, either in pleading or argu- ment.^ It is the better opinion that under the New Procedure it is error to do so, if the complaint is sufficient as a legal action.^ ' Kilbourn vs. Sunderland, 130 U. 8., 505, 514; May vs. Goodwin, 27 Geo., 352. (The objection is rather a ques- tion of convenience than of jurisdiction strictly.) B. P., Stout vs. Cook, 41 m., 447; Cracker vs. Dillon, 133 Mass., 91; Eussel vs. Loring, 85 Mass., 121, 125 (saying that such objection should be made by plea or demur- rer, or should be distinctly stated in the answer); Blair vs. Chicago & A. E. E. Co., 89 Mo., 383; s. 0., 5 West. Rep., 4:49; Lehigh Zinc and Iron Co. vs. Trotter, 43 N. J. Eq., 185, 204; Underhill vs. Van Courtlandt, 2 Johns. Vh. {N. Y.), 339, 369 (the Court say: « It would be an abuse of justice to permit the defendants after a pro- tracted litigation to interpose a preliminary objection at a final hearing"), s. p., Grandin vs. Le Eoy, 2 Paige {N. Y.), 509 ; Le Eoy vs. Piatt, 4 Paige (N. Y.), 77, 81. Green vs. Milbank, 3 Ahh. N. C. {N. Y.), 138. (Holding this rule still applicable under the New Procedure.) § 1049.] Evidence Taken. Conformity of Relief. 827 s. p., Pam vs. Vilmar, 54 Hoio. Pr., 235 ; Adams' Appeal, 113 Pa. St., 449; s. c, 5 Cent. Bep., 135. 'Lewis vs. Cocks, 23 Wall.iU. S.), 466. Mills vs. Knapp, 39 Fed. Rep., 592, 595. Dumont us. Fry (^. D. N. Y., 1882), 13 Beporter, 677. (Say- ing it is the duty of the Court to do so.) Lehigh Zinc, etc., Co. vs. Trotter, 43 iV. J. Eq., 185, 204. Hine vs. City of New Haven, 40 Conn., 478. Eeynes vs. Dumont, 130 TJ. S., 354, 395. ' St. Paul & S. C. E. Co. vs. Eobinson {Minn., 1889), 43 JVorthio. Hep., 75. § 1048. JEquitahle ground for relief equivalent to legal. — A demand for a judgment for a sum of money, or for recovery of possession, may be granted if the allegations and proofs establish the right thereto, although the com- plaint is framed as an equitable action,^ or fails to indicate whether the action was intended as legal or equitable,^ or is framed as a legal action and the recovery is on equitable grounds ; provided the frame of the complaint enabled defendant seasonably to claim his rights as to the mode of trial, otherwise not.^ ' Bell vs. Merrifield, 109 N. T., 202, 207 ; s. c, 14 N. Y. State Bep., 796 ; 14 Civ. Pro. E., 146. (Action to require a special partner in a limited partnership to pay over to a creditor of the firm the amount wrongfully taken by defendant from the assets after insolvency. Trial as an equity cause proper, although complaint only asked for a money judgment.) " Emery vs. Pease, 20 N. Y., 62. (Accounting.) See Hammond vs. Morgan, 101 J^. Y. 179 (recovery of chattel on equitable grounds.) 'Hale vs. Omaha Natl. Bank, 49 N. Y, 626. (Money judgment asked by way of damages : recovery by way of equitable relief allowed.) Wright vs. Wright, 54 id., 437. (Wife against husband.) Zimmerman vs. Schoenfield, 3 Hun (iV. Y), 692. (Eject- ment : removal of cloud on title allowed.) § 1049. Legal case proved under complaint in equity. If in a cause of an equitable nature tried as such with- 838 Abbott's Bkief os Pleadings. Submission After [§ 1050. out a jury, plaintiff fails to prove anything more than a cause of action of a legal nature, he cannot have Judgment thereon against defendant's objection that he, defendant, is entitled to a jury trial.^ Such an action may be dismissed, leaving plaintiff to sue upon the same facts for legal relief.^ • Brinckerhoff vs. Bostwick, 106 N. Y., 567, 572. _ So in an action for reformation of a contract, if plaintiff fails to prove any ground for reformation he cannot take judgment on the contract as in an action of a legal nature by claiming that its legal construction is the same as if it had been reformed. Oakville Co. vs. Double Pointed Tack Co., 106 N. Y., 658. ' For instances, see Trustees of Columbia Col. vs. Thacher, 87 N. Y, 311; s. c, 10 Abb. N. C.,_235. (Eefusal to enjoin breach of covenant after circumstances had changed.) Wiedersam vs. Naumann, 10 Abb. W. C, 149. (Eemedy for infants whose land has been sold under a void judgment, is not in equity, but by ejectment.) § 1050. — hy defendant's eviderice. — If in a cause of an equitable nature tried as such, defendant shows that plaintiff has only a cause of action of a legal nature, plain- tiff cannot object to submitting the cause for judgment on the ground that he has a right to a jury trial, for he himself chose his forum. Davison vs. Associates of Jersey Co., 71 N. Y., 333, 340. § 1051. Equitable case proved under complaint ap- propriate to legal action. — If, under a complaint in a form appropriate to an action of a legal nature, plaintiff proves without objection equitable grounds entitling him to the relief demanded, it is too late at the close of the trial for defendant to object that the case ought to have been tried as an equity cause, and that the complaint will not sup- port a recovery. § 1003.] Evidence Takek. Conformity ov Eelibf. 839 King vs. Van Vleck, 109 N. Y., 363 ; s. c, 12 Centr. Bep., 311. s. P., Western E. Co. vs. Bayne, 75 iV: Y., 1. § 1052. Legal or equitable relief on same transaction. — When the complaint states facts giving an equitable cause of action and also a legal cause of action arising out of the same transaction, the party is entitled to have both tried if necessary to obtain his rights.* If defendant has no right to a different mode of trial as to either cause of action than the mode which the plaintiff is pursuing, it is error to dismiss the action if either ground of recovery has been substantiated by evi- dence.^ If the cause of action established is such that defen- dant is entitled to trial in a different mode from that which plaintiff is pursuing, it is error to dismiss the action ab- solutely, but plaintiff is entitled to have the other cause of action tried in the mode appropriate to it.^ ' Sternberger vs. McGovern, 56 N. Y., 12 ; s. c, 15 Abb. Pr. N. 8., 257, rev'g 4 Daly, 456 (below cited). Wright vs. Wright, 54 N. T., 437, affg. 55 Barb., 505. (Action by wife against husband on promissory note. Held, that the objection that the action should have been in equity was not available, the complaint having alleged all the facts and the facts having been proved ; objection to the frame of the action could not avail at the trial. Eeynolds, J., says : " All that is needful is to state the facts sufficient to show that the plaintiff is entitled to the relief demanded, and it is the duty of the Court to afford the relief without stopping to specu- late upon the name to be given to the action." [Citing Marquat vs. Marquat, 12 N. Y,, 836 ; Emery vs. Pease, 20 N. Y., 64 ; Corning vs. Troy Iron and Nail Factory, 40 id., 207 ; Corn Exchange Ins. Co. vs. Babcock, 42 id., 593.] » Williams vs. Slote, 70 N. Y., 601. (Holding it error to dismiss the action in such case. " Whether the cause of action was legal or equitable, the defence to it and the mode of trial were the same, and in case plaintiff succeeded, the relief would be the same, i.e., a judg- ment for money ; and in such case it would be errone- 830 Abbott's Bkief on Pleadings. Submission Aftek [§ 1053. ous for a referee, even upon objection made upon trial, to dismiss the complaint on trial, because the cause of action was legal rather than equitable, or vice versa.") ' Sternberger vs. McGovern, 56 N. Y., 12 ; s. c, 15 Abb. Pr. N. 8., 257, rev'g 4 Daly, 456. (Action for specific per- formance and for damages, suificient facts being stated to sustain each cause of action. Hdd, that on failure to prove facts entitling plaintiff to equitable relief, it was error to dismiss the action under the old rule leaving him to a new action at law, but he was entitled to a trial of the claim for damages, although that might require a different mode of trial.) Compare Beck vs. Allison, 56 N. Y., 366 ; s. c, 15 Am. li., 430, rev'g 4 Daly, 421. (Holding that if plaintiff alleges a cause of action of an equitable nature and de- mands equitable relief, he cannot on failing to establish that claim, have judgment for legal relief on the same transaction, on the strength of evidence of additional facts necessary therefor proved at the trial, but not al- leged in the complaint ; but the complaint should be dismissed, unless amendment and a new trial of the same action is necessary to save the statute of limita- tions, and if so, the complaint should not be dismissed, for the Court may allow amendment, and a new trial as a common-law case.) § 1053. Equitable awoidance of defence to legal claim. — When plaintiff invokes equity in order to establisli an affirmative cause of action, he must set forth in his complaint the facts upon which he bases his claim to equitable relief.^ If, however, his allegation and proof make out a prima facie case of a legal nature, and the existence of facts requiring him to resort to equity is set up as an affirmative defence, he may without reply show an equit- able avoidance of the defence.^ ' McClung vs. Foshour, 47 Hun {N. Y .), 421. (Eeversing judgment for allowing recovery on such facts under such a complaint.) ' Id. {ddctum,.) § 1054. Necessary aUeaaiions of fact. — If plaintiff § 1055.] Evidence Taken. Confokmiiy of Belief. 831 alleges only facts entitling him to legal relief or only- facts entitling him to equitable relief, he cannot, on failure to make out a case for such relief, proceed in the same action for the other kind of relief without amend- ment. See cases under § 1027. § 1055. Equitable relief as to part, and damages as to part. — In an action of an equitable nature for specific performance, the Court may in furtherance of justice decree damages in lieu of specific performance as to one part and specific performance as to the other part of the agreement. Post vs. West Shore E. E. Co., 50 Hun, 301 ; s. c, 3 N. Y. Supp.,n2; 20 State Bep., 180. (Distinguisliiiig Uline ■ys. (the New York Central and Hudson Elver Eailroad Com- pany (101 JSf. Y., 98) as not in conflict with the views ex- pressed, as that was not an action in equity, and saying that such distinction is recognized by the opinion of Judge Eael in these words (p. 121): " The case of H3nderson vs. New York Central Eailroad Company (78 N. Y., 423) is not in conflict, as that was an equi- table action, and in the opinion written in that case the rule is recognized to be otherwise in actions at law ; and the case of Mahon vs. New York Central Eailroad Company is expressly recognized, and it certainly was not intended to overrule or depart from it or any of the prior authorities.") § 1056. Equitable defence and count&rclaim. — Un- der an equitable defence sufficient to defeat the action, with a prayer for affirmative relief which the absence of necessary parties prevents granting, the defence may prevail, but the demand for affirmative relief cannot. Harris vs. Vineyard, 42 Mo., 568. The defence cannot prevail if affirmative relief is essen- tial. Carman vs. Johnson, 20 Mo., 108. 833 Abbott's Brief on Pleadikgs. Submission After [§ 3.050. § 1057. Equitable defence lets in plai7iUff^s equities. — One who sets up an equitable defence to a Common -Law action is in the position of a suitor in equity so far as that the equities of both parties must be considered. Hoppaugh vs. Struble, 60 iV: Y., 430. § 1058. Affirmative relief in favor of defendant. — Under the New Procedure defendant cannot have affirm- ative relief as against the plaintiff unless he pleads the facts entitling him to such relief by the way of counter- claim.' This rule does not, however, in an action of an equi- table nature, prevent the Court from granting relief to plaintiff upon condition of the performance of such acts as may be necessary in order to do equity to defendant.^ ' Wright vs. Delafield, 25 N. Y., 266. (Action to stay suits on certain notes, and for an accounting between stock- holders of a voluntary association. The answer only alleged matters in defence, and prayed for no relief. Held, error to decree that plaintiff pay the notes in specific performance of the agreement for which they were given.) s. P., Dale vs. Newman, 12 Nebr., 221, 224. Thus where the answer in an action on an award im- peached the award without impeaching the contract of submission, — Jield, that defendants on prevailing were entitled to have the award adjudged void, but not to have the submission vacated. Hiscock vs. Harris, 80 N. Y, 402. ' Beach vs. Cooke, 28 JSf. Y., 508, aff'g 39 Barb., 360. Walden vs. Bodley, 14 Pet. {U. S.), 156. § 1059. Rights of defendants in default. — The rules allowing judgment after answer, without strict regard to the demand of relief, do not enable a plaintiff to have re- lief greater than that demanded in the complaint, if any of the defendants whose rights would be affected by such relief have not answered. § 1062.] Evidence Taken. Confoemity of Relief. 833 Briggs vs. Oliver, 68 N. Y., 336. {So held irrespective of the fact that relief might be for their interest.) § 1060. Relief hetxoeen co-defendants^ — Omission of demand and service. — If co-defendants have litigated a question between themselves, without objection being made by either to the fact that there was no demand of relief in the answer of one as against the other, nor service on the latter, the Court may give judgment notwithstand- ing such omission, for the demand of relief and service of answer may be waived. Eiley vs. Sexton, 32 Hun {N. Y.), 245 ; Syracuse Sav'gs Bk. vs. Porter, 86 id., 168. But to make the adjudication a bar as between them there should be amendment. See Milwaukee, etc., E» E. Co. vs. Chamberlain, 3 Wall. {U. S.), 704. s. p., Fairchild vs. Lynch, 99 N. Y., 359 ; s. c, 2 North East. Bep., 20, 23. In Grant vs. Phoenix Mut. Life Ins. Co. {U. S., 1887) a de- cree was held not an adjudication barring a subsequent^ action, although the defendants in the present bill had,, by answer to the former bill, set up their claim against the present plaintiff, the defendant in that previous bill, and consented to the relief demanded therein. § \0Ql.—^l7i case of plaintiff's failure. — If the plain- tiff is not found to have a cause of action, the action can- not properly dispose of rights between the co-defendants not related to the cause of action disclosed in the com- plaint. Hall vs. Ditson, 5 Ahh. N. C, 198, 214. g 1062. — Incidental relief hePweenco-defendantSjinvolved in shaping plaintiffs relief. — The Court may mould the relief granted to the plaintiff by such qualifications as to> the mode of effecting it as are dictated by equitable prin- ciples in view of the relative rights and liabilities of the- several defendants as presented on the trial, although so> 834 Abbott's Brief on Pleadings. [§ 1063. doing may amount incidentally to relief as between them, and neither has demanded such relief by answer served on the other. Dobbs vs. Mebuhr, 3 ']V. Y. Supp., 415. (Not necessary that junior mortgagees should serve a copy of their an- swers on the mortgagor or owner of the equity of re- demption in order to entitle them to obtain a provision in the decree of sale that the property shall be sold in one piece instead of in parcels.) BuUymore vs. Seward, 15 Weekly Dig., 283. (Answer by one of several defendants in foreclosure, which merely asks that a certain portion of a mortgage held by him be declared a prior lien to the plaintiif's, need not be served on the other defendants.) In Doble vs. Manley {Gh. Div., Feb. 1885), 33 W. B., 409, the Court, in foreclosure, refused to fix different periods for redemption for different defendants who were in de- fault. The judges were agreed that, " where the mort- gagor and subsequent mortgagees do not appear, one time only should be fixed, whether the statement of claim al- leges that the defendants are entitled, or only that they claim to be entitled, to mortgages on the property. To fix several times would be to make a decree as between co-defendants, which ought not to be granted except upon the request of a defendant." 11, Amendment. § 1063. Hovj latemay he allowed. — An amendment to the pleadings may be allowed at any time before final submission of the case to the jury,^ or (in a case tried by the Court) to the judge.^ [For other cases, see §§ 970-978.] ' Holcraft vs. King, 25 Ind., 352. (Implying that in a case tried by a judge it may not be too late before finding.) " Hamilton vs. Southern Nev. G. & S. Min. Co. (C. C. D. JSTev.), 33 Fed. Rep., 562. (During argument.) Burns vs. Fox, 113 Ind., 205; s. c, 14 N. East. Rep., 541. (After argument.) THE END. INDEX. In the Table of Contents prefixed to the volume, as in the body of the ■work, the reader will find the rules of law, indicated in a practical order as they are applied in litigation, those which prevail on demurrer being sepa- rated from those different rules on the same subject which prevail in the several stages of the trial of an issue of fact. In this Index the rules prevailing at whatever stage, in reference to any one subject are collected under that subject, those applied on Demurrer being distinguished when necessary for preventing confusion, by the letter (d). ABANDONMENT, of contract not let in by denial, p. 675, §820. of license not let in by denial, p. 758, §964, n. ABATEMENT, degree of certainty required in pleading, p. 374. answer in, must not be inconsistent with other defences, p. 383, §460, n. [but see In- consistency.] in citizenship cases, p. 311, §§383. denial of citizenship, p. 603, §610. former suit still pending, p. 373. §449. burden of proof as to jurisdiction (D), p. 505, §614. as waived by plea to merits, p.-561, §661. plea of misnomer waived by plea in bar, p. 737, §936. ABBREVIATIONS. General rule a.S to use and expIanation,(D), p. 122, §129. allegation of meaning, p. 639, §763. in name, in case of verified denial, p. 529 §624. as a variance, p. 761, §966, n. ABILITY, implied by allegation of offer (D), p 45 §50. ACcTePTANCE of bill implies writing, p. 123, of bond appears sufBciently from exhibit, of work under a contract, p. i^^'P^^r delay as a bar in equity (D). p. 196, §218, n. ACCORD AND SATISFACTION. Must be specially pleaded, p. ^0, §765. lets in evidence of payment, p. 640, §766. not admissible under allegation of pay- ment, or set off, p. 750, §950. "ACCORDING TO LAW," when a mere con- clusion, (D), p. 227, §255; compare, p. 863, not according to law, a mere conclusion, p. "According to the statute," see p. 282, §344. ACCOUNT, distinguished from bill of particu- einwaf form'of pleading indebtedness on, "-iiUtlv'due. " P. 125« §132. .^^ orTarticulars coupled with pleading, p. 125, e^iot'of failure to serve copy of account mentioned in pleading, P- MO, §767. effect of serving oopyj P- ^il' ' Bdi 6769 sworn account from abroad, p. 641, §769. necessity of verifying denial pp. 517, 520, ^proving balance, p. 641, §770. mistake in, how alleged, p. 255, §295, n. amending to substitute account stated not allowed, p. 764, §970 n. ACCOUNTABLE RECEIPT, necessity of veri- fied denial, p. 620, §615. ACCOUNTING when action for lies (D), pp. 93- 101, §§105-109. equity jurisdiction (D), p. 92, 8105. attorney's action for, not in equity (D), p. 102, §111, n. 2. equitable ground for relief equivalent to legal, p. 827, §1048. interests of several combined for purpose of giving jurisdiction of amount, p. 309, 8380, n. indefiniteness in bill for, p. 61, §65, n. particulars of the account admissible under general allegation, p. 643, §774. alternative grounds, p. 88, §100. action against administrator with demand of individual relief (D), p. 331, §411 n. against administrator and individually, p. 366, §435, n. delay as a bar in equity (D), p. 196, §218, n. offer to do equity in suit for (D), p. 266, §319. necessary demand of rehef (D), p. 113, §120. under prayer for general relief, p. 819, §1037. prayer for cancellation of instrument (D), p. 333, §413, n. ACCOUNT STATED, promise need not be alleged (D), p. 142, §161. must be pleaded as such, p. 642, §771. effect of pleading, p. 642, §773. evidence under general denial, p. 643, §773. account stated and original consideration may both be submitted to jury, p. 777, §986. ACKNOWLEDGMENT alleged by giving copy (D), p. 205, §204, n 3. of contract (D), p. 144, §164. or new promise, when requires of verified denial, p. 520, §615. competent evidence of execution under sworn denial, p. 709, §870. ACTION [see also the familiar name of the cause of action, as Conversion, Fore- closure, etc.] of first impression, p. 80, §94. transitory between non-residents, p. 567, §670. colorably brought in federal court, p. 603, §610. amending equitable action as to ground or relief, p. 767, 8970 n. amending into legal action, p. 767, §970 n. 835 836 INDEX. A\ p. 40, §46. 838 INDEX. ALLEGATIONS— Continued, description as an allegation (D), p. 41,' §47. clerical error (D), p. 42, §48. grammatical ambiguity, (D), p. 44, §49. fact necessarily implied (D), p. 45, §50. fact not necessarily implied (D), p. 47, §51. fact presumed by law from what is alleged (D), p. 47, §53. presumption of continuance of fact (D), p. 50, §53. legal fiction (D), p. 51, §54. matters judicially noticed (D), p. 52, §55. pleaders notice not regarded, p. 450, §545. allegation in conjunctive form implies same time for each fact (D), p. 194, §215. inconsistency (D), p. 872, §336. — between general and specific (D), p. 26, §33. — between several defences (D), p. 382, §160. — with legal presumption, p. 452, §547. impossibility (D), p. 29, |38. 5. Materiality and imTnateriality. what is, p. 438, §536. materiality as inviting issue, p. 437, §536. — caused by course of trial, p. 617, §737. immaterial, p. 26, §33; p. 83, §97. — not admitted, p. 462, §561. irrelevant, p. 615, 734. relevant not prejudiced by irrelevant, p. 616, §735. 6. Aider [See also Aider.] allegation supplied by reference to another count or defence, p. 72, §82. — by exhibit, p. 222, §25. though immaterial may aid adversary, p. 564, §6o2. whole must be taken when claimed to aid adversary, p. 554, §651. 7. Wliat admitted by demurrer. immaterial allegation, p. 26, §32. general allegation and inconsistent specific allegations, p. 26, §33. conclusions of fact which the details do not sustain, p. 27, §34. fact not alleged, p. 27, §35. fact judicially noticed, p. 28, §36. prediction, p. 28, §.37. impossible tact, p. 29, §38. damages, p. 39, §39. conclusions of law, p. 29, §40. construction of writing, p. 31, §41. 8. What invite issue or let in evidence. conclusion of law, p. 435, §533. what is a fact and what a conclusion, p. 437, §534. treating insufficient allegations as issuable, p. 437, §.>35; p. 609, §724; p. 620, §742. , material allegations, p. 437, 536. by virtue whereof "virtute oujus," p. 438, §537. hypothetical allegation, p. 439, §538; p. 610, §527. allegation of contents of document, p. 440, §539. allegation of amount or value, p. 440, §540. express admission, p. 446, §541. approximate amount, etc., p. 446, §542. several grounds for one recovery, p. 446, §543. ground of recovery or defence implied but not alleged, p. 449, §544. motive of pleader cannot countervail plead- ing, p. 4.50, §545. formal allegations required by rule of court, p. 451, §546. presumption inconsistent with allegations, p. 452, §547. inconsistent protestation does not preju- dice, p. 452, §548. denial of anticipated defence does not change burden of proof, p. 453, §549. excluding evidence because of insufficiency of complaint, p. 608, §722. essential fact not alleged, p. 609, §723. defective allegation, p. 609, §784. uncertainty as to theory, p. 610, §735. unsupported conclusion, p. 613, §788. clerical error, p. 613, §789. statutory fiction or presumption, p. 614, §730. judicial notice, p. 614, §731. several titles to same property, p. 615, §732. generality of allegation of matter in pliead- er's knowledge, p. 015, §733. irrelevant allegation, p. 615, §734. relevant allegations not prejudiced by irrel- evant, p. 616, §735. changing line of proof : Alternative, p. £17, §736. materiality caused by the course of the trial, p. 617, §787. duplicity not ground for exclusion, p. 618, §738. rights to costs and injunction, p. 619, §739. counterclaim and set-off, p. 619, §740. liberal interpretation, p. 630, §741. minor objections waived by entering on evi- dence, p. 620, §742. • state Practice in U. S. Court, p. 607, §721. ALTERATION, proving under unsworn de- nial, p. 705, §864. ALTERNATIVE allegation (D), p. 40, §46. in respect to knowledge of party pleading. (D), p. 501, §609. grounds for recovery (D), p. 84-101. — mistake or fraud, p. 740, §930. sources of title, (D), p. 270, §325. contract, how alleged, p. 664, §806. allegation for statute penalty (D), p. 5, §6. lines of proof at the trial, p. 617, §736. alternatives may be submitted to the jury. p. 617, §736; p. 7T6, §98.5. relief, (D), p. 87, §100; p. 115, §123. AMBIGUITY in pleading (D), p. 38, §42. in complaint (D), p. 88, §95, n. as to cause of action submitting to the jury. p. 776, §984. •" necessity of explaining, p. 206, §231. uncertainty, p. Ill, §119. as ground of demurrer, p. 60, §65, n. as to whether answer is intended as a counteiclaim or mere defence, p. 540. §641, n. ' AMENDING, inherent power, p. 770, §974. power of U. S. Court, p. 771, §978. of course in U. S. Court, p. 23. §88. n. 10, how late may be allowed, p. 10, §1063. amending demurrer, p. 21, §26. under special demurrer, p. 5, §6. amended pleading supersedes original, (D), p. 14, §18; p. 423, §514. — requires fresh exhibit, (D), p. 826, §263. — not so designated (I), p. 434, §616. made by stipulation, p. 431, §929. amended, instead of supplemental pleading and conversely, p. 719, §§887, 888; p. 801, amending bill of particulars, p. 771, §977. not precluded by stipulation to try issue, p. 770, §975. leave to amend does not supersede waiver of jury, p. 771, §976. variance a question for court, p. 759, §965. immaterial variance disregarded or cured by amending, p. 759, §966. proof of surprise, p. 762, §967. previous knowledge does not disprove sur- prise, p. 763, §968. previous knowledge ground for refusing amendment, p. 76.3, §969. amending as to cause of action, p. 764, §970 INDEX. 839 not allowed on failure to prove assignment of cause of action, p. 651, §785. in equitable action for an accounting, p. 643, §T74. as to defences, p. 768, §971 ; p. 781, §998. to defeat motion to dismiss for insumcienoy, p. 581, §688. to get rid of concession, p. 433, §530. to cure hypothetical or contingent allega- tion, p. BIO, §786. as to capacity, p. 768, |972. to cure mconsistency, p. 551, §649. to cure want of jurisdiction, p. B69, §671, n. ; p. 576, §683. to let in accord and satisfaction, p. 640, §765. to let in excuse for non-performance of condition, p. 608, §812. to let in document, p. 701, §853. to cure variance between exhibit or alleg- ation, and original document, p. 703, §858. — to allege fact implied, p. 770, §973. to include facts intended to be proved but not expressl.y alleged, p. 450, 451, §5-^5, n. Amendment, as to cartacity in which parties sue or are sued, p. 813, §1030. amendment, to state agency by which act was done, p. 646, §779. to cure misnomer, p. 739, §928. allegation of citizenship, p. 504, §611, u. date, p. 687, §841. clerical error, p. 42, §48. title, p. 756, §960. under statutes requiring sworn denials, p. 537, §636. by adding specific denial where general de- nial is not allowed, p. 470, §577. in circumstances of fraud, p. 726, §902. from asking cancellation from fraud to aslc- ing lien for purchase money (D), p. 87, §100, n. claim in respect to amount, p. 650, §784; p., 824. §1014. adding general prayer for relief, p. 820, §1037. n. by adding counsel's certificate (D), p. 100, §117. — , of record though made pendmg suit com- petent evidence, p. 720. §890. AMOUNT involved as effecting jurisdiction, p. 303, ^370. — in chancery, (D), p. 62, §67. necessity of allegation to make case for equity interference, p. 4,51, §546. _ amending allegation to show jurisdiction, p. 577, §083. — to increase claim, p. 650, §784. allegation of amount or value, p. 440, appro'ximate or indefinite allegation, p. 446, §542; p. 642, §782. „ ^. ,^ . evasive or argumentative allegation (D,) p l.SO, §139, clerical error in, (D), p. 43, §48. supplied by reference to another count, (D), variance between allegation and proof, befwwn bill 'of particulars and evidence, of^damages under general allegation, p. 678, admission by demurrer, p. 29, §39. plaintiff need not prove full amount, p. 783, controverted under general denial, p. 633, ANCILLARY BILL, jurisdiction of citizenship ANIMALsfamemhnent as to negligence in ANNES!f^documa''as exhibits, p. 205, etc. [And see Documents.] ANOTHER ACTION, pending (D), p. 373, §448. [And see AbatementTI ANSWER. For general principles as to alle- gations and their sufficiency, see Allega* tions and Complaint; see also tsupple- niental Answer. As to objections to suf- ficiency, see also rules applicable to com- plaints, pp. 4-293. 1. In general. distinguished from demurrer, p. B, §10. of infant, failure of to deny, not an admis- sion, p. 470, §569. infant's general answer [see Infant]. individual by person joined in representa- tive capacity also, p. 366, §436. of disclaimer, p. 461, §560. what kind of allegations invite an issue, p. 435, §533, etc. single, to several counts, etc. (D), p. 375, §450. several defences in one (D), p. 376, §451. facts common to several defences, how stated (D), p. 72, etc. effect of bill of particulars (D), p. 376, §452. document required by statute to be filed, etc. (D), p. 377, §453. — " foundation of defence " CD), p. 378, §454. — , defendant's use of plaintiff's exhibit (D), p. 378, §455. necessary allegations as to exhibit filed or annexed (D), p. 232, §251. excuse for not furnishing exhibit (D), p. 225, fiS-i. failure to meet plaintiff's avoidance of an- ticipated defence (D), p. 379, §4r)6. equitable defences (D), p. 879, §457. equitable bar without aJfirmative relief (D), p. 380, §458. defences in V. S. Courts on equitable grounds (D),_p. 381, §459. inconsistency (D), p. 381, §460. denial and separate admission, p. 588, §699, may contain inconsistent defences, p. 549, etc. in abatement as a waiver of defence on the merits, p. 501, §601. may set up misnomer with other defences, p. 738 §9^6. what defences waived by not pleading them, p. 558, §059. defendant may attack declaration or com- ■ plaint, p. 384, §461. — aider of complaint on demurrer to an- swer, p. 386, §462. aided by reply, or replication, p. 652, §650. may aid complaint, p. 552, §650. insufticiency as ground for excluding evi- . denee, p. 608, §722. not regarded on motion to dismiss, p. 580, §687. limits defendant's success, p. 802, §1027. 8. Denials. mere denials when demurrable, p. 387, §463. statutes requiring sworn denial (D), p. 388, §404. facts provable under the general issue (D), p. 389, §465. 3. iVew? Matter considered as constituting a mere defence. justification must state facts in detail (D), p. 391, §466. partial defences purporting to meet the whole cause of action (D), p. 391, §467. the same, purporting to meet only a part (D), p. 392, §468. facts constituting mitigation necessary (D), p. 393, §469. 840 INDEX. ANSWER— Co»«?iMed. of facts after suit not demurrable, p. 393, §470. mere defence not demurrable because of unnecessary demand of affirmative relief, p. 393, §471. defensive answer aided by complaint (D), p. 394, §472. 4. JVeio Matter pleaded as constituting a counterclaim or ground of affirmative belief. objection to sufficiency (D), p. 395, §473. — availability (D), p. 395, §474. — in actions for specific relief, etc. (D), p. 39,5, §475. , — in action for money demand.— Counter- claim of specific relief (D), p. 396, §476. — contract and tort, etc. (D), p. 397, §477. — double-faced cause of action (D), p. 399, §478. — counterclaim as on contract by waiving tort (D), p. 899, §479. — alIeg:ation of " same tran.s;actions " (D), p. 400, §480. time of accruel or vesting (D), p. 400, §481. omission to ask affirmative relief (D), p. 400, §48a. want of jurisdiction (D), p. 401, §483. counterclaim not aided by complaint (D), 401, §484. 5. Demurrer to answer, in general, p. 374, etc. defendant cannot demur to co-defendant's answer, p. 40-.!. §485. ANTICIPATED DEFENCE, avoidance in com- plain t admitted by pleading^ defence with- out denying avoidance, p. 467, §567. ANTICIPATORY REFUSAL to perfoi-m con- tract, p. 173, §190; p. 179, §197. APPEARANCE, an issuable allegation, p. 131, §140. as a waiver of objection to jurisdiction (D), p. 11, §13; p. 319, §396. not necessanly a waiver, p. 569, §673. APPLICATIONS at the trial, p. 667, etc. dismissal for insufficiency, see p. 579, etc. motion for judgment on the pleadings, see p. 586. motion to compel election, see p. 590, etc. APPREHENSION. allegati..n of (D), p. 28, §37. ARGUMENTATIVE ALLEGATION (D), p. 49, §52 ; p. 78. §91. — of amount (D), p. 130, §138. ARREST, allegation of ground as affecting cause of action, p. 338, §415, n. *' AS," indicating capacity or description (D), p. 332, §399. — equivalent to which (D), p. 36, §42, n. 4 : p. 37, n. 5. " AS THE LAW REQUIRES " (D), p. 263, §313. ASSAULT, joinder of several cause of action with joint, p. 352, §431, n. ^, joinder with injury to property (D), p. 3.35, §414, n. joinder with defamation (D), p. -335, §414, n. ASSESSMENT, not shortly pleaded as an in- strument for payment of mioney (D), p. 180, §198. — , pleaded by reference to books (D), p. 54, §56, n. grounds for regarding as cloud on title (D), p. 81, §95. showing compliance with statute (D), p. 280, §342. n. 1. ASSIGNEE in insolvency, allegation of ap- poini:ment (D), p. 244, §284, n. in bankruptcy, ownership of Claim, p. 65, §73. — "as" designating, p. 382, §399. for benefit of creditors; waiver of objection to want ot legal capacity to sue, p. 657. §793. n. ASSIGNMENT, mode, p. 131, §141. consideration, p. 133, §142. time, p. 132, §143. delivery of (D), p. 144, §164. leave, p. 133, §144. principal and accessory obligation, p. 133. §145. assignment must be proved if alleged, p. 651, §785. amendment setting up, p. 652, §786. etc., by plaintiff's assignor before assig^n- ment to plaintiff competent under denial, p. 653, §787. evidence that plaintiff is not real party in interest, p. 753, §954. indorsements of, etc., on exhibit filed or annexed (D), p. 816, §243. of instrument for payment of money (D), p. 269, §32J. necessity of verified denial, p. 508. §615. presumption of continuance (D), p. 51, §53, n. to attorney intending to sue (D), p. 37, §34. assignee not necessarily entitled to sue in equity (D), p. 104, §113. not ground for going into equity (D), p. 91, §103, n. alternative ground for recovery against one or both assignees (D), p. 89, §100, n. 2. of claims as affecting value and giving jurisdiction, p. 308, §380. as affecting jurisdiction in citizenship case, p. 315, §389. ASSOCIATION (or joint stock company) showing power to sue under the statute (D), p. 281, §348, n. 2. suing for legacy to treasurer (D), p. 65, §73. general denial puts existence in issue, p. 654, §788. ASSUMPSIT, allegation of promise (D), p. 57, §59. separate counts on fixed price and quantum. meruit (D), p. 75, §86. ASSUMPTION CLAUSE, allegation of non- payment (D), p. 175, §193. ATTACHMENT, remedy to enforce in equity, p. 108, §116. n. proceedings how pleaded (D), p. 201, §236: p. 204, §829, n. and levy (D), p. 246, §215, n. ATTORNEY, buying with intent to sue (D), p. 27, §34. inherent authority to elect between causes of action, p. 606, §718. power to consent to amendment, p. 431, §688. AUDIT, demand, presentation, or notice, etc., required by statute must be alleged (D), p. 133. §146. Time of presentation (D), p. 135, §147. allegation of rejection (D), p. 47, §51. AUTHORITY of agent, p. 663, §803. statutory (D), p. 135, §148. corporate power to act (D). p. 185, §805. relation ot husband and wife (D), p. 135, §149. revocation (D), p. 336, §150. allegation of act by agent imports his au- thority, p. 6S4. §789 : (D), p. 45, §50. ratification, p. 655, §790. mode nf verified denial of execution by agent, p. 530, §685. of corporate offlcers in case ot verified denial of execution, p. 532, §627. dispioof under general denial, p. 648, §781. AVERMENT, see Allegation. AVOIDANCE, confession by, p 546, §645. coupled with admission, p. 458, §556. in form of counterclaim, p. 539, §640. INDEX. 841 -and denial both submitted to jury, p. 778, §988. of defence by anticipation, p. 120, §188. equitable, of defence to legal claim, p. 830, §1053. — proving as part of plaintiff's case, p. 786, §999. — defence admitted by pleading the de- fence, p. 467, §567. — defence may admit the facts, p. 557, §655. — effect of not meeting it by answer, p. 379, §456. -of mere defence by proof of estoppel, p. 715, §880. — by fraud though not pleaded, p. 728, §909. byjnistalce though not pleaded, p. 741, arising pending suit and defeating defence, p. 721, §891. AWAKD, allegation of making (D), p. 145, §164, n. and contract on which it was had, and election between, p. 595, §705. how impeached (D), p. 255, §a93, n. BAILMENT, answer of lien (D), p. 30, §40. BALANCE of account, and disproving, p. 641, §770. BANKER, accounting in equity not required (D), p. 97, §106, u. "BEING" when equivalent to "was," p. 41, §47. BELIEF, allegation on (D), p. 53, §58. BILL IN EQUITY. See also the subject of the suit or of the allegation, avoidance of defence (D), p. 467, §567, n ; p. 120, §128. BILLS, NOTES AND CHECKS [as to demand, see Demand! action to recover back in equity (D), p. 91, §104. amending into foreclosure not allowed, p. 766, §970, n. mistake in description of (D), p. 82, §96, n. necessity of alleging consideration, p. 15.3, §173. illegality of consideration when available, p. 792, §1010. amending to allege original considera- tion, p. 764, §970, n. allegation of acceptance (D), p. 123, §130. necessity of verified denial of signature, p. 523, §616. Authority of corporate ofScers in case of unverified denial, p. 532, §627. indorsements as on exhibit annexed or filed (D), p. 216, §243. allegation as to transfer before maturity, p. 452, §547. — of ownership (D), p. 48, §52. statute requiring denial of receipt of notice of protest, p. 528, 8622. usuage when must be pleaded (D), p. 158, §178. different capacity of promisor, p. 364, §435. ioinder of parties severally liable on the same, p. 368, §441. action against maker and indorser, and against indorser, only, p. 355, §431, n. — equitable claim for release of mortage (D), p. 345, §422. ■election between original and renewal note, p. 592, §704. J ^ count on promise to pay, and count on acceptance, and election between, p. 594, §704, n. anticipatory refusal (D), p. 179, §197. interest when recoverable though not dis- tinctly claimed, p. 821, §1039. judgment for one and against the other party, p. 814, §1032. BILLS OF LADING, necessity of verified denial, p. 5al, §615. BILL OF PARTICULARS. Not considered on demurrer, p. 136, §151 ; p. 376, §452. not part of pleading (D), p. 125, §133. evidence beyond bill not admissible, p. 633, §743. need not repeat what is in the pleading, p. 624, §744. cannot enlarge or change cause of action, p. 624, 8745. indeflniteness, p. 625, §746. several counts and one bill, p. 627, §747. matter in avoidance of the adversary's case, p, 627, §748. admission is not conclusive, p. 817, §1036, n. effect of variance between bill of particu- lars and evidence, p. 628, §749. amendment of, p. 771, §977. voluntary bill, p. 639, §750. unversifled bill, p. 629, §751. effect of failui'e to serve, p. 630, §753. as evidence, p. 630, §753. against part of defendants (D), p. 12, §14. BLANK in necessary date (D), p. 193, §214, n. BOARD jurisdiction to make determination or order (D), p. 245, §284. BONA FIDE PURCHASER. Conclusion of law (D), p. 137, §152. without notice, necessary allegation, p. 646, §777. general denial, p. 655, §791. admission of purchase coupled with alle- gation of knowledge, p. 457, §5.55. eltect of plaintiff's alleging notice, p. 469, §567, n. BOND, wlien leave to sue in name of people must be alleged (D), p. 249, §287. allegation of making (Dj, p. 145, §164, n. a written instrument to be filed or annexed (D), p. 208, §233. what is foundation of action on (D), p. 210. §236. given pursuant to statute (D), p. 277, §340, n. allegation of performance of condition pre- cedent (D), p. 167, §185, n. — of breach (D), 176, §194. non-payment (D), p. 175, §193. allegation of liability, p. 30, §40. * joinder of joint obligees, p. 367, §439, n. joint and several, variance as to parties, p. 704, §858, n. allegation of joint, and proof of several obligations, p. 814, §1032, misjoinder of causes of action affecting different parties, p. 353, §431. performance of condition (D), p. 160, §179 n., §180, n. interest when recoverable though not dis- tinctly claimed, p. §1039. BOOK ENTRY, necessity of verifying denial, p. 517, §615. Breach of condition precedent in contract, p. 667, §R10; p. 672, §816. by defendant as excuse therefor, p. 676, §822. anticipatory refusal to perform, (D), p. 173, §190. — necessity of allegation, on money con- tracts, p. 174, §191. — in otliers actions, p. 175, §192. — general allegation, p. 175, §193. — allegation in terms of contract, p. 176, §194. — exception or proviso, p. 177, §195. — several parties indebted, p. 177, §196. — disabling one's self: anticipatory refusal, p. 179, §197. ^ Breach resulting damages, see Damages, breach, and tort in representations, etc. (D), p. 340, §417, n. BREACH OF FROiinSE, several promises, p. 449, §543, n. 842 IJfDEX. BURDEN, of proof as to iurisdiction, p. 505, §614. — as to citizenship when jurisdictional, p. 505, §614. — general denial, puts burden on plaintiff, p. T81, §991. — shifting by unverified denial (D), p. 606, §§610, 615, etc. — as affected by statutes requiring sworn denial, p. 709, §869. — by failure to interpose sworn denial, p. T98, §ioao. — not changed by denial of anticipated de- fence, p. 458, §549. — not changed by giving different version instead of denying, p. 496, §601. — amendment, p. Ttil, §992, — failure to prove immaterial allegation, p. 781, §993. — to prove proper but unnecessary allega- ation, p. 78i, §994. — plaintiff need not prove his claim to the full extent, p. 783, §995. — indefinite or uncertain allegation, p. 783, §996. — omitted allegation supplied from adver- sary's pleading, p. 784, §997. — burden to prove negative allegation, p. 785, §998. — order of proof of avoidance of defence, p. 786, §999. — right of rebuttal, p. 787, §1000. — admission of allegation of contract, p. 787, §1001. — as to admission coupled with justification or avoidance, p. 458, §556. — under denial and separate admission, p. 549. §647. — changed by statute, p. 79, §92. to disprove qualification of admission, p. 457, §555. BY-LAWS, see also Ordinances. must be pleaded (D), p. 137, §153. pleading legal effect, p. 65C, §T92. " BY REASON OF " when a sufficient alle- gation (D), p. 261, §308. virtue whereof, p. 438, §537. CALL for proof not equivalent to denial, • p. 492, §.594. CANCELLATION, instrument to be cancelled not necessarily an exhibit (D), p. 213, §238, of will, multifariousness, p, 360, §433, n. action against several defendants charged with different undue influence, p. 354, §431. offer to do equity in suit tor (D), p, 266, $819. demand of relief controlls, pp. 113, 114. joined with prayer for recovery of money (D), p. 832, §412, n. bill founded on fraud, amended to enforce the contract (D), p. 87, §100, incidental to ejectment, joinable, p. 347,§424. action not sustainable merel.y as for eject- ment, on default, p. 113, §120. on several grounds (D), p. 329, §410, n. CAPACITY, see also Inability. to hold implied by allegation on ownership, p. 45, §50. of corporation implied by act, p. 676, §833. to own imported by ownership (D), 270, §326. to sue, objection for want of not insuf- ficiency, p. 64, §73. etc, lack of not ground for dismissal at the trial, p. 683. §691. of party appearing by title of pleading or by allegation, p. 257, §.301. defendant who is not Sui juris does not ad- mit by not denying, p. 470, §569. representative or ag[ency, p. 663, §804. misjoinder of capacity, p. 364, §435. Incapacity must be pleaded, p. 656, §793. informal demurrer for want of, p. 3, §3. demurrer tor want of, p. 319, etc. lack of shown notwithstanding admission Of execution, p. 707, §867. variance between allegation and proof, p. 811-813, §§10ii8-1031. amending as to representative capacity, p. 768, §972. objection cured before submission, p. 795, §§1014-1015. CARRIER, consignee's ownership (D), p. 270,. §323, n. additional cause of action set up by reply (D), p. 405, §489, n. complaint against aider by answer, p. 556, §653, n. contract, necessity of verified denial, p. S21, §615. denial coupled with tender and readiness t& deliver, p. 779, §988, n. usage when must be pleaded (D), p. 168, §178. allegation of and proof of being forwarded, p. 804, §1027, n. alleg,ation of contract and proof of negll- ente, p. 804, §1027, n. CASE, action on the, in Federal Court, p. 24, §29. CAUSE removed from one court to another, what are the issues, p. 421, §608. CAUSE AND EFFECT, relation between wrong and injury must be sworn, p. 138, §154. CAUSE OP ACTION, what is single (D),, p. 74, §86. one stated in several forms or counts (D), pp. 74-76, §§86-87. separate statements for same recovery (D), p. 76, §86, several grounds for one recovery, p, 446, §643, — a single recovery (D), p. 329, §410. — election when compelled, see p. 590, etc., §704, etc. formal allegation of identity of several, p. 603, §716. divided into two insuffioient statements ,(D), p. 74, §85. commingled statement (D), p. 328, §409. — of several as if one (D), pp. 73, 74, §83, 84. — or dissevered statement not ground for motion to elect, p. 590, §702. individual or representative, p. 322, §399. g allegation of individual, supported though plaintiff described as representative, p. 811, §1028. several of some of which there is lack of jurisdiction (D), p. 302, §373; p. 567, §669. combining several for purposes of giving jurisdiction, p. 307, §379. several, and single answer, p. 37i, §450. — for one recovery, p, 446, §543. recovery limited by allegation, p. 802, §1027. several for same tort may be joined, motion to elect, p. 597, §707. additional set up by reply (D), p, 404, §487. not altered by ground of arrest, p. 338, §415, n. cannot be changed by bill of particulars, p. 634, §746. in ambiguous complaint how submitted, p. 776, §984. amending at the trial, p. 764, §970. election to withdraw, p. 602, §714. equitable ground for relief equivalent to legal, p. 837. §1048. legal and equitable joinable, p. 345, §422, — distinguished (D), p. 90, etc. granting legal relief in equitable action, p. 824, §1015. granting equitable relief under legal com- plaint, p. 826, §1046. reference from one count to another (D), p. 76, §87. INDEX. 843. — in several to same exhibit, p. 221, §250 inconsistency in allegation of same cause of action, p. 641, §642. — between separate causes of action, p. 641 §642. ' — as creating misjoinder, p. 350, §426. demurrer tor insufdciency in respect to nature of claim, p. 77, §89, etc. eSEect of several where demurrer to one is overruled, (I), p. 486, §.5ia, etc. inquirable into after judgment (D), p. 244, §28!). CHANGING line of proof at the trial, p. 617, §736. CHARACTER, injuries to, joinder with other causes of action, p. 341, §420. " CHARGE," equivalent to allege (D), p. 54, §57, n. Charge to jury, [see Jury]. CHARGING, part of bill may allege facts avoiding anticipated defence, p. 467, §567, n. CHARTER, acceptance of (D),.p. 185, §204. CHARTER PARTY, negativing exception (D), p. 173, §189, n. 2. CIRCDIT COURT, [see United States Court practice.] CITIZENSHIP in federal court, p. 311, etc., §383, etc. cases, jurisdiction of federal court, pp. 575, 576, §§679-682. necessity of pleading in federal court, p. 735, §923. Sreliminaiy allegation (D), p. 16, §21. enial of, p. 503, etc., §610-614. — under the New Procedure CD), p. 504, §611. CIVIL DAMAGE ACT, showing case within statute (D), p. 880, §342, n. allpging case within statute (D), p. 285, §347. joinder of action bv children, p. 355, §431. CLAIM, allegation of adverse, p. 645, §777. [See also Adverse Claim]. CLERICAL ERROR CD), p. 42, §48. in document pleaded by copy, aided by al- legation by legal effect, p. 206, §232; p. 613, §729. CLOUD ON TITLE, remedy at law (D), p. 102, §111. removal by oral evidence in equity, p. 107, §116. title deeds not necessai-y exhibit (D), p. 214, §240. multifariousness, p. 360, §433, n. offer to do equity in suit for (D), p. 266, §319 under' prayer for, redemption allowed, p. 819, §1037, n. joinder with ejectment (D), p, 331, §411, n. CO-DEFENDANTS, right to prove a case against a co-defendant, p. 562, §662. relevancy of claim to subject of action, p. 563, §663. . one of several may move to dismiss, p. 580, same subject-matter, p. 564, §664. obieoting to multifariousness under New Procedure, p. 362, §434. submission of claims between, p. 833. §1060. — in case of plaintiff failure, p. 833, §1061. — incidental relief between, in shaping plaintiff's relief, p. 834, §1062 unnecessary controversy, p. 664, §bb5. necessity of notice, p. 665, §666. no responsive pleading necessary between co-deSendants, p. 566, §667. unsuccessful defendant, p. 666, §668. COLLATERAL INSTRUMENTS, necessity of verifleddenial, p. 521, §615. COLLATERAL SECURITY, assignment of, implied by assignment of principal (D), COLLATERAL STIPULATION, though oral (D), p. 158, §177, n. COLLUSION must be specially stated (D), . p. 138, §156. in making parties to affect jurisdiction, p. 676, §681. COMMINGLED STATEMENT. See Allega- tions, Cause of Action and Complaint. COMMISSION MERCHANT, accounting in equity (D), p. 95, §106, etc. COMMISSIONER in insolvency, allegation of appointment (D), p. 244, §284. n. COMMITTEE, name as showing capacity, p. 321, §398. s V 1, COMMITTEE OF LUNATIC may join several claims for his property, p. 863, §434, n.- COMPLAINT, [see also Supplemental Com- plaint]. 1. As to Parties. want of capacity to sue (D), p. 64, §72. not the proper plaintiff (D), p. 65, §73. — State practice in United States Court (D), p. 66, §74. detect of parties plaintiff (D), p. 66, §75. improper joinder,— of plaintiiCs (D), p. 67, §76. — application of the rule to husband and wife (D), p. 68, §77. — form of assigning ground of demurrer, p. 69, §78. defect of parties defendant (D), p. 71, §81. what is a detect of parties, p. 370, §443. who may demur,— for absence of merely "necessary " partjr, p. 370, §444. — for absence of "indispensable" party, p. 371, §445. excuse for non-joinder, p. 372, §446. presumption that needed party is living, p. 372, §447. form of demurrer, p. 369, §442. misjoinder of improper party, p. 366, §438. — co-plaintiffs not jointly interested, p. 367, §439. — separate relief, p. 367, §440. — persons severally liable on the same in- strument, p. 368, §441. allegation of excuse for non-joinder, p. 372, §446. 2. Capacity of parties. introductory statement of capacity or the like, p. 320, §396. capacity of natural person presumed (D), p. 321, §.397. use of name of guardian, committee, etc., (D), p. 321, §398. allegation of capacity not conclusive (D), p. 322. §399. allegation of individual cause of action by plaintiff described as representative (D), p. 322, §400. defect of plaintiff's allegation of appoint- ment (D), p. 323, §401. omission to designate in caption (D), p. 323, §402. subsequent reference to capacity (D), p. 324, §403. objection on demurrer must be apparent- (D), p. 320, §396. 3. Showing jurisdiction of the action. meaning of " jurisdiction " (D), p. 300, §368. form of demurrer for want of, p. 300, §369. what is appearing on the face of the com- plaint (D), p. 300, §370. statutory prohibition (D), p.301, §371. New York Superior "City Courts, p. 302, §372. several causes of action (D), p. 302, §373. place where cause of action arose, (D), p. 302, §374. federal question, when sufficiently rfhown (D), p. 302, §375. direct allegation of citizenship, in federal, courts (D), p. 312, §384. 844 INDEX. ■COMPLAINT-OonKm«ed. — as to corporation (D), p. 313, §385. — form of allegation (D), p. 313, §386. — description in titles or in introduction (D), p. 314, §387. — time of citizenship (D), p. 314, §388. — suit by assignee (D), p. 315, §389. citizenship in federal court, not a, per- sonal privilege (D), p. 316, §390. ranging parties to affect iurisdiotion (D), p. 817, §391. ■ — demurrer lies, p. 311, §383. defendant sued out of his district (D), p. 318, §.S92. — defendant's inhabitance (D), p. 318, §393. — foreign corporation (D), p. 319, §394. — no waiver by qualified appearance (D), p. 319, §395. 4. Jurisdiction as affected by the amount involved. apparent want of jurisdiction (D), p. 303, §376. minimum amount. — "Value" in actions other than for money demand, etc. (D), p. 304, §377. actions for money demand (D), p. 306, §378. combining several causes of action between same parties (D), p. 307, §379. combinmg joint or several interests of dif- ferent claimants (D), p. 308, §380. form of allegation (D), p. 310, §381. maximum amount as a limit (D), p. 310, §383. -5. Statement of the cause of action; and in- sufficiency. improper division of a single cause of action or defence (D), p. 74, §85. separate statements of elements of a single cause of action (D), p. 327, §408. what kind of allegations invite an issue, p. 435, §533, etc. referring to exhibit (D), p. 230, §247, etc. necessary allegations as to exhibit filed or annexed (D), p. 223, §251. excuse for not furnishing exhibit (D), p. 225, 5252. [As to Allegations on particular subjects or in particular actions, see their Titles]. aggravation, though such as might be a cause of action by itself (D), p. 384, §414. •complaint, necessity and form of alleging damages, p. 186, §208; p. 191, §211. commingled statement (D), p. 328, §409. several grounds for a single recovery (D), p. 75, §86; p. 84, §98; p. 104, §112; p. 329, §410. ■separate counts presumed to refer to separ- ate transactions (D), p. 76, §87. fact common to several causes, of action or defences (D), p. 72, §82. demurrer without discrimination, to com- mingled statement (D), p. 73, §83. — with discrimination (D), p. 74, §84. alternative grounds, p. 85, §99. version and relief not demurrable, p. 87, §100. — by trustee if a special trust, p. 89, §101. Uncertainty whether action is tort or con- tract (D), p. Ill, §119. disclosing defence (D), p. 119, §127. alleging avoidance of defence (D), p. 120, §128. aided by answer, p. 551, §650, — by reply p. 557, §666. limits the recovery, p. 802, §1027. Verification lacking (D), p. 70, §88. ^ 6. Nature of claim. ambiguous as to which of several causes of action are grounds of recovery, p. 446, uncertain as to whether on contract or tort, p. 11, §119. theory of case need not be stated (D),vp. 78, 89. general rule for sustaining complaint against demurrer (D), p. 78, §90. informal pleading (D), p. 78, §91. statutory change of burden of proof (D), p. 79, §92. penal actions (D), p. 80, §93. for single penalty on several violations (D), p. 112, §120. actions without precedent (D), p. 80, §94. allegations stating insufficient grounds with other and sufficient grounds (D), p. 81, §95. allegations Involving mistake as to the law (D), p. 82, §96. immaterial allegations not regarded (D), p. 83, §97. 7. Showing legal or equitable caiise of action, jurisdiction (D), p. 90, §102. equitable title (D), p. 90, §103. action for money or chattel (D), p. 91, §101. [See also Judgment.] 8. Complaint in equity for accounting, mutual accounts (D), p. 92, §105. existence of fiduciary relation, or necessity for discovery (D), p. 94, §106. — remedy at law (D), p. 99, §107. royalty contracts (D), p. 100, §108. facts showing ground of equitable cogni- zance to be specially alleged (D), p. 101, §109. 9. Showing that there is no adequate remedy at law. what is a " remedy at law " (D), p. 104, §114. statutory remedy in equity (D), p. 105, §115. what is a "plain, adequate, and complete '* remedy (D), p. 106, §116. showing want of adequate remedy (D), p. 301, §111. — in case of several grounds of relief (D), p. 104, §112. assignee (D), p. 104, §113. "jurisdiction clause" directly alleging want of remedy (D), p. 109, §117. estoppel against this objection (D), p. 110, §118. form of demurrer because of remedy at law (D), p. 101, §110. 10. Prem.atureness of action. prematurity not presumed (D), p. 116, §124. violation of positive prohibition (D), p. 118, §135. ' enough that any relief is due at time of ar- gument (D), p. 119, §126. complaint disclosing existence of defence (D), p. 119, §127. — with avoidance (D), p. 120, §128. 11. Joinder of causes of action: Nature of the claims. contract and tort (D), p. 335, §415. — electing between contract and tort (D), p. 338, §416. warranty and false representations (D), p. 339, §417. express and implied contract (D), p. 340, §418. covenant and trespass (D), p. 341, §419. injuries to person, character, and property (D), p. 341, §420. common-law liability, and penalty, or stat- utory liability (D), p. 343, §421. legal and equitable (D), p. 345, §423. action to recover debt and enforce lien (D), p. 347, §423. incidental relief (D), p. 347, §424. same transaction or subject (D), p. 348, §435. INDEX. 845 place and mode of trial (D), p. 350, §426. inconsistency (D), p. 350, §427. objection to jurisdiction only (D), p. 350, §4'J8. avoiding by reason of insufficiency of one cause (D), p. 351, §429. state practice in V. S. court (D), p. 326, §404. specifying objection (D), p. 326, §405. 12. Joinder of causes of action, by involving of claims affecting different parties; {.in- cluding midtifariousness). several parlies,— at common law (D), p. 351. §430. — under New Procedure (D), p. 352, §431. equitable action— co-plaintiffs, p. 356, §432. co-defendants in equity — Multifariousness (D), p. 357, §433. — co-defendants under the new procedure (D), p. 362, §434. different capacities (D), p. 364, §435. allegatiim of two capacities and cause of ac- tion in one (D), p. 366, §436. 13. Prayei- for relief. general rule as to demurrer to relief, p. 112, §120. ^ relief against demurrant (D), p. 115, §121. — against co-defendant (D), p. 115, §122. alternative relief (D), p. 115, §123. several demands for relief on same facts (D), p 330, §411. incidental demands (D), p. 332, §412. inconsistent relief (D), p. 334, §413. form of the demurrer goes to the whole pleading (D), p. 327, §406. joint or separate (D), p. 327, §407. 14. Raising objections to the complaint, [See also Election Dismissal; etc.] general rules as to sufficiency on demurrer, p. 77, etc. insufficiency against one defendant demur- ring (D), p. 70, §79. — insufficiency as against co-defendant not demurred (D>, p. 71, §80. may be attacked on demurrer to answer, p. 384, §461. insufficiency as ground for excluding evi- dence, p. 608, §722. defendant's motion to dismiss for insuffi- ciency of complaint, p. 579, §685. — several defendants, p. 680, §686. — answer not to be regarded, p. 580, §687. — amendment to defeat the motion, p. 581, §688. — exception to ruling, p. 582, §689. — want of adequate remedy at law admit- ted, p. 582, §690. — objections to form, etc., p. 583, §691. — defences and counterclaims, p. 584. §692. pleading objected to liberally construed, p. 684. §693. overrulins of a demurrer not conclusive, p. 684, §694. COMPROMISE pending suit, how pleaded, p. 414, §601, etc. in restraint of trade, necessity of allegmg consideration (D), p. 154, §173. COMPULSION. General allegation, p. 139, §1.66. CONCEALMENT not equivalent to fraud (D), p. 241, §276. n. effect of allegation, p. 139, §157. CONCLUSION of fact, if not supported by details (D), p. 27, §34. [See also Fact.] of law, p. 437, §5.34; (D), p. 29, §40. p. 121, n. _ instances of what is, p. 464, §563, n. — " according to law," see p. 235, §268. — " according to the terms of said agree- ment " is (b), p, 175, §193, n. of discharge is, p. 439, §538, n. — " bound " is (D), p. 238, §273, n. — collusion is, p. 138, §154. — a consent is not (D), p. 140, §159. — that counterclaim arose out of same- transaction, p. 400, §480. — " due " may be (D), p. 238, §273. — "duly" not necessarily a (D), p. 226, §256. — duty is, p 228, §256. — as to foreign law, p. 722, §894. — fraud is, p. 724, etc., §896, etc. CD), p. 832, §262. — " heir" is (D), p. 234. §266. — illegality is (D), p. 235, §268. — inability is (D), p. 237, §272. — indebtedness is, p. 731, §915 (D); p. 238, §273. — when intent is, p. 240, §276. — liability is (D), p. 262, §289. — lien (D), p. 262, §289. — bar of the statute of limitations is, p. 736, §926. — reasonable notice is (D), p. 263, §314. — when reasonable time is, p. 272-273. — want of remedy at law is, p. 109, §117. — when interpret action or effect of statute' is (D), p. 284, §346. — subject to a mortgage is (D), p. 252, §289. — title is (D), p. 291, §366. — void is (D), p. 235, §268. — making will (D),'p. 298, §366. — wilful or wrongful, p. 295, §362, n. — tnrongful detention when is, p. 200, §225. — does not imply facts (D), p. 46, §60. invite an issue, p. 435, §633. — unsupported by fact does not let in evi- dence, p, 613, §728. — not sufficient even after going into evi- dence, p. 621, §742. — demurrer to, p. 474, §573. — admitting by demurrer, p. 29, §40. — omission to deny, p. 464, 663. — effect of admitting, p. 459, §668. CONDITIC>'S precedent in contract, and pet'i-'o','. aance, p. 666, §809. in statute giving right of action (D), p. 281, §343; p. 283, §345. pei-formai^ce by plaintiff (D), p. 159, §179. — orjccption or proviso, p. 160, §180. conditions not alleged, not considered, p. 161, §181. form of allegation at common law, p. 161, §182. statutes sanctioning allegation that he " duly performed," p. 162, §183. what are " conditions," within the statute, p. 166, §184. form of allegation under the statute, p. 167, §185. performance by act of third person, p. 168, §186. acceptance of work, p. 169, §187. mutual and dependent conditions, p. 169, §188 conditions subsequent, p. 172, §189, exeus* for non-performance of conditions,. p. 173, §190. inability of person (D), p. 237, §272. CONFEDERACY, tort committed through- agent or confederate (D), p. 140, §168. allegation of act lets in evidence of, p. 646, §779. CONFESSION by avoidance, p. 546, §645. CONFLICTING CLAIMS. [See Cancellation, Cloud on title and Determination of Con- flicting Claims.] CONJUNCTIVE, denial of conjunction, p. 489, §690. CONSENT, general allegation, p. 140, §159; p. 667, §794. implied by permission (D), p. 272, §330. CONSIDERATION " good and valuable " CD), p. 135, §174, n. 6. t346 INDEX. ■COSSI'DERATIO^— Continued. executed consideration (D), p. 156, §175. unconscionable consideration (D), p. 157, §177. necessity of alleging (D), p. 163, §173. formal words not necessary (D), p. 155, §174. not presumed (D), p. 33, 843. supplied by reference to another count (D), p. 73, §82, n. 3. recited in document pleaded (D), p. 202, of instrument for paymentiof money plead- ed under short statutory form (D), p. 182, §199. ■B-aiit of (D), p. 139, §156. — as defence to a contract, p. 673, §818. — shown under statute requiring exhibit or sworn denial, p. 705, §86:i. when denial must be verified, p. 507, §615, alleging illegality of (D), p. 236, §268, n. admission of, and usury, p. 471, §570. •CONSOLIDATIONS of corporations (D), p. 185, §204. CONSPIRACY, multifariousness (D), p. 361, §433, n. joinder of several claims, p. 364, §434, n. may be proved though not alleged, p. 658, §795. damage necessary, p. 141, §160. variance, p. 658, §796. variance as to circumstances, p. 761, §966, n. CONSTABLE, joinder of action on bond with action for wrongful levy, p. 355, §431. CONSTITUTION, read into the pleading, p. 62, §.55. CONSTITUTIONAL QUESTION [see Federal Question]. CONSTRUCTION of pleading in whose favor, p. 31, etc. CONTINGENT allegation lets in evidence, p. Cao, §726. CONTINUANCE of fact, when presumed (D), p. 194, §216. — ownership, presumed (D), p. 271, §337. CONTINUANDO, p. 193, §214. CONTRACTS, [see also Royalty Contract; Subscription Papers; as to assignment, see Assignment; as to damages, see Damages; as to illegality, see Illegality]. 1. In general. implied contract; — facts raising implied promise (D), p. 141, §161. •does '* contract " include obligations im- plied by law, p. 344, §421. express contract, technical words not necessary (D), p. 143, §162. ■express and implied joinable (D), p. 340, §418. limited partnership, p. 748, §946. lowest bidder, p. 37, §42. recovery on original consideration when al- lowable (D), p. 804, §1087, n. consideration of assignment (D), p. 132, §142. necessity of alleging consideration (D), p. 153, §173. , in restraint of trade (D), p. 154, §173. formal words not necessary (0), p. 155, §174. executed consideration (D), p. l56, 175. unconscionable consideration (D), p. 157, §176. failure of consideration, p. 675, §820. concurrent admissions, defect in writing, p. 676, §821. mutuaUty (D), p. 144, §163; (D), p. 219, §846, n. 3. when denial of, must be rerifled, p. 507, §615, etc. admission of similar instrument to that al- leged, p. 445, §552. admission admits validity, p. 787, §1001. plaintiff in pari delicto, p. 427, §908. mistake in description of (D), p. 83, §96, n. mistake how alleged (D), p. 254, §295. joint but not several, admissible under al- legation of partnership iD), p. 748, §§944, 945. allegation of joint and proof of several oh- ligations (D), p. 814, §1032. tort alleged with' contract as matter of in- ducement; and no proof of tort (D), p. 804. 1027, n. allegation contract with tort inducing it; and failure to prove tort, p. 806, §1027, n. remedy in equity (D), p. 107, §116. remedy on contract to form corporation CD), p. 102, §111. 2. The insinvment or form. general allegation lets in writing, p. 659, §797. allegation of writing may let in oral, p. 660, §798. general allegation, and special contract, p. 660, §799. agreed; price and value, p. 661, §800. allegation of execution, p. 662, §8U1. signature as shown by copy annexed (D), p. 207, §232, n. fraud in inducing signature distinguished from fraud inducing agreement (D), p. 926, §904. delivery of, may imply proper parties (D), p. 45, §50. execution and delivery (D), p. 144, §164. seal, (D), p. 147, §165. statute of frauds, where contract appears to be oral (D), p. 148, §166. where it does not appear to be oral (D), p. 150, §167. several instruments making one (D), p. 210, §236. denials, p. 669, §813. — statute of frauds, p. 670, §814. admission of contract, p. 671, §815. statute of fraud avails under a denial, p. 794, §1013. agency in making (D), p. 127, §136; (D), p. 160, §168. signed by agent, p. 662, §802. agent's authority, p. 663, §803. agency or representative capacity, p. 663, §804. — not purporting to be that of the party (D), p. 151, §169. — appearing on face of the contract (D), p. 152, §170. in the wrong name, how sued on (D), p. 255, §296. pleading legal effect (D), p. 152, §171; p. 663, §805. term omitted implied by law (D), p. 163, §172. variance by not alleging immaterial part, p. 664, §806. oral to vary writing (D), p. 157, §177. usage or custom to aid (D), p. 158, §178. what are within statute or rule of court re- quiring annexing or filing, p. 694, §851. not shown to be in writing not necessary as exhibit (D), p. 220, §247. denial of execution, when must be verified, p. 607, §615, etc. what are " instruments for the payment of money only," within the statute (D), p. 180, §198. — validity, execution, ownership and condi- tion (D), p. 182, §199. — form of allegation (D), p. 188, §200. — language (D), p. 183, §201. alternative contract, p. 664, §807. modification of, p. 665, §808. allegation of extension (D), p. 30, §40. INDEX. 847 3. Performance of conditions. ■performance of conditions precedent bv plaintiff (D), p. 159, §179, p. 666, §809. — exception of proviso (D), p. 160, §180 amending by substituting excuse for non- performance, p. 764, §970, n. — conditions not alJeged (D), p. 161, §181 — form of allegation at common law c'd) p. 161, §182. ^ '' — statutes sanctioning allegation that he duly performed (D), p. 163, §183. what are " conditions," within the statute (D), p. 165, §184. ~/;7.'°'''" °* allegation under the statute (D), p. 16i, §185. — performance by acts of third persons (D), p. 168, §186. — for act to be done by third person (D), p. 168, §186. — acceptance of work (D), p. 169, §187. mutual and dependent conditions (D). p. 169, §188. conditions subsequent (D), p. 173, §189. excuses for non-performance of conditions (D), p. 173, §190. reasonable time, see §§833-334. plaintiff's breach of condition precedent as a bar, p. 672, §816. — denial, with specifications of breach, p. 673, §817. — want of consideration, p. 673, §818. — recoupment, p. 674, §819. prohibiting action thereon until after lapse of time, p. 118, §ia5. 4. Breach. alleging duty under (D), p. 228, §356. necessity of allegation on money contracts (D), p. 174, §191. — in other actions (D), p. 175, §193. general allegation (D), p. 175, §193. allegation in terms of (D), p. 176, §194. exception of proviso (D), p. 177, §195, several parties indebted (D), p. 177, §196. disabling one's self; anticipatory refusal (D), p. 179, §197. particulars of breach, p. 667, §810. evidence of breach limited by allegation, p. 667, §811. — excuse, p. 668, §812. defendant's breach: excuse, p. 676, §823. tortious breach alleged and no proof of tort, (D), p. 805, §1037, n. 5. Several causes of action on ; and contract and tort. misjoinder of causes of action affecting different (D), p. 363, §431. election under, p. 230, §258. and tort, counterclaim of one against the other, p. 397, §477. — in same transaction joinable, p. 336, §415. — , election between (D), p. 338, §416. — , if facts are same, election should not be compelled, p. 603, §713. several causes of action: and compelling election, p. 591, §704, etc. or tort, ambiguity as ground for demurrer, p. Ill, §119. ambiguity as to whether complaint is in, or for tort, p. 446, §543. and judgment, award, or account stated thereon, and election between, p. 595, §705. and tort, misjoinder by (D), p. 335, §415, etc. •CONTKIBUTION, multifariousness (D),p. 362, §4.33, n. original obligation need not be made ex- hibit (D), p. 213, §338. CONTRIBUTORY NEGLIGENCE, how al- leged (D), p. 261, §308; p. 294, §360. CONVERSION [see also Ownership], different modes of alleging in same com- plaint, p. 697, §707. wrongful detention (D), p. 200, §225. allegation of wrongfulness (D), 296, §363, n. — of detention, lets in, p. 688, §843. — , lets in evidence of demand and refusal, p, 199, §223. ' — , struck out as suiplusage, p. 783, §993, n. does not avail under allegation of breach of contract, p. 803, §10a7, n. 3. negligence not available under allegation of, p. 805, §1027, n. effect of general denial, p. 441, §540. denial does not let in lustification, p. 758. §964, n. • H , not amendable to fraud and deceit, p. 766, §970, n. • f . cancelling instruments as an obstacle (Dl, p. .333, §412, n. joinder wir,h trespass (D), p. 835, §414, n. and equitable claim for same relief (D) p. 84, §98. CONVEYANCE, allegation of (D), p. 30, §40. allegation not showing title, p. 293, §358. effect of denial, p. 730, §913, n. "conveyed" imports deed, etc. (D), p. 147. §165. COPY of document embodied ia pleading, p. 2(1^, etc. — annexed and referred to, p. 203, etc. admission of similar instrument, p. 492, §596. served controls, p. 13, §17. COPYRIGHT, place of cause of action in creditors' suit, p. .303, §374, n. accountinpr for royalties (D), p. 100, §108. CORPORATION, preliminary allegation of. p. 18, §23. necessity of alleging incorporation (D), p. 184, §303. general allegation of organization (D), p. 185, §304. due organization (D), p. 50, §53, n. objects of organization a mere conclusion (D), p. 307. §232. allegation of accepting charter, p. 46, §50, n. when denial of existence must be verified, p. 507, §615, etc. capacity to sue (D), p. 65, §72, n. what i'i want of capacity appearing on face of complaint, p. 320, §396. official and individual capacity of ofQcer, p. 365, §435, n. misnomer, p. 737, §986. power to act (D), p. 185, §305. private or foreign corporation (D), p. 186, §206. mode of act (D), p. 186, §207. authority implied by act (D), p. 45, §50. admission of act Implies capacity, p. 676, 823. admission of act with qualification as to power, p. 4.58, §556, n. resolution not a " written instrument " (D), p. 209, §234. what instruments are foundation of action for assessment or call (D), p. 210, §236. agency in making contract (D), p. 151, §169 ; p. 152, §170. allegation of act by agent (D), p. 128, §137. verified denial in case of instrument execu- ted by authority of corporate officers, p. 532, §627. imputing intent (D\ p. 241, §277. plea of by law not showing date, p. 193, §213, n. residence for purpose of jurisdiction, p. 313, §386. jurisdiction over foreign corporation, in State courts, p. 319. §§394, 395. when suit raises a federal question, p. 574, 848 INDEX. COEPOEATION— CoTiKmited. complaint on behalf ot creditors, p. 10, §12, n. 1. count ap^ainst directors on official liability and on liability as individuals, election not compelled, p. 600, §711. accounting of officers in equity (D), p. 98, 1106, n. action against directors also, and for dis- solution (D), p. 831, §411, n. 2. particular grounds of forfeiture, p. 59, §62, n. fraudulent issue of stock (D), p. 40, §46. hypothetical or alternative allegation as to cause of action, in regard to illegal stock, p. 611, §726. joinder of claim for securities with claim against adverse claimant, p. 363, §434, n. joinder of individual liability of officer, and claim for penalty (D), p. 345, §421, n. misjoinder of different causes of action, p. 353, §431. — of individual with corporate cause of action, p. 364, §435. n. misjoinder and sufficiency in axition for over issue (D), p. 8, §9. liability of trustee for waste and on his bond, demurrer for misjoinder, p. 365, §435, n. COSTS [see also Disclaimer], allegation of ground for costs, and right to prove in equity, p. 677, §824. — in actions of a legal nature, p. 677, §825. right to ask ground for admitting evidence, p. 619, §739. COUNSEL, effect of their practical construc- tion of pleadings, p. 813, §1031. power of — to consent to amendment, etc. p. 431, §528. COUNT [see also Cause of Action and Com- plaint], separate counts for same recovery (D) p. 75, §86. — on compelling election, p. 691, §704. reference in several to same exhibit (D). p. 221, §250. election to withdraw, p. 602, §714. COUNTERCLAIM, as distinguished from re coupment, set-off, and cross-bill, p. 390. evidence admissible although answer char- acterized it as set-off, p. 619, §740. may avail as equitable defence, f>. 831, §1056 what, against double-faced cause of action p. 399, §478. complaint, double-faced cause of action met by what, p. 399, §478. counterclaim to counterclaim, p. 405, §489, n; p. 406, §490. pending suit, how pleaded, p. 414, § etc. equitable estoppel to defeat, p. 714, §879, illegaUty ot, p. 730, §914. not provable under infant's general answer. p. 731, §916. not to be set up by amendment, p. 768, §971 not admitted by avoidance, p. 548, §645, n. reply or non-reply does not waive objection to inappropriateness, p. 561, §661. — reply does not admit sufficiency. Id. — reply waives informality, Id. effect of reply when there is no other defence, p. 584. §692. COUNTEESIGNING not an execution, p. 523, §616. COURT, duty of, to define limits of issue, see Issue. power and duty on submission after evi- dence, p. 772. §979-981. inherent power to amend, p. 770, §974. COVENANT, performance of actual and dependent conditions (D), p. 169, §188. allegation of breach, p. 175, §193. joinder with trespass (D), p. 341, §430. allegation ot time of breach, p. 117 . §184, n. allegation of value in controversy, p. 307 §378, n. exception which might have excused' breach (D), p. 177, §195. to stand seized (D), p. 155, §174. COVERTURE, suing married woman as sole (D), p. 254, §393. waiver of objection to want of legal capa- city to sue, p. 657, §793, n. CRAVING LEAVE to refer to original, p. 493, §598. CREDIT unexpired when an action was com- menced, p. 644, §775. CREDITORS' SUIT suing for benefit ot others (D), p. 256, §299. necessit.y of allegation in bill in equity as to- amount in controversy, p. 451, §546, n. allegation of defendant's title (D), p. 103, §111, n. intent to defraud (D), p. 240, §276. fraudulent conveyance, multifariousness. (D), p. 71, §80, n; p. 361, §433, n. setting aside deed and recovering property, joinable, p. 348, §424, n. joinder of action affecting other parties, p. 354, §431, issues between co-defendants, p. 563, §663. variance as to ground for relief, p. 809, 318, §1027, n. admission coupled with avoidance, p. 458, §556. judgment for value where property could not be reached, p. 819, §1037, n. amending to dispense with proof of fraudu- lent intent, p. 767, §970, n. against firm not amended to reach individ- ual propert.y. Id. CRIMINAL CONVERSATION, joinder of other causes of action with, p. 343, §420. CROSS-BILL as distinguished from recoup- ment, set-off, and counterclaim, p. 390. CUSTOM, necessity of pleading, p. 397, §365. whfen must be pleaded (D), p. 158, §178. of brokers (D), p. 48. DAMAGES, presumed need not he alleged (D), p. 50, §62, n. relation of cause and effect (D), p. 138, §154. variance as to mode of inflicting, p. 808,. §1027, n. general allegation, p. 678, §826. alleging, by breach of contract (D), p. 186, §208. on unconscionable contract (D), p. 157, §176. by tort (D), p. 189, §209. by conspiracy (D), p. 141, §160. distinction between general and special damages (D), p. 190, §310. special damages not proven, p. 822, §1040. — not alleged, p. 823, §1041. diminution ot rental value, p. 680, §827. loss of rent, p. 681, §828. general allegation of damage from personal injury, p. 681. §839. vocation and ordinary earnings, p. 682, §830. medical expenses, p. 683, §831 ; (D), p. 37,. §42, n. dependent family; embarrassment, p. 683, §832. pending suit, legal actions, p. 683, §833. — equitable actions, p. 684, §834. rule as to action by married women, p. 684,- §835. plaintiff's prevention of defence, p. 685, §836. evidence appropriate to different theories,. p. 685, §837. interest as, p. 821, §1089. ad damnum; demand of judgment (D), p. 191, §211. demanding too much (D), p. 193, §212. minimum amount in federal court (D)> p. 306, §378. INDEX. 849 different measure as ground for compelling election, p. 604, |716. limited by pleading, p. 821, §1038. amending claim as to amount, p. 650, §784. treble and single when recoverable, p. 823, §1043. amending as to damages, p. 824, §1044. repetition ot same grievance, p. 721, §892. apportionment if in case of non-joinder, p. 6B0, §559, n. jomiiig claims or with specific relief (D), p. 33.', §412. aggravation of damages, p. 685, §838. — when may be joined (D). p. 334, §414. circumstances of aggravation not available alone, p. 823, §1042. mitigation, p. 685, §839. granted under complaint of equitable na- ture, p. 824, §1045. award ot in equitable action, p. 824, §§1045, 1056. admitting by demurrer, p. 29, §39. Date, [see also Time], if essential to the cause of action, p. 192, §213. form ot allegation, p. 193, §214. several events, p. 194, §215. contiiiuHnce of fact or right, p. 194, §216. on or about, p. 195, §217. of accrual of cau-se of action (D), p. 117, §184. of f landulent representations, p. 725, §899. ot mailing an assignment of cause of action, (D), p. 132, §142. ot accrual or vesting of counterclaim, p. 400, §481. mistake in, p. 43, §48. variance in dates, p. 686, §840. amending date, p. 686, §841. when may be disi-egarded (D), p. 834, §267. DEATH of person not made party not pre- sumed, p. 372, §447. implication as to time ot (D), p. 36, §42. reference to statute giving action (D), p. 277, §340. alleging damages, p. 190, §209, n. 3. DEBET ET DETlNET, p. 6, §6, n. 2. DEBTOR AND CREDITOB., accounting in equity not required (D). p. 96, §106, n. DECEIT, [see also REPBESitNTATioNs]. variance as to details, p. 762, §1166, n. joinder of action for joint and for several, p. 35.3, §431. . ^ , joiniler ot cause ot action on contract and for damages (D), p. 339, §416. joinder with false warranty (U),p. 339, §417. election not compelled, p. 698, §708, n. DEED, allegation of making (D), p. 145, §164, n. imports seal (D), p. 147, §165 executed pending suit, but relating back, p. 720, §890. n. effect of denial, p. 730, §918, n. when denial of, must be verified, p. 507, §614, etc. , . ., ,^, action to recover may be m equity (D), p. 91, §104, n. ^ , action to cancel and recover back money DEFAuEt, allegation ot, p. 621, §742, n. ; (D), right'of defendant in default, P-838, §1059. amendment not allowed attei\ p. 6S0; s'^- DEFEASANCE in ownership (D), p. 270, §324. DEFECT OF PARTIES, demurrer tor, p. 6, SO n. 2: p. 369. §442. , , defendant not objectionable under general demurrer, p. 71. §81. „ o an demurrer for, need not name, p. 9, §11. informal demurrer for, p. 3, §3, p. 7, §»• not objectionable tor insutaciency, p. 66, nit'^^available under denial ot partnership, p. 747, §943. must be specially pleaded, p. 688, §845. evidence ot defect, p. 690, §846. ignorance as an excuse, p. 690, §847. belief or advice no excuse ( D), p. 54, §56, n. 3. not ground for dismissal at the trial, p. 583, §691. — unless absentee is indispensable party. TS. facts in avoidance occurring after com- mencement of action, p. 691, §848. cured by supplemental pleading, p. 412, §497. DEFENCES, [see also Answer; Waiver.] what is foundation ot, under statute requir- ing documents to be filed, etc., p. 378, §454, etc. disclosed by complaint (D), p. 119, §127. equitable, under New Procedure, p. 379, § - without asking affirmative relief, p. 380, .79, §457. §458. sufficient without denial, p. 584, §692; p. 588, §698 detective special does not impair general denial, p. 635, §759. efCect ot pleading avoidance by anticipation, p. 467, §567. avoided by fraud not pleaded, p. 728, §909. — what to be taken by answer in Federal Court, p. 24, §30. what waived by not pleading, p. 558, §659. — limited by the case made by answer, p. 802. §1027. one sufficient, enough, p. 586, §695. sufficiency not admitted by not demurring,, p. 780, §990. — arising after suit, p. 414, §601, etc; p. 716,, §882. amending by setting up new, p. 768, §971. new matter considered constituting a mere- defence, and demurrer thereto, p. 390, §413, etc. several in one' answer, p. .376, §451. separate numbering, p. 16, §21. reference in several to same exhibit, p. 221, §250. inconsistency in allegations of same defence, p. 541, §642. inconsistent, p. 779, §989. inconsistent joinable, p. 381, §460; p. 548, §645, n. inconsistent in fact available, p. 550, §648. election not required between inconsistent defences, p. 606, §780. appropriate to one only ot several counts on same transaction, how submitted to jury, p. 778, §987. DEFENDANTS, issues between Co-deteu- dants [see Co-defendants.] Affirmative relief in favor ot, p. 832, §1058. may move that plaintiff have judgment, p. 689, §701. brought in may plead under original pro- ceeding, p. 429, §523. DEFINING LIMITS OF THE ISSUES, [see Issues]. DEFINITENESS AND CERTAINTY, [see al- so Uncertainty]. motion as to corporate act, p. 129, §137, n. DELAY, [see also Laches]. * available in equity under demurrer, for in- sufBciency. p. 195, §218. DELIVEE,Y, of contract (D), p. 144, §164. on agreement implies proper parties (D), p. 45, §50. performance ot actual and dependent condi- tions (D), p. 169, §188. effect ot unsworn denial ot instrument,, p. 524, §617. and acceptance, p. 196, §219. DELUSIONS, [see Insanity]. DEMAND, when required before suit (D), p. 133, §146. before suit, as a condition precedent (D)„ p. 165, §184. 850 INDEX. DEMAND— ConiiwMcd. necessity o£ alleging, p. 687, §842. promise to pay naming time or place (D), p. 197, %-^iiO. to pay on demand (D), p. 197, §221. form 01= allegation (D), p. 198, §222. demand implied from other allegations (D), p. 199, §323. preliminary allegation of (D), p. 18, §22. implies offer (D), p. 170, §188. of judgment or relief, form of for damages (D), p. 191. §211. — as controlling the relief, p. 818, etc., §1037, — its nature and effect (D), p. 112, §120, n. 3. — when demurrable, p. 112, §120. DEMURREK, to supplemental answer, [see Supplemental Answer]; to supplemental complaint, [see Supplemental Complaint], what objections waived by failure to demur, p. 658, §659, etc. demurrer ore tenus p. 1. joint, p. 12, §14; p. 70, §79. statutory grounds exclusive, p. 2, §1. precise language of statute not essential, p. a, §2. intelligible indication enough, p. 3, §3. omission to assign the right ground, p. 4, §4, wrong specifloation imder right ground, p. 4, §6. general and special demurrers, p. 5, §6. stipulation cannot avoid statute, p. 7, §7. several specifications, part only being good, p. 7, §8. inconsistent objections, p. 7, §9, speaking demurrer, p. 8, §10. objections of face of pleading alone noticed, p. 9, §11. facts appearing by the process, p. 10, §12. facts necessarily implied by the existence of the pleadings, p. 11, §13. verification not required p. 13, §15. informality disregarded, p. 13, §16. for pendency of another action, [see Another Action Pending]. for want of capacity to sue, [see Capa- city], defendant cannot demur to co-defendant's answer, p. 402, §485. discriminating as to commingled statement, pp. 73, 74, §§83, 84. form of, to counterclaim for insufficiency or inappropriateness, p. 395, §§473, 474. demand of excessive damages not ground for (D), p. 192, §212, form of, for defect of parties, p. 369, §442. for want of equity, p. 64, §70. right to raise an objection to, insufficiency, p. 63, §69. ■equivalent to want of equity, p. 64, §70. specification of defect, p. 64, §71. form of, assigning insumciency when objec- tion relates to parties, p. 69, §78. imotion to dismiss for insufficiency, p. 579, etc, §685, etc. form of assigning want of jurisdiction (D), p.^300. §369. specifying objection to misjoinder, p. 326, §405, form of, to misjoinder does not avail to raise objection to jurisdiction, p. 350, §426. form of, for multifariousness (D), p. 361, §433, n. form of assigning objection of remedy at law, p. 101, mo. form of, to reply, p. 403, §486. to unauthorized reply, p. 408, §493. tor uncertainty, p. Ill, §119. the copy served controls, p. 13, §17. original not considered after amendment, p. 14, §18. slip in addressing, p. 14, §19. decision on original, p. 15, §20. one count or defence not aided by another, p. 15, §21. general allegation applicable to all of several divisions, p. 18, §22. several causes of action or defences, and demurrer to the whole, p. 18, §23. to part of commingled statement, p. 20, §24. effect of answering pending demm-rer, p. 20, §25. amending, p. 21, §36. [See also Complaint, subd. sufficiency, ob- jections turning on the form of the plead- ing demurred to.] proof of service, etc., not available, p. 117, §134, n. 4. what kind of allegation admitted by, p. 26, etc. general rules applicable on, as to frame and sufficiency of allegations, see p. 53, etc. of failure to annex or file exhibit (D), p. 217, §244; p. 218, §246. allegation of document not aided by pro- duction of original of the argument (D), p. 208, §233. does not lie to mere denial, p. 387, §463. state practice in U. S. court, general rule, p. 21, §37. — " as near as may be," p. 23, §28. statutory action given by common law name, p. 24, §29. use and form of, p. 24, §30. time of hearing, p. 25, §31. effect of overruling on subsequent proceed- ing, p. 425, §519, etc. ; p. 584, §694. effect of sustaining on subsequent proceed- ings, p. 427, §520. DENIAL. [See Answer; Reply.] admission by not denying, see p. 461, §561, etc. new matter as requiring denial, p. 638, §637. not equivalent to an affirmative contrary allegation, p. 538, §638. in form of new matter, p. 538, §639. avoidance in form of counterclaim, p. 539, §640. counterclaim not properly characterized in pleading it, p. 539, §641. the words of denial, p 472. §571. ''says he denies." p. 473. §.573. of legal conclusion, p. 474, §573. of " each and every allegation," p. 474, §574. of " material " allegations, p. 475, §575. general denial when an admission, p. 475, §576. under statutes not allowing general denial, p. 476, §577. specific denial, what'is. p. 477, §578. unspecific denial, p. 477, §579. disregarding lack of specificness, p. 478, §580. of all allegations on a particular subject, p. 478, §581. sweeping denial, with exception as to what is otherwise answered, p. 479, §583. — with exception of specified folios, p. 481, §583. by reference to numbered paragraphs, p. 482, §584. of specific sum, p. 482, §585. involving non-essential circumstances — Negative pi-egnant. p. 483, §586; p. 486, §587. evasive denial not covering the allegation, p. 487, §588. addition of hypothetical or contingent avoidance, p. 489, §689. conjunctive denial of conjunction — ^Negative pregnant, p. 489, §590. — of each and every material allegation, p. 474, §574. disjunctive, p. 491, §591. surplusage in, p. 491, §592. refusal to admit, p. 491, §593. mere call for proof, p. 492, §594. submission to court, p. 492, §595, INDEX. 851 admission of some such a contract admits correctness, p. 492, §596. of correctness of copy, p. 493, 1597. graving leave to refer, p. 493, §698. direct allegation to contrary, p. 494, §599. 4, n. as ground of demurrer, p. 59, §65: p. 78, §91. in demurrer, p. 6, §6. and uncertainty waived by taking issue. p. 437, §536. — not ground for dismissal at the trial, p. 683, §691 : p. 783, 8996. "INDENTURE" iniporU seal (D), p. 147, §165. INDIAN, waiver of objection to want of legal capacity to sue, p. 657, §793, n. INDISPENSABLE PARTY, who is, p. 371, §445. in action to cancel, p. 371, §445. INDORSEMENT of negotiable paper pleaded in statutory short form (D), p. 183, §199. — exhibit annexed or filed (D), p. 216, §243. — contract (D), p. 144, §164. allegation of, lets in delivery, etc., p. 662, §801. when denial must be verified, p. 507, §615, etc. INFANT [see also Capacity]. amendment as to naming guardian p. 769, §973, n. affirmance of act of CD), p. 272, §331. omission to prosecute by guardian, p. 795, §1015. f;eneral answer, p. 731, §916. ailure to deny not an admission, p. 470, §569. waiver of objection to want of legal capa- city to sue, p. 657, 8798, n. not admitted by guardian's appearance (D), p. 11, §13, n. 5. INFORMATION not an allegation (D), p. 53, §56. INFORMATION AND BELIEF, allegation on (D), p. 55, §58. denial of information or knowledge suffi- cient to form belief, p. 499, §605. denial upon, p. 497, §60:1 veiitying sworn denial upon information andbelief,p. .527, §621. INHABITANCY as affecting jurisdiction, p. 318, §392. INITIALS, instead of name (D), p. 256, §297. INJUNCTION, when allowed against tort (D), p. 103, §111, n. to restrain telegraph line, and remove nuis- ance (D), p. 346, §422. — completion of telegraph (D), p. 330, .action to enjoin former owner, p. 294, §358, a. although no damage sustained, p. 108, §116, n. oflfer to do equity iu suit for (D), p. 266, §319. joined with prayer for damages, p. 332, §413. joinder of parties separately affected (D), .p. 367, 8439, n. right to, as ground for admitting evidence, p. 619, §739. failure to prove alleged ground for, p. 803, §1027, n. INJURY TO PERSON, character, and prop- erty, joinder of causes of action for, p. 341, §120. variance as to mode of, p. 808, §1027, n. INSANE PERSON, committee may join sev- eral claims for his property, p. 363, §434, n. waiver of objection to want of legal capa- city to sue, p. 657, §793, n. general allegation, p. 239, §274; p. 733, §917, INSOLVENCY a fact, but not always enough, p. 240, §275. INSTALLMENTS, additional accruing pend- ing suit, p. 800, §1025. INSTRUMENTS [see also "Documents and Contracts; as to illegality, see Illegality; as to demand, see Derniind.] what deemed, p. 208, §231, etc. what ai-e instruments for payment of money only, within the statute, p. 180, §198. — validity, execution, ownership, and con- ditions, p. 182, §199. — form of allegation, p. 18;j, §200. — language, p. 183, §201. — when denial of must be verified, p. 507, §615, etc. INSURANCE [see also Title.] policy as foundation of an action, and con- ditions collateral (D), p. 311, §236, u. — pleaded as an instrumentfor the payment of money (D), p. 180, §198. insurable interest (D), p. 47, §51. allegation of ownership of the thing (D), p. 268, §321. — change of title (D), p. 62, §68, n. amending allegation of title by alleging conveyance as collateral, p. 764, §970, n. joint plaintiffs (D), p. 67, §76. joinder of mortgage, as plaintiff, p. 367, §4.39, n. plaintiit's performance of condition, p. 161, §181. tontine policy, not entitled to accounting (D), p. 99, §107, n. count on policy and on promise to issue fop, and election between, p. 694, §704. policy, necessity of verified denial, p. 531, §615. proofs of loss and magistrate's certificate as conditions precedent (D), p. 165. §181. short limitation, and denial of waiver, p. 657. §656, effect of stipulation postponing suit till after the lapse of time from notice or de- mand (D), p. 166, §184. premature action (D), p. 117, §124, n. legal and equitable ground for same relief, election not compelled, p. 600, §710, n. qusere as to performance of representations and warranties, p. 173, §189. INTENT, notice of intent to prove, not equiva- lent to an allegation, p. 613, §737. of pleader does not amount to an allega- tion, p. 460, §645. general allegation of Interest (D), p. 340, §276 to defraud, p. 725, §898. necessary to make out fraud (D), p. 833, §265. INTEREST [see also Judgments, see also Usury.] 858 INDEX. INTEREST— Co»i«n«ed. when recoverable thougrh not distinctly claimed in pleading, p. 8s!l, §1039. amount need not be specified (D), p. 289, §353. not included in computing value to give jurisdiction, p. 307, §378, n. accruing pending suit, p. 800, §1025. laches as barring interest, p. 732, §918. INTERLOCUTORY DECISION on leave to file pleading not adjudication, p. 719, §887. order on demurrer, p. 635, §759. overruling demurrer not conclusive at the trial, p. 585, §b94. on demurrer, effect of on subsequent objec- tion, p. 386, §462, n.; p. 425, §511). decision on plea in abatement conclusive on trial ot the merits, p. 736, §923. allegation mutilated by striking out part, p. 636, §761. on motion to strike out, and efifect on admis- sion of evidence, p. 637, §761. effect of motion to strike out or omission to move, p. 636, §760. objector who induced the objectionable pleading estopped, p. 638, §762. on origiual as affecting amended (D), p. 15, §20. does not silence jurisdictional objection, p. 669, §672. going to issue after does not waive objec- tion, p. 5.59. §669. IRRELEVANCY not ground for dismissal at the trial, p. 683, §69J. IRRELEVANT ALLEGATION not provable, p. 615, §734. does not prejudice relevant, p. 616. §735. ISSUES. [What ple-adings constitute} see Pleadings, and Allegations.] 1. In General. order of trial of several (D), p. 347, §422, n. immaterial not to be submitted, p. 775, §983; p. 420, §607. between co-defendants, see Co-defendants, directed to try plea in abatement that ac- tion was colorably brought in federal court, p. 56-', §661, n. 2. Duty of the Court. limits of the issue to be decided by the court, p. 419. §606. refusal to try immaterial issue, p. 420, §507: p. 775, §983. 3. WTiat system of law applies. cause removed, p. 421, §508. state practice in U. S. court, p. 421, §609. some equity rules same as at law, p. 422, §510. JOINDER OP ACTIONS, former recovery in a separate count (D), p. 231. §201. JOINDER OF COUNT on act of principal with count on act of agent (D), p. 129, §137, n. JOINT ADVENTURE, accounting in equity fD). p. 96. §106. n. JOINT CONTRACT, but not several contract admissible under allegation of partner- ship, p. 748. §§!144, 945. JOINT DEMURRER, p. 12, §14. JOINT INTERESTS combining for purpose of giving jurisdiction, p. 308, §380. JOINT INSTUMENTS under statutes requir- ing sworn denial ot execution, p. 583, §629. JOINT AND SEVERAL OBLIGATIONS, vari- ance and failure of proof as to parties, p. 814, §1032. '^ ' JOINT PARTIES and not having joint inter- ests (D). p. 367, §439. n. JUDGMENT [see also Former Adjudication, Estoppel, and Former Recovery]. 1. Conformity of proofs to allegations. must be secundum allegata as well as pro- bata, p. 802, §1027. success on the evidence limited by the- pleadings, p. 802, §1027. not to be given ou cause of action not pleaded, p. 796, §1017. allegation of individual cause of action by plaintiff described* as representative,, p. SU, §1028. — representative's cause of action and proof of individual cause, p. 812, §1029. representative capacity mis-described, p. 813, §1030. counsel's practical construction ot plead- ing, 813, §1031. joint and several obligations, p. 814, §1032. omission to reply, p. 815, §1033. departure, p. 815, §I034. 2. Conformity of findings to the issue and admissions. findings controlled by admission, p. 815, §1035. waiver of ad mission by going into evidence. p. 816, §1030. 3. Conformity of relief to the prayer or de- mand for judgment. scope of the demand for judgment, p. 818, §1037. granting legal relief under a complaint of an equitable frame, p. 820, §1038. — equitable relief under a complaint of a legal frame, p. 821, §1039. cause of action of concurrent jurisdiction, p. 823, §1040. equitable ground for relief equivalent to- legal, p. 822, §!041. legal case proved under complaint ia equity, p. 823, §1042. — by defendant's evidence, p. 823, §10<3. equitable case proved under complaint ap- propriate to legal action, p. 824, §1044. legal or equitable relief on same trans- action, p. 824, §1046. equitable avoidance of defence to legal claim, p. 825, §1046. necessary allegations of fact, p. 820, §1047. equitable relief as to part, and damages as. to part, p. 827, §1048. — defence and counterclaim, p. 827, §1049. lets in plaintiff's equities, p. 8-28, §10.')0. affirmative relief in favor of defendant, p. 8-28. §10.51. rights of defendants in default, p. 829, §1062. relief between co-defendants,— Omission of demand and service, p. 830. §1063. — in case of plaintiff's failure, p. &S0, §1054. — incidental relief between co-defendants- involved in shaping plaintiff's relief,, p. 831, §1065. 4. motion for jiidgment on thepleadings. plaintiff's motion, p. 686, §695. omission of essential fact. p. 587, §696. immaterial issue, p. 688, §697. new matter sufficient without denial, p. 588,. §698. denial and separate admission, p. ."588, §699. defendant's motion for judgment for admit- ted defence, p. 689. §700. defendant may move that plaintiff have- judgment, p. 589, §701. 5. Judgment on demurrer, effect of. p. 427,- §520, [and see Interlocutory Decisions.] 6. Judgment on particular pleas. on a plea of estonpel, p. 549, §f^4fi. n. on plea in abatement (I), p. 4'28,'§.621. for or aeainst one of several joint parties^ p. 814, §1032 INDEX. 859 7. Actions on judgments, general allegation enough (D), p. 241, §277. need not be annexed or filed to pleading, in action on, p. U94, §861. not a " written instrument " (D), p. 209, §234. not shortly pleaded as an instrument for payment ot money (D), p. 180, §198. — as to court of sister State (D), p. 242, §278. special jurisdictlou in sister State (D), p. 242, §279. ^ United States Court practice, in court of first instance, p. 243, §280. — on error or appeal (D), p. 243, §281. allegation of remaining in force CD), o. 244 §282. ^ jurisdiction of original cause ot action (D), p. 244, 8283. " statutory short allegation, " duly given or made " (D), p. 245, §284. of Court of United States or of sister State (D), p. 248, §285. when leave to sue on must be alleged (D), p. 249, §287. suit on, not a federal question, p. 575, §678. denial, p. 732, §919. recovered pending suit competent, p. 720, §890. and recovery on original ground (D), p. 329, §410, n. award, or account stated, and the contract on which it was had, and election be- tween, p. 595, §705. 8. Judgment as a defence, [and see Former Adjudication, Former Recovery, and Estoppel.] former recovery as a merger and bar, p. 723, §895. JUDICIAL NOTICE, dispensing with allega^ tion, p. 28, §36; p. 52, §55. of rules ot court and practice (D), p. 275, §337. of tact inconsistent with allegation, p. 614, §731. of illegality, p. 731, §914, n. of public statute (D), p. 276, §340. of private statute (D), p. 286, §348. of private statute recognized by public, p. 278, §340, n. 4. of State law by United States Court (D), p. 243, §881. ot sister State statutes, p. 723, §894, u. ; (D), p. 231, §260. that State is one ot the United States, p. 312, §384. as to courts ot sister States (D), p. 242, §278. JUDICIAL SALE, authority to make (D), p 246, §284. n. JURISDICTION. 1. In General, meanmg ot (D). p. 300, §368. preliminary allegation (D), p. 16, §21. as dependent upon issue as to amount or value, p. 190 §209, n.; p. 441, §540 ot person, waiver by appearance (D), p. 11, §13. of action without precedent, p. 80, §94. give equitable relief (D), p. 90, §102. "iurisdiction clause" allegmg want ot remedy at law, p. 109, §117. 3. Making objection to the jurisdiction of the court. obiection not available under demurrer for Misjoinder, p. 350. §426. denial ot jurisdictional fact must be posi- tive, not on information and belief, p 499 §604 denial ot citizenship, p. 503, etc., §§610. want of, over counterclaim (D), p. 401, §484. several causes of action, p. 567, §bb». transitory action between non-residents, p. 567, §670. waiver— where plaintiff's pleading shows. want of jurisdiction, p. 668, §671. — by proceeding after objecting, p. 669, §672. exclusive jurisdiction of another court,. ■p. 570, §673. objection to service, by answer, p. 571, §674.. — interior court of local jurisdiction— Ser- vice within limits, p. 571, §675. — residence, etc., p. 572, §676. federal question cases, p. 672, §677. partieular classes ot cases, p. 574, §678.. citizenship cases, p. 576, §679. — citizenship appearing in other parts of the record, p. 676, §680. parties collusively made or joined, p. 676,. §681. ranging parties to afEect jurisdiction, p. 676, §682. amending to defeat objection, p. 576, §683. in United States Courts, p. 678, §684. 3. Jurisdiction of some other pleaded. proceeding statutory allegation as to former judgment, etc., p. 733, §920; (D), p. 246, etc., §284, etc. implied by " duly," p. 711, §873. tacts giving, must be fully pleaded it not- pleaded under the statute (D), p. 245, §284. how pleaded, Id. want of jurisdiction of the subject, p. 734,. §921. in United States Courts, p. 734, §922. evidence of lack of citizenship, p. 735, §923. jurisdictional facts ot judgment, etc., pleaded, see Judgments. reciced in warrant (D), p. 202, §228. controverted under general denial, p. 633. §756. jurisdictional recitals, effect ot denial, p. 733, §919, n. JURY, waiver of not superseded by amend- ment, p. 771, §976. not to define the issues, p. 773, §980. not to decide as to what is material, p. 775,. JUS'TIFIOATION, must state facts in details, p. 391, §467. denial does not let in, p. 633, §766; p. 757, §964. not inconsistent with denial, p. 383, §460, n. coupled with admission, p. 458, §656. " JUSTLY DUE," statutory form of pleading on an account (D), p. 125, §183. KNOWLEDGE, presumption that some mat- ters are within pleader's knowledge, p. 502, §609. imnlied by permission (D), p. 272, §330. ot falsity as essential to fraud, p. 726, §900. how alleged (D), p. 264, §316. or information sufficient to form belief, denial of. p. 499, §605. ot contention does not disprove surprise, p. 763, §969. , , „ . . of fact before trial ground for refusing amendment, p. 763, §969. LACHES avails though not pleaded, p. 793, §1013. ground ot demurrer, p. 249. §286. available in equity under demurrer, tor m- sufflciency, p. 195, §818. as barring interest, p. 732, §918. , LANGUAGE ot instrument lor payment of money (D), p. 183. §801. instrument m foreign language (D), p. 306, §330- ,..,., document in foreign language admissible under translation, p. 701, §856. LAW distinguished from fact, p. 121, n. [See also Conclusion.] «60 INDEX. liEASE, allegation of lease of use and occu- pation (D), p. 83, §97, n. — performance of condition precedent (D), p. 167, §185, n. accounting in equity under railroad lease, p. 94, §10% n. XEAVE for assignee's sale (D), p. 133, §144. to sue, what must be alleged, p 249, i287, ~ form of allegation, p. '-ifyl, §.'88 omission to obtaiu or allege, p. 735, §924. to pleafi inconsistent defence, p. 550, §648, n. — supplemental pleading (D), p. 417, §604. LEGACY, action for probate implies lettei-s (D), p. 49, §53. multifariousness, p. 363, §434, n. LEGAL CAUSE OF ACTION distinguished from equitable (D), p. 90, etc. LEGAL EFFECT, what is pleading according to (D), p. 152, §170. document pleaded by (D), p. 203, §237. of by-law, p. 656. §793. of contract, p. 663; §805. allegations inconsistent with document (D), p a06, §a3. LEGAL FICTION (D). p. 51, §54. LEGAL PROCEEDINGS [see Duly; Eegu- larity; Rules of Court; Service]. not a " written instrnmeut." p. 209, §234. LETTERS, wlien the foundation of an action (D), p. 211, §236, n. necessitv of verified denial, p. 531, §615. LETTERS TESTAMENTARY, allegation of issue (D), p. 298, §366. LIABILITY. A conclusion of law, p. 852, §289. LIBEL, allegation of malice, p. 296, §363, n. joinder of causes of action with, p. 342, §420. LICENSE, denial does not let in abandon- ment, p. 758, §964, n. LIEN [see also Adverse Claim:] A conclusion of law, p. 353, §390. of bailee (D), p. 30, §40 ac tion to recover debt, and enforced lien (D), p. 347. §433. execution sale not awarded on failure to prove lien, p 830, §1037, n. MFE OF PARTY presumed (D), p. 11, §13. LIMITATIONS (statute of) when available on demurrer, p. 253, §291. form of necessary objection, p. 736, §925. how special limitations are to be taken ad- vantage of (D), p. 363, §391. in federal court (D). p. 35. §31, n. of actions against guardian (D), p. 98, §106. time required after demand and before suit to be brought (D), p. 166, §184, p. action for account is for a judgment other tlian for a sum of money, p. 93, §105, n. not available under answer of payment, n. 752, §953. effect of plaintiff's alleging facts suspending the statute, p. 469, §567, n. IIMIIED JURISDICTION court of (D), p. 301, §370. LIMITS OF THE ISSUE, defining, see Issue. LIS PENDENS demurrer for pendency of former action, p. 373. §§448, 449. LOCAL JURISDICTION, court of (D), p. 301, §370. LOST INSTRUMENT, loss need not be alleged , p. 693, §850. excuse for not furnishing exhibit (D), p. 235, §353. statute requiring verified denial, p. 531, 8615; p. 586. §633. LOWEST BIDDER (D), p. 37, §42. LUNACY [see Insanity.] MAINTAINING. Meaning of allegation, p. 253. §893. ■" MAKING " of contract (D), p. 144, §164, allegation of, lets in delivery, etc., p. 663, §-(01, TMALICE in allegation of tort, p. 396, §363. may be surplusage, p. 757, §962. informal allegation of, p. 757, §962. allegation of and mere negligence proved, p. 808, §1027, n. MALICIOUS PROSECUTION, judgment or proceedings not necessarily exhibits (D), p. 314, §339. joinder of other causes of action with, p. 343, §420. with separate count for false imprisonment (D), p. 76, §87. MANDAMUS in highway case, p. 33, §42. MAP used in pleading, p. 206, §232. MARK, deemed a signature, p. 529, §625. MARRIAGE, and result of change of name, p. 539, §625. presumption of continuance (D), p. 51, §53, n. MARRLA.GE SETTLEMENT, premature ac- tion, p. 118, §121, n. 6. MARRIED WOMEN, the name of (D), p. 255, §396. sued as sole (D), p. 354, §293. assessment of stock (D), p. 45, §50. capacity to hold stock, p. 371, §336, n. as joint party with husband, p. 68, §77. waiver of objection to want of legal capa- city to sue, p. 657. §793, n. MASTER AND SERVANT, aUegatlon of the relation, p. 127, §136, n. non-payment by decedent (D), p. 262, §309. compulsion by master (D), p. 139, §156. whose negligence (D). p. 260, §305. MATERIAL ALLEGATION, what is, in sense of being i.ssuable, p. 438, §536. MATERIALITY caused by the course of the trial, p. 617, §737. MECHANIC'S LIEN, general allegation of performance (D), p. 205, §339, n. joinder of action by separate lienors, p. 335, §431. — claim to set aside conveyances (D), p. 3o.i, §412, n. MEDICAL EXPENSES not recoverable with out special allegation, p. 683, §831. MEDIUM OF PAYMENT, p. 749, §948. variance between bill of particulars and evi- dence, p. 638, §749. MEMORANDUM, necessity of verified denial, p. 531, §615. MERGER by former recovery, p. 723, §895. MESNE PROFITS, facts occurring pending the action, p. 717, §882. MINING CONTRACTS, accounting for royal- -, ties(D), seep. 100. §108. MISJOINDER [see Joinder and Causes of aC' tion and Parties], of parties form of demurrer for, p. 69, of plaintiffs objected under demurrer for insufficiency, p. 67, §76. of defendants, not ground for demurrer, p. 71, §80. of parties severally liable on the same in- strument, p. 368, §441. by com mingled statement of cause of action, p. 338, §409. inconsistent with demurrer for insufficiency, p. 8, §9. of causes when ground for compelling elec- tion, p. 591, §703. not ground for dismissal at the trial, p. 583, §691. MISNOMER of a party on the record, p. 737, §936. oral evidence of mistake in writing, p. 738, §927. as clerical error, p. 44, §48, xi. 4. in case of verified denial, p. .539, §624. demurrer for misnomer, p. 254, §294. amending, p. 739, §938. ' MISTAKE. General allegation (D), p. §295. necessary allegation, p. 740, §929. — alternative, p. 740, §930. INDEX. 861 demand of reformation, p. 740, §931 mutuality (D), p. S54, §295a. as to the law, disregarded (D), p. 83, 696 allegation not pointing to tlie party (D), in pleading clerical, p. 43, §48, as ground of reformation not sustained bv proof of fraud, p. 233, §>63; p. 808, §1027 n joinder with fraud, p. 698, §708. reformation joined with claim for recovery. (D), p. 333, §412, & n. ■'' does not avail under allegation of breach of contract, p. 803, §1037, n. 3. as an avoidance though not pleaded, p. 741, MITIGATION OF DAMAGES, how pleaded in answer, p. 393, §469. sufficient of statement of matter as partial defence, p. 392, §468. evidence of, p. 685, §839. admissible at common law under general issue, p. 633, §756. MIXED QUESTION of law and fact (D), p. 63, §68. MODE OF TRIAL as dependent on the frame of action, see p. 818, etc. difference not objection to joinder, p. 347, §434. MODIFICATION OP CONTRACT, and how alleged, p. 665, §808. MONEY DEMAND, action for may be equit- able, p. 91, §104. MONEY LENT Las to demand, see Demand], allegation of non-payment (D), p. 174, §191. MONEY PAID, if request be alleged promise need not be (D), p. 143, §161, n. surprised by facts not alleged though ex- pected to be proved, p. 450, §545. MONEY RECEIVED, accounting in equity when required _(D), p. 95. etc. an equitable claim to reach specific fund (D), p. 84, §98. instrument by which it was received not a necessary exhibit (D), p. 213, §338. joined with claim to cancel interest (D), p. 332, §413. recovery on either of several grounds (D), p. 330, §411. different grounds of recovering back, elec- tion not compelled, p. 698, §708. and fraud inducing payment (D), p. 340, §418. MORTGAGE not shortly pleaded as an instru- ment for payment of money (D), p. 180, §198. allegation that absolute deed is (D), p. 39, §40; p. 464, §563, n. — not sufficient (D), p. 201, §326. " subject to," a conclusion of law (D), p. 253, §989. MOTION [see Amendment; Election; Judg- ment; Indefiniteness and Uncertainty; Non-suit; Dismissal; Striking out], for judgment on the pleadings see p. 586. ■■-for fr-ivolousness, p. 684. §693. n. remedy for ambiguity, p. 35, §42. to exclude evidence for insumciency of pleading, p. 608, §723. to compel election, see p. 590. to strike out, effect of granting on admission of evidence at the trial, p. 6, p. 037, §761, n. evidence effect of omitting, p. 796, §1018. for failure to furnish exhibit, p. 218, §246. because of neglect to file or annex exhibit, T> 317 §244 MUNICIPAL CORPORATIONS (D) , p. 138, §1.53, n. Tillage advanced to city (D). p. 185, §204, n. when iiy-law must be pleaded, p. 745, §940. presentation of claim (D), p. 134, §146, etc. liability for discharge of cannon (D), p. 37^ MULTIFARIOUSNESS, alternative reUef (D),. p. 87, §100. who may demur for, p. 358, §433, etc. MULTlPLIcri'Y of details dispensed with. (D), p. 58, §63. [of suits in reference to accounts, see Ac- counting.] MUTILATION of pleading by striking out,, and effect on admission of evidence, p. 637, §761. . 'f ' MUTUAL ACCOUNTS [see Accounting]. MUTUALITY in contract (D), p. 144, §163. of conditions in contract (D). p. 169, §188. of mistake, p. 355. §2»5a. NAME [see also Misnomer]. contract, etc., in wrong name, p. 255, §296^ name unknown, p. 256, §297. initial, p. 356, §398. introductory description of plaintiffs, p. 256. §299. repeating names of parties, p. 3.57, §300. title and body of pleading, p. 357, §301. singular and plural, p. 258, §302. abbreviation of, p. 123, §129, n. change of, in case of verified denial, p. 529, §634. variance in, p. 761, §966, n. of guardian as showing capacity, p. 321,. §398. NECESSARY PARTY, who is, p. 870, §443. NECESSITY, allegation of fact, p. 268, §303. NEGLIGENCE. General allegation, p. 359,, §304. form of allegation, p. 260, §305. agency, p. 260, §306. indirect allegation, p. 261, §307. contributory negligence, p. 361, §308. NEGATIVE, general allegation sufilcient, p. 59, §04. — burden as to proof, p. 785, §988. pregnant, p. 483, §586; p. 486, §587; p. 489, §590, NEGLECT, to use stipulated diligence (D), p. 176, §194. general allegation, p. 741, §933; (D), p. 36, §43. "Gross " and " wilftd" negligence, p. 743, §936. — denial, p. 744, §937. allegation of employee's negligence (D), p. 137, §136, n. admission of (D), p. 39, §44, n. 1. denial of defendant's negligence, p. 742,, §935. . non-compliance with customary precau- tion, p. 743, §934. denial and allegation of contributory negli- gence, p, 644. §644, n, general negative of contributory (D), p. 59,. §65. variance in circumstances, p. 761, §966, u. details amendable, p. 765, §970, n, wilfulness in case of (D), p. 294, §360, n. the effect of proving under allegation of wilful wrong, p. 806, §1037, n. joinder of different kinds, p. 597, §707. — other causes of action with, p. 343. §421. — cause of action against city and against" person who caused defect, p. 353. §431, setting aside release for claim, p. 348, §424, u. statutory action for (D), p. 283. §345, — grounds for recovery, election not com- pelled, p. 600, §711. NEW MATTER as constituting a defence,, p. 391, §466. in answer, traverse without reply, p. 538,, §637. denial in form of, is mere denial still, p. 538. §639. as constituting a counterclaim, p. 394,, §473. 86a INDEX. TSEW PROMISE, plaintifflmay allege to avoid anticipated pleaotdisoharge.p. 469, §567. n. NEW YORK SUPERIOR CITY COURTS, allegation of jurisdictional facts not neces- sary, p. 303, §378. l^EXT OF KIN [see Heir]. NON ASSUMPSIT, whea must be Terifled, p. 5-J2, §615. NON EST FACTUM, when must be verifled, p. 50?, §615; p. 582, §615. NON JOINDER, of necessary or indispensable party, see p. 369, §442, etc. NON-PAYMENT, mistake in aUeging (D), p. <«,§«, n. 2. by wlioin, p. 263, §30i). of money contract (D), p. 174, §191. where several parties are concerned (D), p. 177, ,§196. NON-PERFORMANCE [see Breach]. NON RESIDENCE, as an objection to juris- diction, p. 57vi, §676. NON RESIDENTS, declining jurisdiction be- tween, p. 667, §670. NON-SUIT, not allowed for admission in one of several defences, p. 778, §988, n. after evidence in, p. 775, §982. may be directed on admission even after going into evidence, p. 816, §1036. in United States Court, p. 774, §981. *' NOT," clerical omission, p. 43. §48, n. 2. NOTES AND CHECKS, see Bills, Notes, and Checks. NOTICE, burden to allege, p. 262, §310. general allegation, p. 363, §311. statutory requirement, p. 263, §312. before suit, as a condition precedent (D), p. 165, §184. posting notices, p. 263, §313. reasonable notice, p. 263, §314. denial of notice, p. 264, §315. knowledge. Facts implying notice, p. 264, §316. of intent to prove, not an allegation, p. 612, §727; (D), p. 54, §56, n. 3. of special matter not a part of declaration, p. 523, §616, n. — admission in, p. 455, §552. NUISANCE, general rule, p. 265, §317. allegation of probable effect (D), p. 28, §37. location of mill (D), p. 34, §43. variance, p. 744, §938. what cause of action may be joined with, p. 348, §424, n. joinder of action, against one for causing, and another for continuing, p. 363, §431. abatement and damages not misjoinder (D), p. 3.32. §412. NUMBERS, used in pleading, p. 132, §139. OBJECTION, ground of, p. 797. §1019. to evidence necessity of, p. 796, §1018, etc. OCCURRENCES, pending suit see facts oc- curring pending suit, p. 604, §716. OFFER, to whom and where, p. 265, §318. of performance of actual and dependent conditions (D), p. 169, §188. to do equity, p. 266, §319. omission of offer to do equity, p. 745, §939. OFFICER, capacity to sue (D). p. 65, §72, n. accounting in equity (D), p. 98, 99, §106, n. allegation of act on behalf of town, p. 138, §136. n. 4. — imputing intent (D), p. 341, §276, n. presumption of duty (D), p. .50, §63, n. pleading determination of and his jurisdic- tion [see Judgment]. jurisdiction to make determination or order (D), p. 245, §284. statutory limit of time for suing, p. 118. §124, n. statutory condition in contract of (D),p. 166, §184. OFFICIAL PROCEEDINGS, not a " written instrument " (D), p. 209, §234. OMISSION, to amend after amending com- plaint, p. 424, §517. " ON OR ABOUT " in stating date (D), p. 195, §317. OPINION, allegation as to future (D), p. 88, §37. OPTION, election under, p. 330, §868. ORAL DEMURRER, p. 1, ta. by motion to dismiss at the trial, p. 579, §685, as ground for excluding evidence, p. 608, §732. at trial not encouraged, p. 686, §695, n. ORAL EVIDENCE of fraud defeating writ- ing, p. 726, §903. of mistake in writing, p. 738, §927. ORDER entered pending suit competent, p. 720, §890. ■ giving leave for amending or supplemental pleading not an adjudication, p. 719, §887. of county ofBcers, insufficient allegation (D), p. 53, §56, n, 1. of court or officer, how pleaded (D), p. 246, §2)5, n. — what provable under denial, p. 733, §919,n. ORDINANCE [see also By-laws]. must be pleaded, p. 745. §940. how pleaded, p. 267, §320. OUSTER, how alleged, p. 711, §874. OWNERSHIP, general allegation of, p. 268, §321; p. 746, §941. — after ownership shown in third person, p. 269, §322. absolute or in trust, p. 40, §46. evidence that plaintiff is not the real party in interest, p. 753, §954. of document annexed or filed as foundation of action (.D), p. 216. §243. evidence of title, p. 269, §323. defeasible ownership, p. 270, §324. of policy, not equivalent to insurable inter- est (D), p. 47, §51. denial, p. 746, §942. in case of unveiified denial, p. 533, §628. in a stranger admissible under general denial, p. 688, §844. alternative source of title, p. 270, §325. ownership imports capacity to own, p. 370, §326. presumed to Continue, p. 271, §337; (D), p. 194, §216. OYER, in case of several counts (D), p. 16, §31, n. 1. demurrer after, p. 208, §233. statutory substitute by annexing or fiUng exhibit, p. 695, §862. PARAGRAPH, denial by reference to number of, p. 482. §684. PARENT AND CHILD, indirect allegation of relation, p. 42. §47, n. 3. necessity of alleging special damages (D), p. 190. 8210, n. PARI DELICTO, must be pleaded, p. 727, §908. PARTIAL DEFENCES, p. 391, etc. PARTICULARS [see Bill of Particulars; and Account]. PARTITION, allegation of title, p. 293, §358, n. descent (D). p. 199, §224. seizin implies possession (D), p. 48, §52, n. title deeds not necessary exhibit (D), p. 314, §240. value of matter in demand in federal court, p. 304, 9377. negativing ownership of other lands (D), p. 63, §67. infant's answer not denying, is not an ad- mission, p. 470, §569. multifariousness, p. 360, §433, n. what causes of action may be joined with (D), p. 848, §424, n. joined with action to set aside deed and have dower (D), p. 380, §411, n. 1. joinder of with cloud on title (D), p. 333.> §412, n. ' INIJEX. 863 PAETIES [see Detect of, Misjoinder of; see also IVIisaoiuer]. necessary party, who is, p. 370, §443. amendment as to description, p. 768, §972. misnomer, p. 737, §§926, 938. presence of improper party, p. 366, §438. proper allegation of person suing on a sev- eral interest, p. 373, §447, n. suing for benefit of otliers (D), p. 256, §299. co-plaintiff not jointly interested, p. 307, §439. . persons severally liable on the same instru- ment, p. 368, §441. • variance as to individual or representative capacity, p. 811-813, §§1028-1031. ■objection to misjoinder oC cause of action turning on involving different claims af- fecting different parties, p. 351, etc., §§430- 436. collusivel.y joined to affect jurisdiction, p. 6T6, §681. — ranging, to affect jurisdiction, p. 576, §682; p. 317, §391. plaintiff not real party in interest, p. 753, §954. demurrer for defect of, p. 369, §443. brought in, pending suit, p. 417, §508. •defect of, cured by supplemental pleading, p. 412, §497. substituted party miay proceed under orig- inal pleading, p. 425, §523. performance by third person (D), p. 168, §186. who to verify where sworn denial is re- quired, p. 527, §620. PABTNERdHIP, allegation of existence of, p. 530, §625, n. general allegation, p. 27], §328. description as an allegation (D), p. 42, §47, n. 1. omission of "limited," p. 254, §294. admission or denial of execution of instru- ment may include admission or denial of partnership, p. 534, §630. execution in firm name in case of verified denial, p. 529, §625. defect of parties, p. 747, §948. joint act, or firm act, p. 748, §944/ separate individual act, p. 748, §945. abortive special partnership, p. 748, §946. and agency as alternative grounds (D), p. 85, §99, n. implied obligation different from express, p. 804, §1027, n. recovery for share of profits as compensa- tion for services, p. 803, §1027, n. 3. — against one of several members of a firm, p. 814, §1033. individual right and survivorship, misjoin- der, p. 864, §435, n. action against survivors and representatives of deceased (D), p. 70, §79. Tvaiver of objection to want of legal capa- city to sue, p. 657, §793, n. action for dissolution not amendable into action for services, p. 767, §970, n. — recovery for loan not allowable, p. 796, §1017, n. joinder of several with jomt causes of ac- tion, p. 351, §480. joint demurrer (D), p. 12, §14. false representation of being partners, p. 749, §947. proper parties to action agamst assignee for creditors (D), p. 115, §123. accounting in equity (D), p. 96, §106, n. PARTY WALL, complaint m equity tor pay- ment (D), p. 91, §104. PATENT, allegation of patentableness (D), p. 63, §68. n. accounting for royalties (D), p. 100, §108. form of damage action for infringing, p. 24, multifariousness, p. 360, §433, n, plea of foreign (D), p. 129, §137, n. raises a federal question, p. 575, §678. PAYiVIENT or agreement to pay, p. 40, §46, n. 2. not available if not pleaded, p. 803, §1037, n. 4. otherwise than in money, p. 271, §329. medium, p. 749, §948. — of and release, variance between bill of particulars and evidence, p. 628, §749. by third person, p. 750, §949. set-off, accord, etc., p. 750, §950. may be proved under allegation of accord and satisfaction, p. 640, §766. admitting part payment by way of preclud- ing plea, p. 468, §567, n. compulsion (D), p. 139, §156. admission by payment into com^ and ten- der, p. 456, §563. denial, p. 760, §951. denial of non-payment not sufficient, p. 538, §637. down or in advance, p. 752, §953. presumed from lapse of time, p. 614, §730. statutory presumption or bar, p. 7."3, §953. not inconsistent with usury nor with surety- ship and extension of time, p. 388, §460. PENAL ACTIONS are not criminal (D), p. 80, §93. PENALTY, necessity of pleading ordinance, p. 745, §940. reference to statute in complaint, etc., (D), p. 278, §341. statutory action in Federal court (D), p. 24, §39. instrument not necessarily an exhibit (D), p. 213, §388. combining several violations (D), p. 112, §120. several grounds for one recovery (D), p. 829, §410. joinder of other causes of action with, p. 343,, §421. not misjoinder with nuisance (D), p. 332, §413, n. PERFORMANCE of conditions, see Condi- tions. when a mere conclusion (D), p. 161, §182. of contract (D), p. 27, §34. where several parties are concerned (D), p. 177. §196. possession implies delivery (D), p. 49, §52, n. PERMISSION (D), p. .37, §42. implies knowledge and consent (D), p. 272, §330. PERSON, variance between bill of particulars and evidence, p. 628, §749. joinder of injuries to,- with other causes of action, p. 341, §420. PERSONAL INJURY, general allegation of damages, p. 681, §829. PLACE, when essential (D), p. 3.3, §42. omission to specify, disregarded after going into evidence, p. 621, §742. where cause of action arose (D), p. 302, §374. allegation of, and effect of denial, p. 441, §540. of offer (D), p. 265, §318. of posting notice, when need not be alleged (D), p. 263, §313. performance of actual and dependent con- ditions (Di, p. 169, §188. PLACE OF TRIAL as an objection to mis- joinder, p. 350, §426 FLEA, when affidavit is equivalent to verified plea, p. 526, §619. Bvnet' whether sufficiency is admitted by not de- murring, p. 780, §990. puis darrien continuance, p. 722, §893. to merits waived by plea in abatement, p. 561, §661. PLEADING, what constitutes the issue, see Issue. 864 INDEX. PLEADING— OojiiOTued. what kind of allegations invite an issue, see Allegatious. question as to service, p. 422, §511. question as to filing, p. 423, §512. substitute for lost pleading, p. 428, §523. substituted party, p. 4S9, §523. withdrawal of part of pleading, p. 423, §513. withdrawal at the trial, p. 423, §513. amended supersedes original, p. 423, §514. — unless both are answered as one, p. 424, §515. ^ omission to designate, p. 424, §516. omission to amend responsive pleading, p. 424, §517. delay to respond, p. 425, §518. demurrer overruled, p. 4a5, §519. demurrer sustained, p. 427, §S2U. judgment on plea in abatement, p. 488, §521. effect of successive pleadings and demurrer to the last, p. 426, §519. liberal construction of (D), p. 31, §42. — at trial, p. 584, §693. — after beginning to take evidence, p. 620, limits of the rule of liberal constniction, p. 468, etc. question of sutHciency raised on submission after evidence taken, p. 775, etc.; §983, etc. recovery limited bjr, p. 802, §1027. as affected by a stipulation, p. 430, §527, etc. stipulations as to character of pleading, p. 429, §584. — for trial on the merits, p. 429, §525. stipulation modifying the issue, p. 430, §526. stipulation repugnant to the pleading, p. 430, §537. power of counsel, p. 431, §528. executory stipulation for amendment, p. 431, §589. amending to get rid of concession, p. 432, §530. denial lets in different version, p. 433, §531. striking out, p. 435, §532. read without being put in evidence, p. 773, §979. as evidence, p. 14, §18, n.; p. 458, §555, n. PLEDGE, action to establish in equity and recover back the thing (D), p. 91, §104. PLURAL instead of singular, a clerical mis- take (D), p. 43, §48, n. ; p. 358, §303. POSSESSION, adverse, see Adverse Posses- sion. POSTING NOTICES (D), p. 363, §313. PEAOTICB, mode of alleging proceedings (D), p. 131. §141. [And see Duly, Regular- ity, and Rules of Court.] PRAYER for judgment as controlling relief, p. 818, etc., §1037. etc. for general reUef (D). p. 115, §130, n. — what may be granted under, p. 819, §1037. for leave to refer to document, p. 205,. §389, n. 4. PREDICTION, effect of, in allegation (D), p. 38, §37. • PRELIMINARY proof of genuineness under statutes requiring sworn denial, p. 710, §871. PREMATURE ACTION (D), p. 116, §134, etc. necessity of pleading the objection, p. 644, §775. necessary date (D), p. 193, §314. effect of contract postponing right of action until lapse of time after demand (D), p. 166, §184, n. PRESENTATION, or audit, etc., before suit (D), p. 133, 1146, etc. PRESUMPTION that matters are within pleader's knowledge, p. 503, §609. that pleader intended to plead well, p. 588, §697. allegation implying a fact not alleged, p. 449, §554. as to time of commencing action (D), p. 116, §184. in aid of interpretation (D), p. 31, §43. that absent party is living, p. 372, §447. that former suit is double vexation, p. 373^ §449; p. 374, §450. that two causes of action are repetitious- statements of the same, p. 603, §715. fact necessarily implied (D), p. 45, §50. not available if inconsistent with allegation^ p. 452, §547. of continuance of fact, p. 50, §53. pleading presumption of payment, p. 752, §953. legal need not be pleaded (D), p. 47, §52. of law by statute, how facts to be pleaded. p. 614, §730. adm' admission by demurrer, p. 87, §35. notice on demurrer, p. 11, §13. PREVENTION, how alleged (D), p. 237, §272. PRICE agreed, and value, p. 661, §800. PRINCIPAL AND AGENT, see Agency. PRIVrrY, allegation of, inserted by amend' ment, p. 767, §970, n. ; p. 770, §973, n. PROBATE, how pleaded (D), p. 246, §215, n. implies letters (D), p. 49, §58 n. PROCEEDINGS, " duly" (D),.p. 326, §255. PROCESS, issue of, as commencement of ac- tion, p. 717, §883. not noticed (D), p. 10, §13. PRODUCTION of document under unsworn denial, p. 706, §865. PROFERT and oyer, statutory substitute by annexing or filing exhibit, p. 695, §852. PROMISES, repeated promises of the same thing, election between, p. 592, §704. PRONOUN, relative, antecedent (D), p. 39, §45, n.; p. 44, §49, n. PROPERTY, joinder of injuriesto, with other causes of action, p. 341, §420. PROTESTATION, at common lafr, effect of, p. 452, §548. — and in equity, p. 459, §557. PROVING, allegation of (D), p. 298, §367, n. PROVISO or exception in contract (D), p. 160- §180. — consisting of conditions subsequent (D), p. 173, §18ll. exception which might have excused breach (D), p. 177, §195. in statute giving action (D), p. 280, §342. PUIS DARRIEN CONTINUANCE, p. 722, QUESTION OF LAW AND FACT, mixed (D), p. 63, §67. QUIETING TITLE, allegation of title (D), p. 293, §.358, n. joinder of cause affecting other parties, p. 354, §431. allegation that claim is wrongful (D), p. 285, §347, n. title deeds not necessary exhibit (D), p^ 214, §840. QUO WARRANTO, allegation of election (D), p. 46, §50. effect of plaintiff's alleging defect in defend- ant's title, p. 469, § 667, n. facts occurring pending the action, p. 717, §888. RAILROADS, alternative demand for injunc- tion or damages (D), p. 89, §100, n.; and see Corporation. RATIFICATION, an issuable fact, p. 272, §331. of agency for plaintiff (D), p. 11, §13. may be proved under allegation of author- ity, p. 656, §790. had pending suit competent, p. 730, §890, n. READY and willing, performance of actual and dependent conditions (D), p. 169, §188. REAL PARTY IN INTEREST, facts must be. pleaded, p. 758, §954. in contract made by agent (D), p. 151, §169. demurrer for insufficiency (D), p. 65, §73. INDEX. 865 objection not ground of dismissal at the trial, p. 583, §691. effect of statute requiring sworn denial of execution, etc., o 536, §634. REASONABLE NOTICE, general allegation not enough (D), p. 263, §314. REASONABLE TIME, allegation necessary, p. 273, §333. an issuable fact, p. 273, §333. meaning of, p. 273, §334. REBUTTAL, going into evidence may waive admission, p. 787, §1000. RECEIPT, necessity of verified denial, p. 531, §615. RECEIVER, capacity to sue (D), p. 65, §73, n. description of representative capacity (D), p. 257, §301. when leave to sue must be alleged (D), p. 349, §287. certificates of action on, joining claim to charge property with a trust, p. 355, §431. RESCISSION, not provable under allegation of fraud, p. 737, §905. RECITALS in document considered as allega^ tions (D), p. 57, §59 ; p. 302, §228. sufficient aUegatiun of consideration (D), p. 164, §173. BECOSNIZANCE, a " written instrument " to be filed or annexed (D), p. 208, §234. when leave to sue on must be alleged (D), p. 349, §287. form of alleging leave to sue (D), p. 351, §388. RECORD, necessity of alleging (D), p. 34, §43, n. 3. alleged by giving copy of certificate, p. 305, §239, n. 3. recording implies acknowledgment (D), p. 46, §50. ivnal what may be proved under denial of, ( p. 732, §919. KECOUPMENT, meaning of as distinguished \t from set-off, coimterclaim, and cross-bill, H p. 390. not let in under general denial, p. 674, §819. REDEMPTION, allegation that deed is a mortgage, p. 39, §40. — of mortgage not sustained by proof of agreement for reconveyance, p. 811, §1027, n. joint plaintiffs (D), p. 68, §76, n. asking in the alternative (D), p. 87, §100. under prayer to remove cloud, p. 819, §1037, n. offer to do equity in suit for (D), p. 266, §319. REDUNDANCY not ground for dismissal at the trial, p. 683, §691. REFUSAL, imports demand (D), p. 199, §235. to admit not equivalent to denial, p. 491, §593. REFORMATION, the instrument to be re- formed is the foundation of the action, and should be pleaded (D), p. 213, §237. allegation of mistake of fraud (D), p. 233, §263. for mistake (D), p. 330, §411. when must be demanded in case of mis- take, p. 740, §931. under complaint for recovery for fraud or mistake without reformation not allowed, p. 811, §T027. n. fraud substituted for mistake by amend- ment, p. 767, §970, n. when may be pra.7ed by amendment in legal action, p. 766, §970, n. and recovery on instrument as not needing reformation, p. 600, §710, n. of bond and recovery on instrument as re- formed, p. 348, §424, n. and enforcement in same action (D), p. 833, §412, n. joined with foreclosure or quieting title (D), p. 333, §412, D. REGULARITY [see also " Duly;" Service.] details need not be pleaded, p. 373, §335. presumption (D), p. 48, §52, n. in legal proceedings (D), p. 181, §141. — before judgment (D), p. 246, §215, n. of highway proceedings (D), p. 33, §43. implied by "duly," p. 711, §872; and see p. 326, §355. RELEASE, allegation of executing (D), p, 146, §164, n. does not import seal (D), p. 147, §165. allegation that instrument was insufScient (D), p. 201, §226. date of (D), p. 194, §214, n. and payment, variance between bill of par- ticulars and evidence, p. 628, §749, pending suit, how pleaded, p. 414, §501, etc. RELIEF limited by pleading (D), p. 113, etc. demand of, in supplemental pleading,, p. 418, §505. — reformation when necessary, p. 741, §931. counterclaim in case of, p. 395, §475. mere defence not demurrable because of unnecessary demand of, p. 393, §471. may be conditioned on doing equity CD), p. 266, §319. must be according to allegations, p. 803, §1037. several demands for, on same facts (D), p. 330, §411. variance as to ground for equitable, p. 809„ §1027, n. inconsistent demands of relief (D), p. 334, §413. demand of when demurrable, p. 112, §120. misjoinder of separate demand tor relief,. p. 367, §440. effect of prayer for general relief, p. 819, §1037. REMEDY AT LAW, what is (D), p. 104, §114. REMITTER of damages in excess of demand of judgment, p. 821, §1038. RENT, allegation of assignment of lease (D), p. 182, §141, n. loss of, as ground for damages, p. 681, §838. REPLEVIN [see also Ownership], allegation of plaintiff's OHuei-ship (D),. p. 270, §323, n. description amendable, p. 766, §970, n. with claim for salvage showing case within statute (D), p. 280, §342, n. entitled to possession (D), p. 294, §359. intent to defraud, p. 340, §376. wrongful detention, p. ;i95, §363, n.; (D), p. 300, §325. facts occurring pending the action, p. 717,. §882. increase pending suit, p. 719, §886, n. not amendable into specific performance,. p. 766, §970, n. action for possession may be equitable (D), p. 91, §104. REPLICATION not enough to annex exhibit- which should have gone with complaint, p. 701, §854. waiver ot omission to serve by trial, p. 815, §1033. statutory traverse of answers and replies, p. 538, §637. may aid answer, p. 552,' §650. bad denial, p. 404, §487. REPLY, avoiding not a confession, p. 548, §645, n. denial coupled with avoidance, p. 404, §488. departure, p. 404, §489. — allegations in support of complaint, but without variance, not a departure, p. 406, §490. of fraud a departure, p. 405, §489, n. to counterclaim good though departing from complaint, p. 558, §658. not necessary if counterclaim is not char- acterized as such, p. 539, §641. 866 INDEX. KEFLY— Continued. counterolaim against counterclaim, p. 406, §491. defendant may attack declaration or com- plaint, p. 408, §498. demurrer to unauthorized reply, p. 408, §493. plaintiff may attack plea or answer, p. 409, §494. insufflciency, p. 403, §486. waiver of omission to serve by trial, p. 815, §1033. may aid answer, p. 5Si, §650. EEPEESENTATION, allegation of, how in- terpieted (Dj, p. 34, §48. may equal fact (D), p. 47, §51. EEPKESENTATIVE parties suing for benefit of other,s (D), p. 256, §899. KEPDGNANCY of admission to protestation, p. 463, §518. between causes of action, and election be- tween, p. 591, §703. between allegations of complaint, and ex- hibit (D), p. 225, §351, n. 7. as ground of demurrer, p. 374, §336. BEQUEST, "although often requested," p. 19R, §283, n. EESIDENCE in citizenship cases, p. 312, §384. not an allegation of citizenship, p. 313, §386. as affecting jurisdiction, p. 318, §398; p. 578, §676. EESOLUTION of municipality not a " written mstrument " (D), p. 809, §234. EETURN of service not noticed (D), p. 10, §13. EEVEESAL, when provable under denial, p. 713, §876; p. 733, §919, n. EEVOCATION OF AUTHOEITY (D), p. 136, §150. — under statute requiring sworn denial of execution, p. 535, §632. of awat-d implies notice (D), p. 46, §50, n. EOYALTY CONTEACTS, accounting in equity,(D), p. 100, §108. EULES OP COUET, judicial notice, p. 275, §337. requiring formal allegation, p. 451, §546; (D), p. 62, §67. — exhibits to be annexed or filed (D), p. 201, etc. as affecting State practice in Federal court, D 28 etc saepe requi'situs (D), p. 198, §388. SALE [see also Demand, Damages]. general complaint for price (D), p. 35, §42, n. 4. action on account for (D), p. 124, §131. if request be alleged promise need not be (D), p. 143, §161, n. mutuality (D), p. 144, §163. imports consideration (D), p. 156. §174, n. at unconscionable price (D), p. 157, §176. hypothetical allegation, p. 611, §726, n. desci-iption of goods not necessary (D), p. 858, §303, n. performance of conditions (D), p. 169, §188. seller's allegation of delivery (D), p. 159, etc., §179, n. may import delivery (D), p. 196, §219. anticipatory refusal to perform (D), p. 173, §190: p. 179, §197. non-payment (D), p. 174, §191. custom or usage (D), p. 898, §366. unexpired credit when action was com- menced, p. 644, §775. bill of item not a " written Instrument " (D), p. 809, §334. order for goods not the foundation of the action (D), p. 810, §836. not an instrument required to be an- nexed or filed, p. 694, §851. agreed price, and fair value, and election between, p. 592, §704. amending to allege note for price, p. 764, §970, n. effect of bill of particulars and answer applying thereto, p. 377, §452, n. admission of sale and denial of other alle- gation, p. 457, §655. denial of unsoundness, allegation of notice to examine, and neglect to examine, p. 544, §644, n. claim for breach of warranty and unphed promise to repay money got by fraud, and election between, p. 593, §704. — not amendable into deceit, p. 765, §970, n. warranty and false representations, joinder of (D), p. 339, §417. false warranty joined with damages for de- ceit, election not compelled, p. 598, §708. allegation of fraudulent warranty and fail- ure to prove fraud, p. 804, §1027, n. not amendable into tort, p. 765, §970 n, action to estabhsh as pledge and recover back the same (D1, p. 91, §104, n. recoupment, p. 674, §819. reply of fraud a departure, p. 405, §489, n. "SAYS HE DENIES," p. 473, 8678. SEAL, allegation of (D), p. 37, §48; p. 147, §165 as dispensing with consideration (D), p. 163, §173. effect of omission to verify denial of instru- ment, p. 524, §617. SEAWORTHINESS, presumed though not pleaded (D), p. 49, §58. SECUNDUM ALLEGATA, judgment must be, p. 802, §1027. SEDUCTION, joinder of other causes of action with, p. 348, §430. SEIZIN implies possession (D). p. 48, §58 n. general allegation, p. 275, §338. SEPAEATED STATEMENT of single cause of action or defence (D), p. 74, §85. SEEVICE of process as commencement of action, p. 717, §883. objection to jurisdiction for illegality, p. 669, etc.. §672-674. of bill of particulars and omission to serve, p. 630, §752. of copy, of account mentioned in pleading, p. 640, §768. or answer on co-defendant, p. 565, §666. general allegation (D), p. 876, §339. SEEVICES [see also Damages]. plaintiff's allegation of performance (D), p. 159, etc., §179. etc. allegation of performance of condition pre- cedent (D), p. 167, §185, n. if request is alleged promise need not be (D), p. 143, §161, n. count for agreed price, and for fair value, and election between, p. 592, §704, n. anticipatory refusal to perform (D), p. 173, §190. anticipatory refusal (D), p. 179, §197. inconsistency of count for services and for wrongful discharge, p. 543, §644, n. action on account for (D), p. 124, §131. charges for, when matter of account in equity, p. 93, §105, n. 2. accounting for royalties, p. 100, §108. amended to allege ground for accounting, p. 764, §970, n. SE'T-OFF, meaning of, as distinguished from recoupment, counterclaim, and cross-bill, p. 390. does not let in accord and satisfaction, p. 750, §950. against counterclaim, p. 405, §489, n, SHAM DEFENCE not struck out at the trial, 43.5. §533. SHEEIFF, documents securing exemption not necessary exhibit in action for not levy- ing (D). p. 814, §889. denial of failure to return amended by sub- INDEX. 867 stituting excuse for non-return, p. 765, §970, n. action for false return by deputy and an- swer of justification, by direction of sheriff, p. 459, §556, n. joinder of action affecting different parties, and on bond, p. 355, §431, n. SHIPPING, part owners accounting in equity, p. 96, §106, n. SIQNATUBE of instrument annexed to plead- ing, p. 307, §238, n. by agent (D), p. 150, §168. —under unsworn denial, p. 705, §863. by mark, p. 629, §623. when denial, etc., must be verified, p. 507, §615, etc. SINGULAR instead of plural, a clerical mis- take (D), p. 43, §48; p. 858, §308. SLANDER byhusbandand wife (D), p. 41, §47. of title, allegation of malice, p. 896, §363. joinder of causes of action, p. 348, §480, n. SPEAKING DEMURRER, p. 8, §10. SPECIAL DAMAGES [see Damages]. SPECIAL DEMURRER and general, distm- guished, p. 6, §6. SPECIAL PARTNERSHIP, p. 748, §946. SPECIFIC DENIAL, what is, p. 477, §578. breach in contract, specification of, p. 667, §811. SPECIFIC PERFORMANCE of oral contract (D), p. 148, §166. remedy on contract to form corporation (D), J). 108, §111. allegation that one contract was an exten- sion of another (D), p. 89, §40. as to personalty, p. 108, §116, n. allegation of title (D), p. 894, §359. amending to proceed for damages, p. 767, §970, n. and prayer for damages or rents and profits (D), p. 333, §412, n. foreclosure of vendor's lien allowed, p. 819, §1037, n. joinder with claim for damages (D), p. 331, §111, n. STALENESS [see also Laches], available in equity under demurrer, for in- sufficiency, p. 195, §218. STATE PRACTICE, see United States Court. STATUTES [see also Foreign Law; Limita- tions; Statute of Frauds; and Statutory Actions], requiring exhibits to be annexed or filed, p. 801, etc. allowing short form of pleading instruments for payment of money, p. 181, 182, §198, n. requiring sworn denial, and effect of failure to comply, p. 388, §464. shifting the burden of proof or making an unverified denial equivalent to an admis- sion, p. 503, §610, etc. prohibiting action until after lapse of time, p. )18, §135. changing burden of proof (D), p. 79, §92. requirement of leave to sue (D), p. 849, §287. pi-nhibition on taking jurisdiction, p. 301, §371. authority for contract (D), p. 135. §148. public statute, — in other than penal actions, p. 376, §340. what may be pleaded as public, p. 378, §340, n. rendering contract illegal, p. 739, §913. creating illegaUty need not be pleaded (D), p. 336, §869. public, read into the complaint, p. 68, §55. allegation of Interpretation or effect, p. 384, §346. pleading in the words of the statute, p. 885, §347. action for penalty for an offence, p. 378, §341. new right or remedy given by statute, p. 879, §843. showing conformity to statute, p. 281, §848. allegation of compliance withstatutoiy con- dition, p. 888, §344. statutory condition in statutory action,, p. 283, §345. private statutes;— common law rule, p. 886. §348. — statutory short form, p. 886, §349. — effect of the statutory provision, p. 289,, §850. of other states, p. 289, §351. useless reference to (D), p. 83, §97, u. allegation of effect (D). p. 30, §40. — title under, p. 29.S, §368. STATUTE OF FRAUDS, rule as to pleading- contracts, p. 670, etc., §814, etc. — writing let in by general allegation. p. 659, §797. — avails under denial, p. 794, §1013. — where contract does not appear to be oral (D), p. 149, §167. — where contract appears to be oral (D),, p. 148, §166. — facts taking case out of, if alleged by plaintiff, are admitted by not denying,, p. 467, §567, n. STATUTORY ACTIONS [see also Statute; and Penalties], does not take away equitable remedy, p. 105,. §114, n.; §115. effect of special limitations as to time for bringing, p. 736, §925, n. in Federal court (D), p. 24, §J9. and coiimion law ground for same recovery,. election not compelled, p. 600, §711. joinder of other causes of action with, p. 343, §481. amendable into common law action, p. 765, §970, n. recovery of single damages on failure to- prove right to treble, p. 8J3, §1043. STATUTORY CONTRACT, conditions in (D), p. 166, §184. STATUTORY INSTRUMENT, consideration not necessary (D), p. 153, §173. STIPULATION cannot avoid statute (D), p. 7, §9. as to character of pleadings, p. 489, §584. repugnant to the pleading, p. 430, §537. executory for amendment, p. 431, §529. does not preclude amendment of issue, p. 771, §975. modifying the issue, p. 430, §536. for trial on the merits, p. 489. §525. for the purpose of giving jurisdiction, p. 568,. §671. not controlling contrary to statute (D), p. 4, §4. STRIKING OUT, allegation of agency, p. 130,. §137, n. 2. — interpretation, p. 31, §43. effect of (D), p. 16, §31. SUBMISSION TO COURT, not equivalent to denial, p. 492, §595. power and duty of the court. Pleadings, read without being put in evidence, p. 773, §979. — defining the is.sues for the jury, p 773, §980. — State practice in U. S. Court, p. 774, §981. sufficiency and consistency of the plead- ings and of the contentions upon the- evidence. Dismissal for insufficiency, p. 775, §982. — immaterial issues should not be submit- ted, p. 775, §983. — which cause of action, in ambiguous com- plaint, p. 776, §984. — alternative ground for conclusion of fact, p. 776, §985. — inconsistency in separate counts, p. 777. §986. ' effect on the defence of plaintiff's statement 868 IKDEX. SUBMISSION TO COVRT-Continued. of separate counts for same recovery, p 778, §987. — denial and avoidance, p. 778, §988. — inconsistent defences, p. 779, §989. — sufficiency of defence not admitted by not demurring, p. 780, §990, SUBROGATION, when allowable though not claimed in pleading, p. 795, §1016. iSUBSCRIBING WITNESS, statute requiring sworn denial does not include, p. 535, §631 . SUBSCRIPTION PAPER as foundation of an action (D), p. SIO, §a36. rule as to annexing or filing (D), p. 209, §235. performance of condition (D), p. 160, §179, n. necessitv of verified denial, p. 521, §615. SUOOESSION. General allegation, p. 289, §:35J. of corporation (D), p. 185, §204, n. SUMMONS, signature in Federal court, p. 23, §d8, n. 9. noticinKit on demurrer, p. 10, §12. SUPERIOR COURT, jurisdiction appearing, p. 301, §370. SUPPLEMENTAL PLEADING. Facts in furtherance of the original cause of action, p. 800, §1034. additional instalments, p. 800, §1025. facts in amended instead of supplemental ■ pleading, p. 801, §1026. facts which occurred before suit com- menced, p. 410, §495. facts subsequent but essential to cause of action, p. 411, §496. supplemental pleading as a means of bring- ing in facts occurring pending the action, p. 716, §882. .-supplemental complaint to set up further grievance enlarging measure of recovery, p. 718, §§885, 886, etc. — fact essential to the case. p. 716, §882. — exceptional actions, p. 716, §882a. — what is the time of commencing action, p. 717, §883. — fractions of a day, p. 718, §884. — lapse of time or further grievance en- larging recovery, p. 718, §885. — facts modifying' or supporting a good cause of action, p. 719, §886. — leave to file amended or supplemental .pleading not evidence of right, p. 719, §887. — amendment inserted in supplemental pleading, p. 719, §888. — waiver of objection that original is in- sufficient alone, p. 720, §889. — mere evidence, p. 720, §890. — facts in avoidance of prima facie de- fence, p. 721, §891. — repetition of same grievance, p. 721, §892. — amending as to facts occm-ring pending suit, p. 722, §893. curing defect of parties, p. 412, §497. facts merely adcfitional, p. 413, §498. unnecessary rehearsal of original, p. 413, supplemental answer, demurrable, p. 413, §500. defence arising after suit, in legal action, p. 414, §501. — in equitable action, p. 415, §502. — right of new party to answer, p. 417, — leave to plead need not be alleged, p. 417, §504. -demandof relief, p. 418, §505. in demui-rer, disregarded, p. 4, §4; p. 8, §10. in pleading demurred to disregarded, p. 73, §83; pp.81. 82, §§95,96. cause of action not within the 3urisdiction, p. 567. §669. ^ . ^ , description of capacity may be rejected, p. 322, §400, as influencing interpretation (D), p. 38, §44. allegation of malice may be, p. 757, §968. tort in breach of contract, p. 805, §1027 n. disclosing a defence may be fatal (D), p. 119, §127. in denial, p. 491, §592. SURETYSHIP and extension, not inconsistent with payment, nor with usury, p. 383, §460. SURPRISE as an objection to variance, p. 762, §967. SUBROGATE, jurisdiction of, p. 230, §259. n. SWORN ACCOUNT from abroad as evidence, p. 6M, §769. TACIT ADMISSION equivalent to express, p. §570. TAXES, interpretation or effect of statute a mere conclusion (D), p. 284, §346. joinder of actions by several owners, p. 355, 470, §431. TAX LEVY not a " written instrument" (D), p. 209, §234. TAX PAYER'S action (D), p. 333, §412. — plaintiff's interest (D), p. 16, §21, n. 1. TAX TITLE (D), p. 50, §52, n. TELEGRAPH COMPANY, alternative ground for claim against (D), p. 85, §99, n. TENANTS IN COMMON, accounting in equity (D), p. 96, §106, n. TENDER, necessity and effect of alleging, p. 753, §955. and denial, p. 456, §554. admission by, and payment into court, p. 456, §553. performance of conditions (D), p. 169, §188. Interest, p. 289, §363. TENSE in pleading (D), p. 390, §355. THEORY OF CASE (D), p. 78, §89; (D), p. 84, §98. evidence not excluded for uncertainty, p. 610, §725. must be adhered to, p. 820, §1037, n. "THEREUPON " may mean in consideration (D), p. 156, §174, h. does not exclude other causes, p. 290, §354. TIME of accrual of cause of action (D), p. 117, §124. of offer (D), p. 265, §318. of delivery of contract (D), p. 144, §164. of audit or presentation before suit (D), p. 135, §147. of performing mutual and dependent con- dition (D), p. 169, §188. of acci-ual or vesting of counterclaim (D), p. 400, §481. of commencing action what is, p. 717, §883. assigning cause of action (D), p. 132, §142. construction of allegation of, p. 36, §42. implied in allegations without dates, p. 290, §355. allegation of, and effect of denial, p. 441, §540. allegation of time, evidence against party making it, p. 452, §547, n. omission to specify disregarded after going into evidence, p. 621, §742. lapse of, after notice and before suit (D), p. 263, §312. in allegation of citizenship, p. 505, §613. of citizenship in giving Federal courts juris- diction, p. 314, §388. presumption of continuance of fact (D), p. 50, §53. supplied by reference to another count (D), p. 73. §83. n. 3. of making fraudulent representations, p. 725, §900. TITLE [see also Seizin; and as to Personal Property, Ownership], general allegation of, p. 291, §356: p. 764, §956. indirect allegation, p. 754, §957. derivation of title, with or without general allegation, p. 293, §367. INDEX. 869 (D), 531, adverse possession, p. 756, §959. Amending, p. 756, §960. allegatioa of conveyance as source p. 30, §40. — descent as a fact, p. 728, §910. denial in general language, p. 755, §958. deed, necessity of verified denial, p. §615. in stranger admissible under general denial, p. 688, §844. amending as to mode of derivations, p. 766, §970, n. several to same property, p. 615, §732. does not imply legal title (D), p. 103, §111, n. presumed to contmue (D), p. 194, §216. making of will is (D), p. 298, §366. under statute, p. 293, §358. " entitled" a mere conclusion, p. 294, §359. failure to prove, p. 756, §961. acquisition of easement (D), p. 229, §257. equitable title as giving iurisdiction to equity ^D), p. 90, §102. TORT [see also Confederacy, Damages, Negligence]. wilfulness sometimes essential, p. 294, §360. "wilful" an allegation of fact, p. 295, §361. " wrongful " and ''unlawful" mere conclu- sions, p, 295, §362. malice, p. 296, §363. informal allegation of malice, p. 757, §963. allegation of malice surplusage, p. 757, §963. justification inadmissible under a denial, p. 757, §964. ambiguity as to claim on contract or in tort, p. 446, §513. or contract, auLbiguity as ground for de- murrer, p. Ill, §119. when remedied in equity (D), p. 103, §111. repetition pending suit, p. 721, §892. election between and contract (D), p. 338, §418. and contract election should not be com- pelled if facts are the same, p. 602, §713. misjoinder with contract (D), p. 335, §415, etc. joinder with mistake, election not com- pelled, p. 598, §708, n. wilful wrong alleged and mere negligence proved, p. 806, §1027, n. with contract as alleged as matter of induce- ment; and no proof of tort, p. 804, §1027, n.; p. 806, §1027, n. contract with allegation of tortious breach and no proof of tort, p. 805, §1027, n. and contract, counterclaim of one against the other, p. 397, §477. waiver by defendant so as to counterclaim on contract, p. 399. §479. "TO WIT," effect of (D), p. 58, §60. TOWN allegation of act on behalf of it (D), p. 128, §136, n. 4. misioinder of causes of action affecting different, p. 353, §431, n. ■" TRANSACTION" what is, meaning of, and effect of statute as to joinder, p. 348, §425. what are the same (D), p. 836, §415, etc. allegation of being same transaction a con- clusion, p. 400, §480. TRANSITORY action between non-residents, p. 567, §670. TRANSLATION, pleading foreign document by (D), p. 205, §230. lets in original in foreign language, p. 701, §855. >. TRAVERSE [see also Denial]. statutory traverse of answers and replies, p. 538, §637. allegation of ownership of the tmng (D), p. 368, §321. entitled to premises (D), p. 294, §3.59. indirect admission of title, p. 542, §642, n. allegation of value of amount for purpose of giving jurisdiction in Federal court, p. 807, §378, n. act of one at request of another (D), p. 140, §158. place disregarded, p. 622, §742, n. allegation of wrongful taking; and proof of detention only, p. 808, §1027, n. allegation of damages, p. 189, §209. denial does not let in justification, p. 758, §964, n. inconsistent relief (D), p. 334, §413. joinder of other causes of action with, p. 343, §421. joinder of joint and several causes of action, p. 352, §430, n. qoinder with covenant, p. 341, §420. joinder of action affecting different parties, p. 355, §431, n. TRIAL, mode of, as dependent on the frame of action, see p. 818, etc. by jury, statutory right as preventing remedy in equity (D), p. 104, §114. mode of, no objection to joinder (D), p. 347, §422, n. TRUSTS, several plaintiffs (D), p. 67, §76. action for accounting (D), p. 94, §§105, n, 106. complaint in equity for conversion (D), p. 91, §104. as a ground of recovery where the allega- tion is of fraud, p. 809, 810, §1027, n. under allegation of validity, relief for in- validity not allowable, p. 820, §I037|, n. failure of proof of resulting trust, p. 802, §1027. indispensable party in action to avoid, p. 371, §445, n. rule in U. S. Court as to trustee of express trust or real party in interest, p. 66, §74. setting aside trustee's release and giving judgment against him fur negligence in- consistent, p. 820, §1037, n. liability under several trusts under same will, p. 365, §433, n. bona fide purchaser (D), p. 137, §153. TRUSTEES, preliminary request to trustee, etc., to sue, p. 297, §364. may sue for instructions on alternative al- legations (D), p. 89, §101. description of representative capacity (D), p. 257, §301. variance between allegation and proof as to individual or representative cause of action, p. 811-813, §§1028-1031. refusal to account (D), p. 47, §51. UNCERTAINTY (D), p. 78, §91. as ground of demurrer, p. 59, §65; p. 111,§119. "UNDERSTANDING," as meaning contract (D). p. 143, §162, n. UNDERTAKING, necessity of alleging leave to sue (D), p. 250, §287, n. recitals in, as allegations (D), p. 202, §228. joinder of joint obligees, p. 367, §439, n. allegation of breach (D), p. 176, §194. UNDUE INFLUENCE, hypothetical allega- tion, p. 611, §726. t allegation of, not sustained by proving want of consideration, p, 810, §1027, n. amendable by allegation of mental weak- ness, etc, p. 810, §1027, n. joinder of action affecting different parties, p. 354, §431. does not sustain allegation of fraud, p. 811, §1027, n. UNITED STATES COURT [see also Issue; Jurisdiction; Pleading; Federal Question; and Citizenship]. — remedy at law, p. 105, §114. n. judicial notice of State law (D), p. 231, §261. what statute theywill notice(D),p. 277, §340,n. denial of jurisdictional fact must be positive, not on information and belief, p. 499, §604. jurisdictional amount provable though not plead/d, p. 734, §922. allegation of citizenship to give jurisdiction p. 309, §380. 870 INBBX. UNITED STATES COUET-CojiWnued. nonsuit for defect in pleading or failure of proof, p. 774, §981. effect or removal of cause on the issue, p. 421, S509. ' equitable defences not allowed in legal ac- tion, p. 381, §460. mis]"oinder of, causes of action, p. 386, §404. igowers of amendment, p. 771, §978. btate practice followed in common-law ac- tions, p. 31, etc., §37, etc; p. 499, 1604. — as to allowing special matter to be given in evidence under a general allegation or notice, p. 607, §T21. — as to joinder of parties in common-law cases, p. 326, §404. — as to pleading judgments of State court (»), p. 343, §280. — as to exhibits (D), p. 226, §253. UNKNOWN NAMES, p. 256, §397. " UNLAWFUL " a mere conclusion, p. 395, UNSOUND MIND [see Insanity]. USAGE, necessity of pleading, p. 297, §365. when must be pleaded (D), p. 158, §178. form of allegation, p. 298, §866; p. 329, §257, n. 4. USE, allegation of (D), p. 41, §47. and occupation, action on account for (D), p. 124, §131. USER, allegation of, construed to mean ad- verse at trial, p. 628, §742, n. USURY, effect of statute requiring a sworn denial, p. 528, §621, n, precluded by not denying consideration, p. 471, §570, n. allegation of, liberally construed, p. 33, §43, n; p. 34, §43, 3, n. not inconsistent with payment, nor with suretyship and extension of time, p. 383, §460. payment and suretyship and extension of time not inconsistent, p. 883, §460, n. VACATUR for irregularity must be pleaded, p. 733, §919, n. " VALUABLE CONSIDERATION " generally enough (D), p. 156, §175. TALUE and agreed price, p. 661, S'S'^O. how shown for purposes of jurisdiction, p. 304, §376, controverted under general denial, p. 633, §756. diminution of rental as ground for damages, p. 680, §827. " VALUE RECEIVED" as allegation of con- sideration, p. 1.54, §173; p. 471, §570. VARIANCE [see also Amending], between writ and pleading, p. 10, §13. by not alleging immaterial part of contract, p. 664. §806. by misnomer, p. 7.39, §928. from allegation of amount, p. 649, §783. in manner of assignment of cause of action, p. 651, §785. in dates, p. 686. §840. between allegation of equitable and proof of legal cause of action, and conversely, p. 824 §1046, etc. partnership, and proof of joint or sev- eral contract, p. 748, §§944, 945. — bill of particulars and evidence, p. 628, §749. — allegations and exhibit (D), p. 222, §351. — exhibit or allegation, and original, p. 703, §868. allegation of express obligation and proof of obligation implied by law, p. 804,§1027,n, in circumstances of fraud, p. 726, §903 in circumstances alleged as negligent, p. 741, §9.33. as to conspiracy, p. 668, §796. — illegality fatal, p. 793, §1011. — nature of illegaUty, p. 730, §913. — source or extent of title, p. 756, §960. — Sunday law, p. 334, §366. of proof from allegation of nuisance, p. 744, §938. success on the evidence limited by the pleadings, p. 803, §1037. allegation of individual cause of action by plaintiff described as representative, p. 811, §1088. allegation of representative's cause of action- and proof of individual cause, p. 812, evasive or argumentative allegation, p. 130, §139. representativeicapaclty misdescribed, p. 813, §1030. counsel's practical construction of pleading, p. 813, §1031. ■ joint and several obligations, p. 814, §1033. omission to reply, p. 815, §1033. departure, p. 815, §1034. indeilnite allegation, p. 649; §783 from allegation, p. 649, §783. amending claim, p. 650, §784. a question for Court, p. 759, §966. immaterial, disregarded or cured by amend- ing, p. 759, §966. proof of surprise, p. 763, §967. previous knowledge does not disprove sur- prise, p. 763, §968. previous knowledge, ground for refusing amendment, p. 763, §969. amending as to cause of action, p. 764, §970^ amending as to defences, p. 768, §971. amending as to capacity, p. 768, §972. fact implied, p. 770, §978. inherent power, p. 770, §974. not precluded by stipulation to try issue, p. 770. §975. leave to amend does not supersede waiver of jury, p. 771, §976. bill of particulars, p. 771, §977. powers ot United States Court, p. 771, §978. VENDOR AND PURCHASER, plaintiff's per- formance, p. 161, §182, etc. performance of mutual and dependent con- dition (D), p. 169, §188. VENDOR'S LIEN, foreclosure of and per- sonal judgment for price joinable (D), p. 347, §433. ERD"" VERDICT, controlled by failure to verify denial, p. 799, §1023. — issue and admissions, p. 815, §1035. may be directed on admission even after going into evidence, p. 816, §1036. in excess of damages claimed, p. 821, §1038. VERIFICATION when necessary to put alle- gation in issue, p. 506, §610. of answer not involving merit, p. 506, §610, n. of bill of particulars, omissions of, p. 629 §751, demurrer for omitting, p. 76, §88. when omission not ground of demurrer, p. 388, §464. not needed of demurrer, p. 13, §15. statutes requiring pleadings generally to be verified, p. 520, §616. in Federal court, p. 34, §39. VERSION, different, not a denial, p. 496, §600. VEXATION, a previous action pending, p. 373. §449. VIDELICET, effect of, p. 58, §60. "VIRTUE WHEREOF," p. 4:18, §537. " VIRTUTE CUJUS," p. 438, §537. WAGERING contract, how aUeged (D), p. 336, §368, n. WAIVER.-1. In general. of objection to jurisdiction, p. 568, §671. by qualified appearance, p. 319, §395. of condition equivalent to perf oionance (D), p. 160, §179, n. INDEX. 871 of failure to furnish exhibit, p. 702, §856. not Inconsistent with denial, p. 548, §b45, n. of objection to want of legal capacity to sue, p. 656, §T93. of misnomer, p. 737, §926. ■of jury not superseded by amendment, p. 771,1976. . of objection that original complaint is in- sufficient without supplemental, p. 720, §889. — tliac plaintiff had not leave to sue, p. 735, — chut defendant is sued out of his residence, p. 3 IS, §i9-j. of tender wlien may be proved under allega- tion of tender, p. 753, §955. of tort so as to counterclaim on contract, p. 399, §479. of objection to form by stipulation to try on the merits, p. 430, §5'^5. — evidence, pp. 796, 797, §§1018, 1019. of part of the relief demanded, p. 819, §1037, n. of omission to allege payment into court, p. 753, §965. Objection to be taken by demurrer or answer, p. 558, §659. of objection to counterclaim, p. 561, §660. abatement, and merits, p. 561, §661. of misjoinder of causes by not demurring, p. 591, §703. 2. By not pleading. — estoppel : defendants waived by not pleading, p. 788, §1002. — plaintifC^s waiver of estoppel by not plead- ing when there was opportunity, p. 788, §1003. — what is " opportunity to plead " at Com- mon Law, p. 789, §1004. — the same— under New Procedure, p. 790, - waiver of conclusiveness of technical estoppel, p. 790, §1006. - estoppel proved by both parties, p. 791, 1007. - estoppel proved may avail, p. 791, §1008. - equitable regard to estoppel, p. 791, §1009. - illegality when available, p. 792, §1010. -variance, p. 793, §1011. - laches, avails though not pleaded, p. 793, §1012. - statute of Frauds, p. 794, §1013. - proper plaintiff, p. 794, §1014. - infancy of plaintiff, p. 795, §1015. - subrogation, p. 796, §1016. — rebuttal of cause of action proved but not alleged, p. 795, §1017. 3. By pleading. — of demurrer by answering, p. 20, §25. — of insufBcient allegation by taking issue, p. 437, §535. — of objection to evasive denial by replying (D), p. 502, §609. — of admission by going into evidence, p. 816, §1036. 4. By not objecting to evidence. necessity of objection, p. 796, §1018. evidence admissible on several grounds, p. 797, §1019. — of objection by entering on evidence, p. 620, §742. — of reply or replication by trial, p. 815, WANT OF CAPACITY, of jurisdiction, see Capacity, Jurisdiction. Want of Parties, s«e Defect of Parties. WANT OF CONSIDERATION shown under statute requiring sworn denials, p. 705, §862. as distinguished from fraud in inducing contract and from failure of con,sidera- tion, p. 673, §818. WARRANT, recitals in (D), p. 20,9, §228, n. WARRANTY, see also Sale, Carrier. WASTE, allegation of wrongful waste, and proof of negligence, p. 807, §1027, n. " Whereas," introducing allegation (D), p. 57, §59. "WHICH," antecedent of (D), p. 39, §45. WILFUL NEGLIGENCE, effect of alleging, p. 743, §936. not equivalent to wilful injury, p. 33, §42. WILFULNESS sometimes essential in allegation of tort, p. 294, §360, WILL, allegation of making, p. 398, §367. necessity of alleging death (D), p. 35, §42. in action to construe should be copied or filed or dehvered (D), p. 212, §237. indispensable party in action to cancel, p. 371, §445. avoid trust, p. 371, §445, n. cancelling probate, multifariousness, p. 360, §433, n. WITHDRAWAL of a cause of action for tort, p. 602, §714, of part of pleading at the trial, p. 423, §513. "WRITING OBLIGATORY," imports seal (D), p. 147 §165. " WRITTEN INSTRUMENT," what deemed (D), p, SOS, §234, etc. "WRONGFUL," a mere conclusion (D), p. 295, §362. 5»^